Welcome to another week.
An Ofsted inspection of Bradford council’s child protection services, has raised an important question about the way in which the justice system deals with local authorities who expose children in their care to harm.
Bradford council received its inadequate rating after incorrectly subjecting children who were not in danger to invasive investigations, and failing to identify vulnerable children in its borough genuinely in need of assistance.
Failing child protection services is unfortunately not an uncommon occurrence in Britain, however something the inspector says in his report makes for important reading. In his summary, Neil Penswick comes to the following conclusion:
“…changes of social workers and managers, as well as resultant poor practice, [are] leaving children at risk of significant harm.”
The concept of significant harm is outlined in the Children Act 1989. The legal basis for the idea of harm in this context is set out in S.31 of the Act which tells us:
That the child must be suffering, or likely to suffer, significant harm.
And that the harm or likelihood of harm must be attributable to one of the following:
a) The care given to the child, or likely to be given if the order were not made, not being what it would be reasonable to expect a parent to give; or
b) The child being beyond parental control.
The Children Act 1989 defines ‘harm’ as “ill-treatment or the impairment of health or development”. ‘Development’ means physical, intellectual, emotional, social or behavioural development; ‘health’ means physical or mental health; and ‘ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical. As a result of the Adoption and Children Act 2002, the definition of harm also includes “impairment suffered by hearing or seeing the ill-treatment of another”.
The provisions under S.31 though, only specifically refer to situations in which a care order, or a supervision order can be issued – giving local authorities the power to take children from their current carers and place them in state or foster care. So what happens when a local authority endangers a child?
While there are avenues for raising legal complaints about councils placing children at risk of harm, in civil and criminal courts and with the Local Government and Social Care Ombudsman, (this post from the Transparency Project offers a summary of the options), the reality is that mounting such challenges are extremely difficult, and chances of success – even with an experienced legal team – are small.
The influence of Government in these kinds of cases has also become a problem. In 2017, a groundbreaking judgment confirmed that victims who had been abused as children in foster homes vetted by councils, could sue those councils for harm they had suffered at the hands of their foster carers. The case sent shockwaves through the survivor community, and the feeling that a floodgate had been opened soon started to spread through the child protection sector, and up to government.
At the end of 2017, it became apparent that multiple survivors were mounting cases against councils for abuse they had suffered as children while in their care. Then, in January 2018, the Court of Appeal, in what looked like a bid to stem a flood of lawsuits, ruled against child abuse survivors who had, or were preparing to file lawsuits against councils who knew at the time about the abuse they were experiencing, but did nothing to stop it. It’s not clear whether the Court of Appeal made its decision to narrow these claims because it grew worried about the potential payouts involved, or whether they felt the claims had no merit, but it’s hard to imagine that any rational judge would set aside such important claims in the face of what this site argued at the time was a clear duty of care owed by these councils.
In response to the judgment, Researching Reform published a piece offering survivors a way around the ruling. We argued that a mandatory duty to report child abuse would help to crystallise the duty of care councils owed to children, and make government more accountable for its actions.
Three months after we wrote the piece, the government blocked the idea of mandatory reporting, in its review of the policy. It was a predictable move, and one that wasn’t based on any of the current research or findings on mandatory reporting, which to date have been overwhelmingly positive. The reasons given at the time for setting aside this policy were questionable, and left campaigners with the feeling that the government was once again placing its purse before the protection of the children in its care.
The current set up means that remedies do exist to address government failures in child protection, but a vested interest in keeping money coming in continues to affect the way state officials treat vulnerable children.
So what happens in today’s world when a council endangers a child’s life? The answer, precious little.