Written evidence from The Centre for Corpus Linguistic Approaches to Safeguarding Studies (CLASS Centre) (CSC189)

Education Committee

Children’s Social Care

The Centre for Corpus Linguistic Approaches to Safeguarding Studies (CLASS Centre)

Evidence Submission responding to

The Education Committee. Children’s Social Care – Call for Evidence.

31st January 2025

Lead organisation

Centre for Corpus Linguistic Approaches to Safeguarding Studies (CLASS Centre), Lancaster University.

Authors:

Professor Lauren Devine, Lancaster University

Stephen Parker, Aston University

Dr Kevin Gerigk, Aston University

Dr Yi Liu, Aston University

Melanie Clinton, Aston University

Seymour Major, Lancaster University

Madeleine Palmer, Lancaster University

Grace Sutcliffe, Aston University

Megan Wright, Lancaster University

Grant References

Developing corpus approaches to safeguarding and family justice system research. Funded by the Economic and Social Research Council, Grant Ref: ES/Y002709/1

The 'Risk of Risk': remodelling artificial intelligence algorithms for predicting child abuse. Funded by the Economic and Social Research Council. Grant Ref: ES/R00983X/2

Rethinking Child Protection Strategy. Funded by the Economic and Social Research Council. Grant Ref: ES/M000990/1

Investigating the reasons for the Care Cases Crisis. Funded by the Nuffield Foundation, Grant Ref: JUS-43090

About Us

Our submission is made by the Centre for Corpus Linguistic Approaches to Safeguarding Studies (CLASS Centre), hosted at Lancaster and Aston Universities.  We are a group of inter-disciplinary researchers with expertise in law, linguistics, sociology, psychology and related disciplines.

Our programme of work is funded by the Economic and Social Research Council and the Nuffield Foundation, and our members have previously received support from Research England.

We are creating large, specialised collections of written texts relating to child protection and safeguarding that we are collating into machine-readable corpora.  Our data includes case-level data, and law, policy and practice material.  Our current focus is aspects of child protection and safeguarding system and identifying and classifying global child protection models for comparative analysis.

Executive Summary

This submission responds to questions about the operation of the child protection and safeguarding system in England in the context of rising demands on over-stretched resources.

There is no simple answer to the questions posed, and the questions raise linked issues.  The questions are very similar to those raised by four previous Committees where we have also submitted either written or oral evidence reflecting the ongoing nature of the areas of concern.

In our response we comment on the way in which Sections 17 and 47 Children Act 1989 and associated legislation is implemented in England.  The implementation is problematic. Since 2012, members of the CLASS Centre have consistently provided data and evidence to demonstrate and model the rising trajectory of demand and have explained the reasons for it.

In our submission we provide extracts from this data to show that demand on the system is largely system-led and framed in fiscal language and suggest re-examination of the notion of what is really causing unsustainable demand. We urge focus away from children and families as the key driver of demand and suggest attention is paid to the system itself and the privatised context in which it operates.

Our submission refers to the wealth of evidence we and others have generated, but which has been largely overtaken by focus on identifying the characteristics of children within the system, and in serious case reviews.  We raise our statistical concerns about this approach and provide additional information to note concerns about the Children’s Wellbeing and Schools Bill which simply extends and continues this approach. 

The fact that numerous Committee calls for evidence have asked the same questions over a protracted period is indicative that the current approach should receive critical attention.  We provide evidence and examples to support our conclusions that reconsideration of the system is needed if different outcomes are to be achieved. Crucially, the conflation of support and protection services correlates with its unsustainability and reducing efficiency in terms of preventing serious child abuse.  In a privatised and investor-led market, this approach will continue to drive individual profit in a never-ending cycle of growth-market conditions.

In summary, the current system is not only set up to become statistically less efficient over time in terms of good outcomes for the families it serves, but is increasingly attracting the private sector, including investors.  The combination of these factors is counterproductive to supporting families or protecting children. 

Is the current provision of children’s social care sufficient to meet demand?

