By Tim Spencer-Lane

The Children’s Wellbeing and Schools Bill was introduced in Parliament on 17 December 2024.

Part 1 of the bill contains reforms to children’s social care. Part 2 makes provision relating to education in England. Most of the social care reforms were foreshadowed in the policy paper, ‘Keeping children safe, helping families thrive’, which was published in November 2024.

This article summarises the main provisions that will impact on social workers.

Family group decision making

The bill would add a new section to the Children Act 1989 to impose a duty on local authorities who are considering making a court application for a care or supervision order, to offer a family group decision making (FGDM) meeting to the child’s parents or any person with parental responsibility for the child.

The purpose of the FGDM meeting is to enable a child’s family network to meet to discuss the welfare needs of the child and to make a proposal in response to concerns about the child’s welfare.

The duty does not apply if the local authority determines that it would not be in the child’s best interests.

Child protection and safeguarding

Safeguarding partners

The bill seeks to amend the Children Act 2004 to make it a requirement for the three safeguarding partners (the local authority, NHS integrated care board and police) in each local area to include education and childcare “relevant agencies” as mandatory participants in their multi-agency safeguarding arrangements. Currently, safeguarding partners only need to make arrangements to work with a “relevant agency” if they consider it appropriate to do so.

Multi-agency child protection teams

The bill would insert new sections into the Children Act 2004 to require safeguarding partners to establish and run at least one multi-agency child protection team in their area. The main purpose of these new teams is to support the local authority in delivering its child protection duties under section 47 of the Children Act 1989.

ICBs will be required to nominate a health professional with experience in relation to children’s health, while the police will be required to nominate an officer to be part of each multi-agency child protection team. The local authority is required to nominate someone with experience in education in relation to children and a social worker with experience in relation to children, and may appoint other appropriate individuals after consultation with safeguarding partners.

Information sharing

The bill would also amend the Children Act 2004 to impose a duty on specified persons and bodies to disclose information that may be relevant to safeguarding or promoting the welfare of a child, to other relevant persons in certain circumstances. The duty applies where the person considers that the disclosure may facilitate the exercise by the recipient of any of its functions that relate to safeguarding or promoting the welfare of children, unless disclosure would be detrimental to the child.

The duty to share information will apply to persons listed in section 11(1) of the Children Act 2004, including local authorities, ICBs, NHS trusts/foundation trusts, police forces, probation services and youth offending teams, along with education and childcare “relevant agencies”.

Consistent child identifier

The bill also makes provision, under the Children Act 2004, for a consistent child identifier (also known as a single unique identifier or SUI). Designated persons must include the consistent identifier when processing information about a child for safeguarding and promotion of welfare purposes.

Support for children in care or kinship care, and those leaving care

Kinship local offer

The bill would amend the Children Act 1989 to require local authorities to publish information about their general approach to supporting children in kinship care and kinship carers in their area, as well as financial support which may be available to them in their area (the “kinship local offer”).

Local authorities must take such steps as are reasonably practicable to ensure that children in kinship care and kinship carers receive the information in the kinship local offer.

Supporting educational achievement

Under amendments to the Children Act 1989, local authorities would be required to take appropriate measures to support the educational outcomes of children in need and children in kinship care.

The steps that can be taken under this duty include enabling children to overcome barriers to their educational achievement and improving educational attendance. The duty is a strategic duty, which does not extend to the educational outcomes of individual children.

The local authority must appoint at least one person to discharge the duty (in practice this is usually the virtual school head).

Supporting care leavers

The bill would also introduce a new provision in the Children Act 1989 to require each local authority to consider whether each former relevant child (up to age 25) requires “staying close support” and where their welfare requires it, to offer that support.

“Staying close support” is support to assist the former relevant child: (1) to find and keep suitable accommodation and (2) to access services relating to health and wellbeing, relationships, education and training, employment and participating in society. Support means the provision of advice, information and representation.

