Promoting the child’s best interests in social care law
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Louise Heath
Although a signatory to the UN Convention on the Rights of the Child, the situation for poor children in the UK, to our shame, falls far below the standards set out there despite our relative wealth. Stephen Knafler QC hopes that his latest book will provide practical, much-needed help to lawyers and others in using the law to secure those rights.
Lady Hale has accomplished so much, but to my mind her leading judgment in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, delivered on 1 February 2011, is one of her greatest achievements. In that judgment she truly brought home, to British lawyers, the importance of the best interests of the child. The huge effect of that judgment results in part from Lady Hale’s translation of key concepts from the UN Convention on the Rights of the Child (UNCRC) into national law, but also from its tone; its sympathetic attitude towards children who become affected by state action and its recognition of children as important beings, possessed of legal rights that require separate consideration. Lady Hale was not the first, and will not be the last, great lawyer to pronounce upon the importance of children’s welfare, but ZH (Tanzania) profoundly changed the whole tenor of the approach in public law cases involving children, in ways that will likely reverberate for many years to come.
Having completed nearly six years’ work on Children’s Social Care Law , ZH (Tanzania) is, therefore, the one case that I would personally pick as being the most vital, transformative and, above all, challenging case in the book; challenging because the situation of children in the UK – and, specifically, children from poor backgrounds – falls well below the standards referred to in ZH (Tanzania), found in the UNCRC. It seems to me that there are three reasons for that.
The first is that, despite having signed and ratified the UNCRC, the UK has still not incorporated it into national law. Our national law ought to have the duty at UNCRC article 3 as its central, unifying principle: that the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. That central legal duty still does not fully exist in UK law because UK law does not impose that duty on private social welfare institutions at all and it does not impose that duty on public bodies etc except where children’s rights under article 8 of the European Convention on Human Rights (ECHR) are engaged. And UNCRC article 3 is as good as it gets; the remaining provisions of the UNCRC have not been given effect to in UK law even through the portal of ECHR article 8.
How social workers, families and children, charities – lawyers even – navigate through the morass of children’s social care law is beyond me.
The second is that, in England at least, the law relating to children’s social care has not been modernised and codified in the way that the law relating to adult social care has been. There are at least nine Acts of Parliament, dozens of statutory instruments and mountains of guidance, that have a bearing on children’s social care law. It’s too much and it’s too complicated. How social workers, families and children, charities – lawyers even – navigate through the morass is beyond me. The best interests of the child require there to be an accessible, understandable and practical body of law, properly organised around a central core of duties owed towards children, reflective of the UK’s obligations under the UNCRC.
The third is money. The law relating to children is paved with the best of intentions but without sufficient money leads nowhere good. Child poverty is at its highest level since 2010. 1See also: Larry Elliott, ‘Child poverty in Britain set to soar to new record, says thinktank,’ Guardian, 2 November 2017. The lack of adequate clinical, residential and other support services for children with severe mental health difficulties prompted the president of the Family Division himself to say:
We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case … (Re X (A Child) (No 3) [2017] EWHC 2036 (Fam); [2017] 3 FCR 584, para 37).
One would not want to make light of the problems faced by the children of ‘middle-class’ households, in gaining a rewarding professional job, a foothold on the housing ladder and a reasonable share of generational wealth, nor the huge moral difficulties that they face, in an increasingly polarised globe. But the bigger picture seems to be that, everywhere one looks, the poor are getting poorer and that this is borne out in the context of British social care.
But the bigger picture seems to be that, everywhere one looks, the poor are getting poorer and that this is borne out in the context of British social care.
The cost of the cuts: the impact on local government and poorer communities (Joseph Rowntree Foundation, March 2015) showed how local authority budgets in Britain were being disproportionately reduced in poorer areas, in that while local authority spending power overall had declined by 27 per cent in real terms over the preceding five years, social care spending had actually risen by eight per cent in wealthier areas, while it had fallen by 14 per cent in poorer areas. It also showed that the combination of budgetary reductions and increased demand was leading to rising levels of need, excessive staff workloads, deteriorating service standards, gate-keeping, and services – particularly services likely to be used by the relatively poor – becoming a last resort.
On 6 February 2018, research figures thus far ‘seen exclusively by the BBC’ demonstrated that this pattern has continued, with overall spending on children’s services falling by 16 per cent in England since 2010, but in the poorest areas by 27 per cent, compared with four per cent in the wealthiest areas (Alison Holt, ‘Poorest areas face biggest cuts to children’s services’, BBC News).
This is the context in which the case law, set out and analysed in Children’s Social Care Law, falls to be understood. It explains why there has been a vast increase in cases involving different forms of gate-keeping: age assessment cases and cases about whether apparently homeless/destitute children are truly children in need or parental bargaining chips, for example. And it explains why there has been an intense focus on process, in particular the process surrounding service reductions: has there been proper consultation, has guidance been considered, has there been due regard to the public sector equality duty and so forth.
Of course, fundamental principles, such as the best interests of the child, do have an important role to play in cases of this kind, and others, despite there being a specific statutory focus and particular facts. It would be good to see, in the future, fundamental principles of this kind playing a greater role in the context of cases that challenge wider strategic/funding decisions. There have been some such cases already, but they have met with mixed success.
In JK (Burundi) v Secretary of State for the Home Department [2017] EWCA Civ 433; [2017] 1 WLR 4567, the Court of Appeal took the view that it was obvious that the secretary of state was not required to treat children’s best interests as the starting point, when setting asylum support rates, but was entitled to view them as subordinate, and operating only within the envelope of the limited budget that the secretary of state had chosen. I confess to bias, but this decision seems plain wrong to me.
On the other hand, children’s best interests have changed substantive decision-making in immigration cases (ZH (Tanzania) being just one example, now, among many) and even in benefits cases: take Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250, where the Supreme Court held that the secretary of state manifestly had no reasonable basis for the decision to terminate disability living allowance paid to severely disabled children after a hospital stay exceeding 84 days, having regard to the duty to treat the best interests of the child as a primary consideration. More recently, in R (DA) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin), Collins J (subject to an appeal) held that the revised benefits cap unlawfully discriminated against lone parents with children under the age of two, by failing to treat the best interests of the child as a primary consideration.
Leaving aside the emergence of the principle of the best interests of the child as a powerful force in all cases involving children, there is a huge amount besides in the legislation and case law relating to children that skilful lawyers and others are likely to be able to build on in the coming years, and I hope Children’s Social Care Law brings all of that law together in a useful and practical way. I do return, though, to the UNCRC, this time article 4, which provides that:
States parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, states parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
For the reasons set out above, despite the huge strides made in children’s law over the last 10 years or so, we are a long way away, still, from fully implementing all the rights in the UNCRC. I do not believe that, as a country, we are remotely close to promoting children’s economic, social and cultural rights to the maximum extent of our available resources.
 
1     See also: Larry Elliott, ‘Child poverty in Britain set to soar to new record, says thinktank,’ Guardian, 2 November 2017. »

About the author(s)

Description: Stephen Knafler QC - author
Stephen Knafler QC is the founder and general editor of the Community Care Law Reports. He is based at Landmark Chambers.