Members of the Centre for Corpus Linguistic Approaches to Safeguarding Studies (CLASS Centre, hosted by Lancaster and Aston Universities) have been researching in this field for over two decades.  The CLASS Research Centre is undertaking a comprehensive programme of work in relation to child protection and safeguarding systems and processes, creating large, reuseable datasets including case-level data.  Members of the CLASS Centre have provided written and oral evidence to previous Committees in respect of mandatory reporting of suspected child abuse (written submission),[1] funding and provision of Local Authorities’ Children’s Services (written submission),[2] law reform of children’s social care (written submission),[3] local arrangements for the delivery of children’s social care services in light of changes in resources and demand (written submission and oral evidence).[4]  We also provided a ministerial briefing, published by the Economic and Social Research Council about systemic issues in child protection processes leading to unsustainable rises in cases.[5]

We mention these previous submissions as all have largely asked the same question and have consistently said that our research findings indicate the need to rethink child protection and safeguarding strategy, rather than focus on demand.  We urge close consideration of factors within the system to understand the reasons for the apparent increasing demand and reiterate our previous suggestions in this submission.  We hope it is of interest to the Committee that we are funded (by the Nuffield Foundation and the Economic and Social Research Council) to conduct research into the reasons for the rise in demand using methods that move beyond data linkage (which reveals what is happening, but not why it is happening).  The detail of our research is outside the scope of the written evidence submission, but we can provide further information to the Committee on request.

We agree that the current provision of children’s social care is not sufficient to meet the apparent demand for it.  At face value this suggests more investment is needed into the children’s social care budget, but this cannot happen unless children’s social care rises to the top of the political and social agenda.  This seems unlikely given other pressing issues, not least the crisis facing adult social care. The only other source of funding may be from charitable sources such as the NSPCC.

In the meantime, as an alternative to the inevitable budget shortfalls that will continue to plague any system with unchecked rising demand, we urge deeper examination into the question of the reasons for it, and to what extend demand reflects actual need for social care rather than system-generated need.  We have extensive research and data noted in our previous submissions which we can make available on request.

We question what demand really means and what is really driving it?  Unless these important questions are addressed, the provision of children’s social care will remain hostage to fortune to the demand factor.  Demand is currently used to describe a system where the demand derives from the need of children and families, whereas our research is largely showing system-led demand. Undoubtedly children and families have urgent needs, but close examination demonstrates that this need is increasingly being address through a conflated system responding to Sections 17 and 47 Children Act 1989 leading to increased strain at each stage of the system.  For local authorities the consequence if financially unsustainable.  For children and families, the consequence is devastating particularly where children are removed into state care because of unmet need and deprivation rather than abuse.

The publicly available statistics have consistently shown a rise in children being referred to Children’s Social Care, and this is alarming if there is an insufficient budget to pay for this rise.  This is not family-led or child-led demand, it simply reflects the natural consequence of the system’s drive towards increasing referrals.  It is this factor that is the focus of our research programme.  The data linkage studies investigating rises in demand[6] reveal the characteristics of children and families referred into children’s social care, but these studies do not show reasons for the referrals or whether there are elements of the complex child protection system that are driving these increases.

As noted above, in 2016, two authors of this submission (Devine and Parker) gave evidence to the All Party Parliamentary Group for Children, which asked “How has demand and funding for children’s social care services in England changed? What changes are expected in the future?”.  We can only repeat here much of the same evidence we previously gave (see text box below).

Three years after our 2016 Committee submission, in 2019, we gave written followed by oral evidence to the Commons Select Committee Funding & Provision of Local Authorities’ Children’s Services Inquiry.  Again, similar questions were asked.  We responded to these questions as follows:

What factors are causing the increase in demand for children’s social care?

This is a crucial question, and (as we note above) we urge close consideration of what is understood by demand. We suggest a pivot in the focus on understanding demand to an investigation of system-generated demand.

That is not to say that there is no demand from children and families.  We note that there is an increasing population without matched increase in resources. This problem has got worse over the years.  Additionally, the problem has been aggravated by the impact of COVID 19 which has not yet subsided, with the impact being both direct and indirect:

1. The COVID 19 public health crisis precipitated an increase in mental health issues and domestic abuse with a consequential effect on children’s social care. 
2. There is a general shortage of social workers and social worker turnover is high.
3. Children suffered from lack of education needs, particularly during lockdown.
4. COVID 19 caused many of the population to re-evaluate their personal values, including taking early retirement.  Unfortunately, the early retirement factor has also affected the social worker profession. 
5. Increased spending on goods and services The Bank of England highlighted post-COVID 19 increased consumer spending, resulting in supply shortages of goods and services, and being a major factor in the cost-of-living crisis.   The effect of the crisis for many still lingers for many, particularly the most impoverished section of society where most of the child protection crises arise.

Following from point 5. above, the cost-of-living crisis has increased pressure on families who may be dealing with hardship and debt whilst bringing up children. The closure of many Sure Start initiatives providing clubs and social activities for children has not helped.  The increase in families facing deprivation who are referred to children’s social care will not be helped by this situation.

