Special edition, April 2021

One of my earliest experiences of what we now call ‘participation’ was around 30 years ago, when I accompanied members of a children in care group to a meeting with a director of social services. They made two practical requests – that signs outside children’s homes be taken away, and that mini-buses no longer identify children travelling within them as connected to the council.

On hearing how embarrassed children felt having wooden notices conspicuously standing in their front gardens, the director agreed straightaway to have them uprooted and carried away from every children’s home in the county. He also listened well to children describing how they felt being dropped off at school in a mini-bus advertising social services, and he committed to investigate having council graphics and signwriting removed from vehicles. These were the days of oversized children’s homes; that a large family car could be used instead was beyond our imaginations.

I was reminded of these two requests for what amounted to humane treatment when reading the reports from the Scottish Care Review last year, with one of its many calls being that members of staff refrain from wearing lanyards and badges. And, again, at the online launch of Sheffield Children in Care Council’s outstanding anthology of writing. 

Called ‘The Can in Can’t’, this brilliant collection of poems and prose powerfully signposts all that is wonderful and all that is wrong about our so-called care system. The last line of the following two verses from a group piece called ‘Some People’ are among the many words which go straight to my heart:

Some people don’t know what it’s like to have their life written
into a book, in a certain language, because it’s all so much to take in.
To get muddled from workers, and stories and new information.
To know inconsistency and what it’s like to start again and again.

Or what it’s like to have a teacher announce… ‘Your
foster carer’s outside’ in front of the class, or to listen to adults
talk about you like you’re not there, or have a worker visit
when you’re having tea, keeping their shoes on like it’s an office.

It’s precisely these kinds of insights, generously shared, which should be the beating pulse of England’s care review. Children and adults who have direct experience of the care system know, really know, the fine detail of what works and what doesn’t – for them, and often for the people they love and care about – and I have yet to see any stronger driver of change than the stories of real human beings.

But more than six weeks into England’s care review, we are not in a good place. After the publication of the Chair Josh MacAlister’s contract with government, we now know the scope is much wider than the children’s social care system and children’s experiences of the youth justice system (both included in the terms of reference published on the review’s website) and includes the impact on children of the family court and legal process.

Let’s recall that the Conservative Party 2019 election manifesto promised to review the care system; this is what care experienced campaigners had been pushing for, having been inspired by the Scottish Care Review.

Despite the very wide terrain, the ‘what needs changing’ evidence-gathering stage is proceeding with haste. Josh MacAlister doesn’t deny the speed at which he is working. 

In his early plans document published on 1 March, he explained in a section titled ‘Achieving whole system change’: “One question I have been frequently asked is how the review can look at such a broad scope in enough detail to achieve real deliverable change. Part of this will be about me and everyone who supports me moving at pace and building on the significant amount of work that already exists”. He doesn’t explain why he is “moving at pace”; neither does he answer how the review has started with the conclusion that whole system change is required.

A call for evidence, aimed principally at “the research community and those with robust evidence”, ran throughout March – just one month. The review’s website states that Josh MacAlister will produce his case for change in the summer, though the Yorkshire Post quotes him as saying this will be published at the end of May. Whichever is right, this time period is indecently short, particularly for a chair who has no professional experience of the matters he is investigating.

We are told, “The review will then begin to build recommendations for how the system can be improved, still feeding in a wide range of views, culminating in the review’s final recommendations and report”. The equivalent on the micro level would be a social worker spending two or three minutes asking a child about their life, then holding a two-hour meeting where the child can contribute if they want, followed by months and years aiming to fix the child’s life with analysis that was flawed from the outset. 

We should learn the lessons of the review conducted by the Commission on Race and Ethnic Disparities, whose process was similarly compressed. Now that Commissioners have gone public on their lack of involvement, and the whistle has been blown on Number 10’s role in writing “much” of the document, we can see why that particular review marched at speed. It is not conspiratorial to wonder whether the same Number 10 personnel are holding the reins of the care review.

At least those conducting the race review were made public from the start. Nine Commissioners and a further two members were announced alongside the chair of that review when its work began. With the government’s care review, there was no such transparency at the start about who was to be involved – this began to unfold once MacAlister’s contract was published on an online tender service. Then, several weeks in, the names and expertise of those advising the review were announced, split into two groups with one focusing on evidence and the other on designing recommendations. 

Consistent with MacAlister’s contract, the government-established What Works Centre for Children’s Social Care will assist the review by “producing and commissioning evidence summaries, rapid reviews and new analysis”. The government’s Chief Social Worker for Children and Families, and the former director of children’s social care policy at the Department for Education, are both members of the Design Group.

The role of the Experts by Experience Board, also convened in haste (1,011 applications assessed within nine days), appears to be focused on helping the review hear the views and experiences of those with direct knowledge of the various systems. This is a vitally important task, but will this Board also get to influence the review’s findings and recommendations? Just two members of the Experts by Experience Board sit on each of the Evidence and Design Groups.

Many of us have had mixed feelings about this review, desperately wanting it to be independent of government and a rocket-booster for affirming all that is right and righting all that is wrong in the care system, while at the same time anxious that the outcomes may be already broadly written. 

