The Children and Social Work Bill (the Bill) is progressing through Parliament and is heralded as both revolutionary and controversial. The Bill seeks to change processes for looked-after children and amend the regulatory framework for social workers. Megan Clarkson Bowly discusses the contentious ‘innovation’ clause and what this means for children’s services.

The innovation clause

The innovation clause gives the secretary of state the power to allow a local authority to opt out of children’s social care legislation and develop new ‘innovative’ ways of working.

In November 2016 the House of Lords voted to remove the innovation clause from the Bill, considering it to be ‘fundamentally flawed’ with a lack of evidence to justify such measures. However, the Government has reinstated the clause in an ‘altered and improved form’.

To opt out, local authorities must first consult appropriate safeguarding partners and relevant agencies. The authority must then apply to the secretary of state to make regulations under what is currently clause 32 of the Bill. The secretary of state must in turn consult with an expert panel to include the children’s commissioner and chief inspector of education who will consider the capability of the local authority, the likely impact of the regulations and the adequacy of measures to monitor that impact. Any exemptions granted will last for three years with an option to extend for a further three years.

Why?

Opponents of the Bill from within the social work profession have argued that the clause will undermine fundamental child care legislation in place to protect the rights of vulnerable children.

Carolyn Willow, director of Article 39, a group which fights to protect children’s rights, says that ‘Free rein to remove statutory duties towards vulnerable children is being marketed as innovation - there is nothing new or creative about taking away social care rights from the children in our country who most need them.’ She argues that commercial thinking drives the change; ‘Legislation will vary between areas. If this is intended to force competition, ministers must realise that children who need protection and care are in no position to choose where this comes from.’

Professor Eileen Munro, academic and author of the Government-commissioned 2011 review on child protection, initially supported the innovation clause but has now withdrawn her support on the basis that it would pose a ‘serious danger’ if the wide-ranging exemption powers were contained in statute. Instead, she has called for the Government to pursue ‘less ambitious but still useful’ reform by amending specific laws that block innovation.

Undoubtedly, the innovation clause will change the way children’s social care negligence claims are dealt with as regulation will vary between councils. The initial challenge in any claim will be to establish what regulation the local authority did or did not abide by at the time of the claim. Local authorities will have to ensure they keep very clear records of their regulatory framework, along with evidence that it was followed.

Even if it is established that a local authority has opted out of certain regulation, the law might prove difficult to apply. It will be very difficult to apply the objective standard of the reasonable person to a situation when professionals have been encouraged to use their subjective judgement.

What next?

The next review of the Bill will be the report stage. It will be interesting to see how the House of Lords responds to the reinsertion of the innovation clause, given the initial criticism. Hill Dickinson’s abuse and social care team will watch the Bill’s journey through Parliament and its ultimate implementation with interest and will keep clients closely informed.