Leading into our concerns about system-led demand, increased focus on safeguarding since the Children Act 2004 has contributed to a fear of missing something, particularly within the education sector. Therefore, there is a tendency to over-report ‘just in case’, leaving Children’s Social Care departments to sift, triage and manage increasing referrals.  We note that the Children’s Wellbeing and Schools Bill continues this ideological thinking, without close examination of the unintended adverse consequences of this approach.  We set out below our research findings which expose how this approach is counter-productive for children, families, and the sector.

Our research agenda moves beyond the data-linkage studies which show meta-data trends, including characteristics of children and families.  That has led to a perception that targeting children and families with those characteristics will ameliorate demand.  By 2016 the adverse consequences of this approach were noted by Sir James Munby, the former President of the Family Division.  He publicly said there was no plan to deal with this crisis.  We agreed and urged focus to move towards improving the multi-stage system which is calibrated towards ever-increasing demand.  It was Sir James’s comments that prompted our current research programme and our development of large databases of individual case-level information developed into machine-readable corpora for accurate and swift examination.

By 2019 the crisis in rising numbers of children and families referred into children’s social care was well known and prompted the Commons Select Committee on Funding & Provision of Local Authorities’ Children’s Services Inquiry.  Our evidence and views on where focus on the problems with demand have not changed since we gave evidence in 2019. 

Repeating what we said in 2019, we noted that (see text boxes below):

 What are the recent trends and causes of out-of-area placements?

We do not have specific research findings on this question but would suggest that out-of-area placements are an inevitable response to system overload and insufficient resources coupled with outsourcing provision of children’s residential care to private, profit-making providers.  Put simply, children need to be “placed” somewhere and the part of the system (the courts) who make Section 31 orders are not the same body tasked with where those children then live.

The current social care market, including private sector care homes and care homes run by local authorities.

The reasons behind the rising cost of children’s social care for local authorities, and ways to mitigate this

This is largely the same question as asked above, in the sense that there are increasing numbers of children and families referred to children’s social care which inevitably increases the cost. We have also noted above that the privatisation agenda inevitably increases cost via an undesirable profit motive for providers and for investors using the children’s social care market to increase individual and corporate wealth.

In terms of profit-taking from children’s social care, pension funds, fund managers, and hedge funds investing in the “market” of children’s social care has a politically, socially, and ethically undesirable impact on the cost.  Given our answers elsewhere in our submission, if the system itself is driving much of the “demand” then it can be argued that the real demand is from the end-profit makers from children’s social care.  If the investors and providers have a vested interest in demand, and the system is constructed to be weighted towards increased demand then the children and families are simply products of, and within the system.  Viewed through that lens, urgent examination and reform of the way in which child protection and safeguarding is set up as a system is needed, which is the key message from our research.

The Chartered Institute of Public Finance and Accountancy reports that the gross total expenditure of local authorities on children’s services has experienced a substantial increase of 34.3%. Specifically, the total expenditure for the fiscal year 2018/19 amounted to £9.9 billion, whereas for the fiscal year 2022/23, it rose to £13.3 billion. This increase is primarily attributed to the rise in residential placements, which is compounded by a poorly functioning market. For the fiscal year 2015/16, the total spent on residential placements was £1.1 billion; in 2022/23, it was £2.5 billion.[7]

Given this reality, as noted elsewhere in this submission, either:

1. The current system needs more money (including from the charitable sector) to survive,
2. Costs must be cut (for example by removing profit as a motive for service provision),
3. The system-created demand must be addressed.  The latter two are within the control of government but require engagement with the problems of the longstanding ideological approach to children’s social care in England and willingness to consider root and branch reform in a direction not currently acknowledged by government.

The work of the CLASS Centre has significant research to support the viability of option 3.  We can provide further information as needed.

What measures can be undertaken to improve early intervention

The concept of early intervention is embedded in the current system to the point where the term has become a heuristic for a collection of interventions that stop short of non-consensual state interference into private family life.  Rather than questioning whether early intervention should be reviewed as a means of reducing the number of children and families involved with children’s social care, questions revolve around how it can be improved.   However, the evidence-base on the short term and longitudinal effectiveness of early intervention is patchy at best.  What the data shows is that increasing early intervention correlates with increasing numbers of children progressing to the later stages of child protection processes.  Our research programme is building databases at individual case-file level to investigate what factors of the system encourage this undesirable result. 