The revelation that MacAlister has signed a contract agreeing that not a single penny extra will be given to children and families because of this ‘bold’ review – any recommendations he makes which have price-tags must be partnered with proposals for cutting costs elsewhere – puts the pendulum on the side of fear, not hope.

This review follows a decade of successive attempts by government to deregulate children’s social care, making it easier for services to be moved from local authorities and to achieve the academisation of social work.

First, came the Cabinet Office’s red tape challenge, which ran from 2011 to 2014 and invited members of the public and others to recommend removal of regulations in 29 policy areas, including children’s services. In April 2011, the then Prime Minister David Cameron wrote to all government ministers telling them of the ‘one in, one out’ rule whereby new regulations could only be introduced once others had been removed. The message was loud and clear:

Be in no doubt: all those unnecessary rules that place ridiculous burdens on our businesses and on society – they must go, once and for all.

None of the secondary legislation protecting children in care was taken away through the Red Tape Challenge; civil servants appearing before the so-called ‘Star Chamber’ were able to defend those that still applied and only a few regulations no longer in use were deleted (for those wanting to learn about any of the other 28 policy areas, Grenfell Tower is the most distressing case study). 

However, conceptually putting the care and protection of children into a deregulation drive alongside health and safety, employment law, manufacturing, equalities legislation and housing and construction has cast a very long shadow. We have had a decade of children’s social care policy makers nudging and messaging that legal rules are for fools, and many have come to believe it.

Then in 2014 came a proposal to change the law to allow local authorities to outsource nearly all of their children’s social care functions. This was fiercely rejected by social work academics, children’s charities and others. The final regulations didn’t permit private companies to take on child protection and other functions though the Explanatory Memorandum produced by government advised that they “will not prevent an otherwise profit-making company from setting up a separate non-profit making subsidiary to enable them to undertake such functions”.

The exemption clauses arrived next in 2016. These were provisions in the Children and Social Work Bill allowing local authorities in England to opt out of any number of their children’s social care duties for a period of up to six years. The plan was for local experimentation to be pilots for national deregulation. Ministers were to be given the power to remove duties from councils who were failing to meet their statutory obligations. 

There had been no Green or White Paper setting out these plans. Very few individuals or organisations supported the move, though the current Chief Social Worker for Children and Families was a notable cheerleader. In the end, and after Professor Eileen Munro publicly withdrew her support, the then Education Secretary Justine Greening added her name to Labour’s amendment to the Bill deleting all of the clauses.

Then came the 2018 report from a foster care review undertaken by Sir Martin Narey and Mark Owers, whose recommendations repeated two of the controversial proposals for which government had intended to use the exemption clauses – the abolition of independent reviewing officers and children in long-term foster care to no longer have their own social worker. 

The report also urged an end to the presumption that brothers and sisters in care would live together wherever possible. Those of us who had defended children’s rights against the exemption clauses reunited to try and persuade the Department for Education not to implement these proposals, and, luckily, our concerns were heard.

A ‘myth busting’ guide followed several months later. Produced by the Department for Education to advise councils on the content of statutory guidance relating to children in care, care leavers and children in contact with the criminal justice system, this again covered similar territory to the exemption clauses. It contained many inaccuracies about the statutory framework and was withdrawn in March 2019 after my charity started judicial review proceedings.

The most recent attempt at radical deregulation was using secondary legislation, The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445). Introduced one month after the first Covid-19 lockdown, in April 2020, Statutory Instrument 445 overnight deleted and diluted 65 safeguards for children in care. This shocking move followed earlier themes, in removing duties around reviews, social worker visits and short breaks for disabled children.

No time was given for parliamentary debate or public consultation, though a select number of local authorities and other organisations were asked by the Chief Social Worker for Children and Families and other civil servants to provide their views in confidence. Hundreds of individuals, and some supportive organisations, very kindly donated to a crowdfunding appeal so my charity could once again take legal action. 

In November last year, the Court of Appeal ruled that the Education Secretary had acted unlawfully in making “substantial and wide-ranging” changes to children’s legal protections without consulting the Children’s Commissioner for England or any other body concerned with children’s rights.

While care experienced people, social workers, lawyers, trade unionists and others have been able to systematically defend individual safeguards, there is a wider point concerning the importance of a rule-based system where decisions and actions can be questioned, challenged, and changed in the interests of children. This is the strength of having rights and entitlements written into law; individuals and communities no longer (at least on paper – implementation is another story) need rely upon persuasion and charity. 

Rights convey dignity and they redistribute power. They hold decision-makers to account. A child wanting to see her little brother, whom she took care of when they lived together at home; a care leaver at university worried about where he will stay in the holidays; a child who wants to see more of her social worker – these all presently have rights in law that make their positions stronger, and their voices louder. I have seen countless times the marked difference that rights, and the absence of them, make for children and young people getting what they need. As the spectacle of the Red Tape Challenge showed us, when social protections were put up for auction, one politician’s burden can be a whole community’s lifeline.

‘The Can in Can’t’ anthology of writing can be purchased (£7) from Sheffield’s Children in Care Council by contacting clare.holdsworth@sheffield.gov.uk

Carolyne Willow is Founder Director of Article 39 children’s rights charity and a social worker; carolyne.willow@article39.org.uk