UPDATE, March 2017: The Education Secretary Justine Greening MP has dropped plans to allow council social services to opt out of a number of legal obligations to vulnerable children. This is an important win for campaigners and is a reassuring move by a Government which appeared to be supporting what could amount to reduced accountability for public services. Read Carolyne Willow's response to this here.

Original article below: 23 November 2016

The Children and Social Work Bill, which is currently making its way through Parliament, presents a real risk to children’s rights by changing the legal basis of children’s social care.

The exemption clauses

Carolyne Willow, director of Article 39 and one of the coordinators of Together for Children, shared her concerns about the bill and gave an update on recent developments at the latest meeting of BIHR’s Human Rights Alliance.

In the Children and Social Work Bill, the government has put forward a number of “innovation clauses” – otherwise known as the “exemption clauses”. Through exemptions or changes to legal duties for local authorities (either individually or in groups), these clauses would mean that children had different legal protections depending on where they lived. In effect, the proposals mean that social care laws would no longer apply to all children. All social care services that children receive from local authorities could be affected, including child protection, the care system, and services for children with disabilities. 

Peers voted to remove the controversial clause 29 when the Bill was debated in the House of Lords earlier this month. This clause was central to the “innovation” or “exemption” clauses, and would have meant that local authorities could have been excused from a legal duty in relation to children’s social care (or the legal duty modified).  

The bill will now continue to the House of Commons. In this next stage, it is hoped that the government will not reintroduce their controversial proposals, considering the defeat in the House of Lords and the strong civil society response – but this isn’t guaranteed.

The campaign to protect children’s rights in social care

Together for Children, a network of individuals and organisations including BIHR, has been working to defend the rights of children and young people in response to the Children and Social Work Bill and the “exemption clauses”. The defeat of clause 29 in the House of Lords has been welcomed, but as the bill moves onto the House of Commons, Together for Children will continue to advocate for the rights of children with regards to social care.

Why this matters for BIHR

At BIHR, we joined Together for Children to defend the rights of children and protect the legal basis of children’s social care. The Human Rights Act places a legal duty on all public authorities to respect, protect and fulfil people’s human rights (find out more here). This covers all functions of the authorities, including in relation to children. Social care legislation, which should be compatible with human rights, essentially sets out the detail of the powers and functions of authorities to respect and protect children’s rights.

BIHR is concerned there is a very real risk that the “innovation” or “exemption” clauses in the Bill would in reality lead to the opting out of important protections for children. In any case, if the Bill is intended to support authorities to develop innovative new approaches, there are many ways this can be achieved without the clause. Looking across to the health sector, BIHR has been working with a Child and Adolescent Mental Health Unit on changing its approach to managing risk. Using the Human Rights Act in practice we’ve supported staff to look at innovative new ways of respecting children’s family life rights via phones and internet access, whilst keeping them safe from potential harm (such as bullying or grooming). Our experience shows that innovative children’s services don’t require the removal of legal frameworks, but rather harness the power of the law to drive forward better policy and practice.

The Human Rights Alliance

BIHR’s Human Rights Alliance is a network of over 150 organisations across the UK committed to protecting human rights and the Human Rights Act. Coordinated by BIHR, we hold regular meetings, share information and updates on key topics of interest, like the Children and Social Work Bill.  

One of the strengths of the Alliance is the breadth and depth of organisations involved. You can find out more about Human Rights Alliance online, including how to join.

Image credit: Librarianishish, Flickr (creative commons)