As we set out above including in our reproduced Tables and Figures, we have presented our research findings to Committees before and have detailed background research which we can provide on request.  Our research shows that although some early intervention can help some families, there are many undesirable and unintended consequences that are not acknowledged.  There is no meaningful way for early intervention to be quantified nationally, or to be evaluated.  Research has consistently shown that families fear removal of their children and are reluctant to speak out or resist interventions.  This coercive type of consensual intervention is insufficiently acknowledged, and to improve the situation serious consideration needs to be given to the continuum approach treating early intervention and child protection on the same continuum.  This is embedded in policy but is contrary to what was drafted into the Children Act 1989 where Parts III and V of the Act separated Section 17 (children in need) and Section 47 (children at risk). 

To improve early intervention a greater consistency across England is needed in terms of provision, thresholds, and access as well as a better way to evaluate outcomes and negative consequences.

Returning to the question of funding for children’s social care, services for child protection and Looked After Children have been prioritised over more preventative services. Insufficient funding has resulted in a reduced capacity to provide other essential services within multi-agency partnerships, with Early Help being a notable example where funding in this area has fallen by approximately 49% since 2010. These funding cuts can be said to have a detrimental effect on the performance of the Early Help service.[8]

How combinations of kinship care, residential education, foster care and adoption could provide alternatives to residential care

This question has been considered for several decades.  The debate over whether the state should bear the financial cost of children, or whether private individuals should bear the financial cost has led to policies nudging towards keeping costs in the private sector.

This question mixes various alternatives to residential care, but it is helpful to consider them as two groups: those where financial costs vest in the private sector, and those which do not.  Historically, kinship care and adoption enabled children to be paid for within the private sector.  Foster care and residential education left the costs to be borne (at least in part) by the state. 

Over more recent years, this clear division has been blurred by financial assistance being provided within kinship care and adoption. 

We note that the fiscal considerations do not consider the needs of the child and their biological family (noting these interests may conflict).  When cases involving children come before a judge, usually in s.31 Children Act 1989 proceedings or their near equivalent, the fiscal cost is not the primary consideration.  However, once an order is made, the costs are relevant and must be met in some way.  We suggest a thorough review of these alternatives to residential care should be undertaken with a clear understanding of their cost in the context of the privatised market we refer to above.  Without this, decisions over where to “place” children will continue to be made in courts based on recommendations about their best interests, whereas there are other interests also served which is outside the contemplation of the judgments.  Until this issue is assessed from a fiscal and welfare perspective, a sensible answer cannot be arrived at.  It is time for transparent review and clarity of where these alternatives sit in a fiscal, welfare and legal context. 

We can comment further on this if needed.

Turning to the specific alternatives, all are already well established, although none are without reported issues.

Kinship care is an under-utilised alternative, and many families report is overlooked during Section 31 CA 1989 proceedings.  Funding for kinship care is under-resourced and is built on a historic tradition of families looking after their own without additional external funding. This type of kinship care historically operated as a form of informal adoption.

Residential education has been tried and funded with varying levels of success.  There is a lack of knowledge about the outcomes and experiences of children who received residential education, and this represents an important area for research funding to enable those voices to be heard.

Foster care is under pressure. There is a lack of suitable foster carers in England to look after children, particularly children who have additional needs, or are from different backgrounds. Foster carers are often inexperienced and lack professional training to effectively look after children with these additional needs and foster carers report feeling unprepared and unsupported. The cost of foster carers is a concern for Local Authorities which feeds into the overall problem of funding for children’s social care.

Adoption provides permanent severance from a child’s biological family. Recent state apologies to biological mothers whose children were removed is given insufficient consideration to whether current practices are desirable.  A wealth of research spanning decades is available to show poor outcomes for many adoptees.  That said, adoption has also provided permanency and positive outcomes for many.  As with many solutions to society’s wicked problems, some will benefit, and some will not.  It is outside the scope of this submission to rehearse debates around total severance of biological links, but it is important to note that as more children are removed from families because of increased deprivation, adoption could benefit from renewed scrutiny.

How children’s social care can impact a child’s educational or long-term outcomes and ways to improve outcomes for care leavers

children’s social care is intended to be a social good, improving the lives of children.  However, decades of research have shown an incredibly high level of distress and impaired outcomes for the children and families involved.  It has long been known that outcomes for children in state care are poor.  Despite this, residential care is now largely outsourced and, in many cases, unregulated. We include a couple of examples from other jurisdictions below, but we recognise that implementing them is unlikely in the current financial climate.