There are also amendments to the Children and Social Work Act 2017 to require each local authority to also publish the arrangements it has in place to support and assist care leavers in their transition to adulthood and independent living.

Accommodation of children

Regional co-operation

The bill seeks to amend the Children Act 1989 to give the secretary of state powers to direct two or more local authorities to make regional co-operation arrangements to carry out their functions in relation to the accommodation of looked after children.

The arrangements could be: (1) to carry out their strategic accommodation functions jointly, (2) for those functions to be carried out by one of the local authorities on behalf of the others or (3) for a corporate body, of a kind that may be specified in the secretary of state’s direction, to support them in carrying out those functions.

Deprivation of liberty

The bill also includes a number of changes to section 25 of the Children Act 1989. It would change the references from “restricting” liberty to “depriving” children of their liberty, to better reflect the nature and purpose of this section.

The bill would also provide for the authorisation of the deprivation of liberty of children in alternative placement types beyond just a secure children’s home. It brings within the scope of section 25 accommodation provided for the purpose of care and treatment of children that is capable of being used to deprive a child of their liberty (“relevant accommodation”).

The secretary of state would have powers to set out in regulations: (1) the maximum period for which a child may be kept in relevant accommodation both with and without the authority of a court, (2) the cohort of children who may be placed in relevant accommodation, and (3) a description of the alternative accommodation.

Currently, many children are being deprived of their liberty outside of a statutory framework, via the inherent jurisdiction of the High Court.

The government’s intention is to “provide an alternative statutory route to authorise the deprivation of liberty of a child in a more flexible form of accommodation, bringing more deprivation of liberty cases under a statutory framework via section 25, including its criteria for access, mandatory review points and parity with [secure children’s homes] in terms of access to legal aid”.

Regulating provider groups

The bill would give new powers to Ofsted in relation to parent undertakings (ie where more than one setting is owned or controlled by the same private or voluntary provider group).

The bill seeks to place a duty on parent undertakings to develop and implement an improvement plan where Ofsted have identified quality issues in multiple settings and reasonably suspects there are grounds for cancellation of registration in relation to those settings.

Should parent undertakings not comply with these requirements, Ofsted will have the power to issue an unlimited monetary penalty.

Tackling unregistered children’s homes

The bill also includes new powers for Ofsted to impose monetary penalties for breaches of the Care Standards Act 2000, including for operating unregistered children’s homes. This is designed to give Ofsted a quicker alternative to prosecution in these cases.

Financial oversight regime

The bill would also introduce a financial oversight regime for relevant children’s social care providers who meet conditions that will be set out in regulations. These are likely to relate to the size of the provider and whether it would be difficult to replace were it to fail.

The bill would give the secretary of state the power to require providers made subject to the regime to submit a “recovery and resolution plan”, setting out risks to their financial sustainability and actions they propose to take in response to these.

The secretary of state would also have the power to arrange an independent business review of a provider where there is significant financial risk to its sustainability. The secretary of state would also be under a duty to warn local authorities if there was a real possibility of relevant services failing, with potential adverse effects for the councils or any children looked after by them.

Limiting profits

The bill also provides for regulations to be made enabling the secretary of state to cap any profit made by a non-local authority registered children’s social care provider. The secretary of state may only make such regulations if satisfied that it is necessary to do so.

The government has said that it only intends to use the provision if other policies do not sufficiently reduce profiteering in the children’s social care placements market.

Agency workers

The bill seeks to provide a power for the secretary of state to make regulations applying to all English local authorities on the use of “agency workers” in children’s social care. The regulations may require that the agency workers meet certain requirements and make provision about how they should be managed and the terms on which they are supplied to local authorities.

When in force, this regime would replace the rules, introduced in 2024 under statutory guidance, regarding local authorities’ use of agency social workers in children’s services.

Ill-treatment or wilful neglect

This bill also intends to close a gap in existing legislation by extending the offences of ill-treatment or wilful neglect by a care worker or care provider to someone in their care, under the Criminal Justice and Courts Act 2015, to children aged 16 or 17 in regulated establishments in England.