1. Provision of well-trained case workers that accompany a small number of children on their journey through the system and through education.
2. Mentors to provide information about qualifications, the job market and opportunities alongside the school system, targeted at children who do not have this input from parents.

The specific experiences of disabled children or children with additional needs within children’s social care, how they differ from their peers, and ways to improve their experiences.

We do have specific research findings on the experience of disabled children as a separate group but is an axiom that disabled children and children with additional needs should be supported according to their capacities and abilities. The ability of children’s social care to do this is inevitably constrained by the lack of resources.  This leaves disabled children and children with additional needs at increased risk of being drawn into child protection procedures if their needs are not met at an earlier stage.

The current system of safeguarding in children’s social care

The Children Act 1989 came into force in 1991 and is a consolidating Act that places a duty on local authorities to investigate cases where children may be at risk of ‘significant harm’ and to identify children who may be in need of services.  The Children Act 1989 pre-dates the Human Rights Act 1998, whereas the Children Act 2004 was implemented post.  However, despite the broad aim of the Human Rights Act 1998 to protect inter alia individual freedoms and privacy the more recent legislation is more intrusive than the position prior to its implementation.  S.47 Children Act 1989 is concerned with children suffering or at risk of suffering significant harm.  This section is intended to be coercive.  S.17 is concerned with children in need who, together with their families, need support services.  S.17 is not intended to be coercive. 

On the face of it the intention of the legislation is to create a clear separation between families who do not need coercive intervention, and families who do.  Despite this, policy has moved towards an integrated system whereby one, comprehensive assessment is undertaken to decide where on a continuum a family should be categorised.  The presumption is that unless family ‘problems’ are caught early they are likely to escalate into child abuse.  This policy direction has weakened the separation between coercive and non-coercive involvement into private family life and has conflated the use of assessment to provide supportive services with a fishing expedition into family life to decide whether there are grounds to apply to the court for a s.31 Care Order.  The policy interpretation of ss.17 and 47 has blurred the boundary between the coercive and non-coercive parts of the Children Act 1989 which were deliberately kept separate.  Part III inter alia concerned consensual services for children and their families whereas Part V inter alia concerned non-consensual investigations into suspected significant harm to children.  The type of harm that the 1989 Act envisaged and aimed to prevent was primarily serious physical harm.  Concern about fatal physical abuse of children had been raised by public inquiry findings into child deaths resulting from parental or state harm.   The threshold for interference is where ‘significant harm’ or the risk of it is ‘reasonably suspected’.  The law has expanded duties in the 2004 Act to extend beyond this threshold and also beyond the threshold in s.17 relating to ‘children in need’. 

A mix of intended and unintended results can therefore be identified from the complex strands that make up the nature and purpose of the legal framework.  The figures below represent the purpose of the child protection and safeguarding legislation, matched against the unintended consequences (see Figures 4 and 5 below). 

Figure 4 - The legislative intention of the Children Act 1989 ss.17 & 47 and the Children Act 2004 ss.11 & 12

Figure 5 – The unintended consequences enabled by the Children Act 1989 ss.17 & 47 & the Children Act 2004 ss.11 & 12

In attempting to prevent the most serious types of child abuse (restricted in s.47 to ‘significant harm’ as opposed to simply ‘harm’) the legislation has expanded to create a paternalistic system of mass surveillance and targeted interference which affects all families regardless of whether they are aware of it or consent to it.  Our research investigates the consequences of this strategy.  The legal issues listed below represent the key factors contributing to the loss of balance between state powers and private rights:

• The move from the concept of parental ‘ownership’ to the concept of parental responsibility and state duty: Parents are responsible for children and the state is responsible for policing parents to ensure they discharge that responsibility.  If, in the opinion of the local authority, they do not, the state has a duty to intervene.
• To discharge its duties the state must police parents.  Policing is undertaken by mass surveillance of all families.  The use of personal data and databases as ‘intelligence’ places all families under the surveillance umbrella, enabling local authorities to detect a failure to discharge parental responsibility.
• If failure is suspected, there is progression in the level of policing from mass surveillance to targeted interference via state assessment.
• In this circumstance parents are expected to comply with state requirements before coercive measures are scaled back.  Non-compliance may ultimately result in a local authority making a s.31 Care Order application to assume parental responsibility for the child, removing them from their family.
• Where a child dies as a consequence of a failure to intervene, a PI or more latterly a SCR will be held.  Their findings have been used as evidence the system should be strengthened with more stringent referrals and interventions.  This has led to policies driving towards higher levels of surveillance of all families, higher targeted referrals and extensive early interventions. 

In terms of performance, the increased number of referrals is resulting in an increased number of families who are subject to assessment, but no directly proportionate increase in the amount of detected child abuse.  To the contrary, the data shows the opposite outcome (see Figure 3 above).  Taken together, the system-generated outcomes are of concern and are the focus of our research programme to enable detailed examination and evaluation of the large volumes of case-level data.

How effectively Ofsted works as a regulator and inspector for children’s social care.

The points we have raised elsewhere in this submission refer to system-led demand by which we mean that the systems and processes set up to implement the provisions of Sections 17 and 47 Children Act 1989, and associated legislation are creating its own demand that falls outside child and family-led demand.  The precise reasons for this, and data to support this can be provided on request.  Consequently, what Ofsted regulates and inspects is limited to the systems and processes that are expected under the current approach. 

As a result, what Ofsted measure is limited and does not capture experience or longitudinal outcomes.  To the contrary, the aspects Ofsted measure do not, we suggest, have meaningful impact on actual outcomes.

The government’s children’s social care implementation strategy, Stable Homes, Built on Love, released in February 2023, including:

How effective the strategy has been so far,

The implementation strategy follows the Conservative government-led “once in a generation” inquiry into children’s social care led by Josh McAllister.[9]  To understand the response, the core inquiry and its methodology should be revisited.  Although there is interesting information and extensive surveys were carried out, the inquiry did not conduct an review of available research findings, nor did it pro-actively seek out relevant information. It cannot therefore be held out as a research-led inquiry in a methodologically rigorous sense. 

The implementation strategy will therefore, by definition, be limited by the remit of the inquiry itself. It therefore does not take account of systemic issues but takes an uncritical view of the current system.  For the reasons we have set out throughout this response, this does not take account of the fiscal problems caused by the current system, nor does it take account of the systemic problems that our (and other) research have shown.

Its effectiveness is therefore limited to the incomplete findings of the Inquiry itself.

How effective it is projected to be in the long-term.

In the long term, the strategy provides no meaningful change to the system-led demand problems as it simply did not consider them.  In the long term therefore, our prediction is that the strategy will fail to stem the incremental rises in children and families referred into the system, or the rises in children progressing through the system. 

Two authors of this submission warned of the upward trend continuing from 2014 onwards and have consistently reported that until there is engagement with the root and branch reconsideration of how child protection and safeguarding systems are set up and administered in England, the problem will continue.  By 2016 the problem was receiving national attention.  By the time of the McAllister Review system-led problems should have been at the top of the agenda and a concerted effort made to search out relevant data and research using a robust methodology.  As this did not happen, based on our previous and current data predictions, we consider that unfortunately the resultant strategy is unlikely to be effective.

Additional materials / comment (free format)

Section 24 of the Children’s Wellbeing and Schools Bill and the European Convention on Children’s Rights

In this section we set out concerns specifically about section 24 of the Children’s Wellbeing and Schools Bill and address the possibility that part of the provision may be incompatible with the European Convention on Human Rights. 

Introduction

The concept of Parental Responsibility was introduced by the Children Act 1989 (CA89).   It replaced a previous concept of parental rights in relation to a child.  Section 3(1) CA89 defines parental responsibility as:

“…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”

This includes the power and duty to determine what education the child should have.   Although not specifically defined as part of the CA89, the right to determine a child’s education is impliedly recognised in other legislation and stated explicitly by the Government online.  There are limited exceptions to this right, and the Children’s Wellbeing in Schools Bill becomes law, two new exceptions would have been created as well as a major change to Child Protection policy in England.

To explain how the Bill will create new exceptions it is necessary to refer to a foundational concept in the CA89, which provides ways in which a person can gain parental responsibility.   The law relating to children generally, including adoption, provides ways that parental responsibility could be lost by a living person.   The constant here is that a parent or person with parental responsibility cannot lose parental responsibility of a child without a court order.  

With only one known exception, only a court order can curtail the exercise of existing parental responsibility when:

1. A Local Authority is granted a Care Order so that the parent loses care and control of the child. 
2. Through a Prohibited Steps Order. 
3. Sometimes, a Specific Issue Order is required to determine a question about how Parental Responsibility should operate. 

Whichever route is taken to stop a parent losing a right to exercise a part of parental responsibility, the journey ends with a with a court order.   If the Children’s Wellbeing in Schools Bill becomes law, two new exceptions would have been created. 

The Bill introduces potential breaches of the ECHR.  Exercising Parental responsibility is a part of family life and has become closely associated with Article 8 of the European Convention on Human Rights (ECHR).  Article 8 ECHR states:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”

Exercising parental responsibility is civil obligation.  Any curtailment of it is an “interference” by the State for the purpose of paragraph 2 of Article 8.  One can also argue that because the Court is consistently the gateway to curtailment of parental responsibility, Article 6 ECHR would be engaged in any other route which attempts to curtail it.  The first part of Article 6 states: 

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

In relation to Article 8, there can be no interference by a public authority, save as in relation to the exceptions stated.  One of them is, obviously, the protection of children.  A court, determining whether a public authority can interfere with any Human right set out in the ECHR must decide whether it passes the proportionality test. 

As already stated, there are routes to curtailing parental responsibility through the courts and it will be argued that for this reason, any legislation that hands part of it directly to the State is not a proportionate response.  In the following explanation, we use the term ‘the State’ and ‘the Local Authority’ interchangeably, but for the purposes of the discussion, they are the same entity.   

Section 24 – Local Authority consent for withdrawal of children from school.    

Under subsection (2) of the proposed new section 434A of the Education Act 1996, a “relevant child” is defined according to three conditions.  In the first two, the child is of compulsory school age and is a pupil at a school in England.   The third conditions is that either condition A or B defined under subsection (3) are met.  

Under subsection (1) of the proposed new section 434A:

"(1) A parent of a relevant child must obtain the consent of the relevant local authority to withdraw the child from school if the parent intends —

(a) that the child should cease to attend the school at which the child is a registered pupil, and

(b) to withdraw the child from school for the purpose of causing the child to receive education otherwise than at school."

Thus, the parent of a relevant child must obtain the consent of a local authority to withdraw the child from school for the stated purpose.   The words “for the purpose of causing the child to receive education otherwise than at school” are directed to home schooling, but they could refer to anywhere else that the child has a private education which is not at a school.   Consent can be refused by the relevant authority on either of the two grounds stated in the proposed section 434A(6)(b). 

The first of those grounds is that it would be in the child’s best interests to receive education by regular attendance at a school.  The second is that no suitable arrangements have been made for the education of the child otherwise than at a school.  

Condition A is a re-statement of existing law.   The existing law requires a parent to obtain consent from a local authority to remove a child from a special need’s institution where the arrangement for schooling was made by the Local Authority following the creation of an education, health and care (ECH) plan.  It also appears that a local authority cannot arrange for a child to attend a special needs educational institution without an ECH plan.  

If there were a Human Rights argument, the proximity of condition A to condition B in section 434A might be used to highlight the fact that curtailing the exercise of parental responsibility without a court order is not the status quo in all situations.  Condition A refers to an exceptional area of law where a Local Education authority, in carrying out an EHC assessment, has invested expertise and resources in relation to a child with special needs before arranging special needs education.  That contrasts sharply with a situation where a Local Authority is required to assess a child’s overall best interests from a scratch position.   We do not discuss Condition A any further, except to say that it would not be appropriate to compare condition A with condition B in terms of justifying curtailing parental responsibility without a court order.

For the following reasons and despite the right of appeal under section 434A (10), the need for a parent to be granted permission in relation the Condition B scenario potentially falls foul of the European Convention on Human Rights Articles 6 and 8.  

Home Education

There will be plenty of debate about the advantages and disadvantages of home schooling.  Handy (2023) discusses eloquently many of the advantages and disadvantages of home education.  There will be many situations where a child is more likely to thrive in education at home compared to a school.   The following are examples:

1. One common problem is protection from school bullying. 
2. Another recurring problem is that the classroom pace is wrong for the child – too slow or too fast.  
3. Another is that the child suffers from severe low self-esteem and requires isolation from his/her peers in order to build confidence.  
4. Home education is often used where a parent considers that the standard of education in locally available schools is inadequate.  

Challenges for parents administering home education include ensuring that child has sufficient interaction with the child’s peers and missing out on group activities, such as sport.

Research on academic success of home educated children is positive.   For example, Ray (2013) states that home educated children [in the United States] ‘score 15 to 25 percentile points above public-school students on standardized academic achievement.  No concrete case has been made that home education which meets academic standards is not generally better for the child’s overall interests. 

Condition B (new sub-section 434A(4)

Condition B refers to two scenarios.   The section 434A(4) reads as follows:

Condition B is that a local authority in England is—

(a)  Conducting enquiries under section 47 of the Children Act 1989 (duty to investigate) in respect of the child, or

(b) Taking action under section 47(8) of that Act to safeguard or promote the child's welfare, in a case where the enquiries mentioned in paragraph (a) have led the local authority to conclude that the child is suffering, or is likely to suffer, significant harm (within the meaning of section 31(9) and (10) of that Act).

We draw attention to the word “is” in front of subparagraphs (a) and (b).  Certainly, for the first scenario, that word indicates that the requirement to obtain permission is temporary.   In the second scenario “taking” is much more likely to be ongoing.

In the first scenario, there is an investigation underway pursuant to section 47 of the Children Act 1989 and a parent wishes to remove a child from a school.  It is worth bearing in mind that 47 investigations often conclude with the Local Authority deciding that grounds for bringing proceedings under Part IV of the Children Act had not been met. 

In the second scenario, the local authority has already investigated under section 47 and as a result has taken a view that the threshold criteria are met, and the parent wishes to educate the child away from school.   By implication, instead of taking a care order, the Local Authority would have decided to use Part III services under the Children Act 1989 instead of applying for a care order. 

If the Bill were to be enacted as drawn, then should the first scenario arise, it would burden state professionals with a conflict of interest-based decision.   The Local Authority would be forced to form a prejudicial view of the child’s best interests (under the proposed section 434A(6)) before it completed a section 47 Children Act investigation.   On the other hand, it could be argued that harming the child’s best interests by not allowing withdrawal from the school would be minimal because the “relevant child” status only applies whilst the Section 47 investigation is ongoing.  Government guidance provides that a Section 47 investigation should be completed within 45 days.  However, the 45-day period is not a legislative rule, but standard practice and can be extended.  

There is then the problem of the Summer Holidays.  A referral could come in just before the end of the Summer Term.  How is the child going to be protected if keeping him/her at school would genuinely lower the risk of serious harm?   This brings the focus back to the inadequacy of Section 47 investigations. 

There is an alternative reason for refusing consent which is that no suitable arrangements have been made for home schooling (section 434(6)(b)(ii)).   As the legislation is currently drafted, the parent of a child who is not a relevant child cannot be refused permission on either ground under section 434(6)(b)(ii).  This is an arbitrary discrimination which could also be a vehicle for mischief in litigation.  What if a parent were able to demonstrate that his Home Education Plan for the child was suitable?  That would then put an onus on a Local Authority to demonstrate that the child’s best interests are best served by waiting until the end of their section 47 investigation.  In fact, it would compound the Local Authority’s conflict of interest because it would also have to be the judge or the child’s best interests in relation to education in what is a temporary period. 

There is a solution to the Local Authority’s dilemma without the need for legislation.   In this scenario, the child still lives at home.  If evidence of significant harm emerged, it could very quickly apply for an Emergency Protection Order (which gives the Local Authority temporary parental responsibility).

The second category B scenario is almost certain to be very rare.   A decision would have been taken by the local authority to provide support services under Part III of the Children Act 1989 thus obviating the need for a care order or supervision order whilst a parent seeks to have the child educated at home.   In this scenario, the Local Authority would consider it unnecessary to seek parental responsibility through a care order.   One might also expect that the local authority has taken its decision, having canvassed the Parent’s view on home schooling. 

Let us say that the Bill did not become law and the Local Authority is not taking out care proceedings and instead settles for a Part III care services plan.   Let us also say that after the situation has settled and a parent later decides that home education is the best way forward for the child or children.   In that scenario, if the local authority genuinely felt that the risk to the child had increased, it could firstly try to negotiate with the parent over schooling.  If that failed, and it did not want a care order, it could apply for an application under section 8 of the Children Act 1989 for a Prohibited Steps Order and/or a Specific Issue Order.   Thus, in either scenario, without the legislation, there is a way forward for the Local Authority to adequately protect the child.  Consistency with the CA89 should not be ignored and the facility to use the courts tips the scales on the issue of proportionality (relating to ECHR) against the proposed legislation. 

In conclusion we consider that the proposed measures under Section 24 of the Children’s Wellbeing and Schools Bill are a curtailment of parental responsibility as well as further drift towards system-led demand that (as the previous two decades of changes to increase system demand have shown) will do nothing to reduce the prevalence of child abuse, or further tragedies.

January 2025