Currently, the 2015 act protects against ill-treatment or wilful neglect by care workers providing health care for an adult or child or social care for an adult, while the Children and Young Persons Act protects those under 16 from cruelty by those who have responsibility for them.

Children not in school

The bill proposes a number of reforms aimed at protecting children who are being educated at home. Most of these involve amendments to the Education Act 1996 and include:

• Compulsory registers of children not in school in each local authority area in England, and a duty on local authorities to support the children on their registers (should a parent request this).
• Changes to the school attendance order (SAO) legal framework, for example, by introducing statutory timeframes for issuing and processing SAOs and making it an offence for parents to withdraw a child subject to an SAO from school without following the proper procedure.
• A requirement for a parent to obtain local authority consent to home educate if a child is: (1) subject to an enquiry under section 47 of the Children Act 1989, (2) on a child protection plan, or (3) at a special school or academy.
• A power for the local authority, in cases where a child is subject to a section 47 Children Act 1989 enquiry or on a child protection plan and is already being home educated, to review whether it is in the best interests of the child to be in school and require that the child be registered at a school.
• A duty for local authorities to consider the home environment and other learning environments when determining whether or not such children should be required to attend school.

What happens next?

The bill will be subject to debate in Parliament and will no doubt be amended during its passage. It is likely to become law sometime in spring 2025.

Some provisions will come into force the day the act is passed (such as the powers to make regulations and orders), others will come into force two months later (such as the duty to publish information for kinship carers and children in kinship arrangements, and the extension of the ill-treatment or wilful neglect offences.

Some provisions will be implemented over a longer period of time. For example, the new multi-agency child protection teams will not be implemented until 2027.

Tim Spencer-Lane is a lawyer specialising in social care, mental capacity and mental health and is legal editor of Community Care Inform.

By Tim Spencer-Lane

On 6 November 2024, the Mental Health Bill was introduced in Parliament. The bill contains measures to amend the Mental Health Act 1983 (MHA) in order to strengthen the voice of the patient and ensure that that detention is only used when, and for as long as, necessary.

The bill is largely the same as the draft Mental Health Bill published by the previous government, itself largely based on the recommendations of the Independent Review of the Mental Health Act in 2018.

However, the bill also takes forward a number of recommendations from the 2023 report of a joint committee of both Houses of Parliament that scrutinised the draft bill.

The key changes since the draft bill include the following:

• The removal of “how soon” harm may occur from the detention criteria.
• The removal of the requirement for the approved mental health professional (AMHP) to see the nominated person – the role that will replace the nearest relative – in person.
• A new duty on NHS commissioners to make arrangements to inform people about advance choice documents and provide appropriate help to create one.
• Including the wording of the principles identified by the independent review within the MHA’s requirements for a code of practice.
• A new duty on the patient’s responsible clinician to consult with a professional involved in the patient’s treatment when taking the decision to discharge.

What happens next?

The bill will be debated and must be approved by both Houses of Parliament. It will no doubt be amended during its passage through Parliament. Once approved, it will be sent for Royal Assent and will then become an act (law).

It will not come into force immediately. It is estimated that full implementation may take 10 years, largely due to the lead-in time required to train additional clinical and judicial staff.

The following is a general summary of the key provisions of the Mental Health Bill.

Amending the detention criteria

The bill amends the criteria for detention under part 2 of the MHA and for renewals. The aims are to provide greater clarity as to the level of risk that a person must present in order to be detained and to reduce the use of the MHA for people with a learning disability and autistic people.

Firstly, section 2 (admission for assessment) is amended to insert the following new tests for detention:

• That serious harm may be caused to the health or the safety of the patient or another person, unless the patient is detained; and
• It is necessary, given the nature, degree and likelihood of the harm, for the patient to be detained.

Secondly, the section 3 (admission for treatment) detention criteria are amended to insert the following new tests:

• That serious harm may be caused to the health or the safety of the patient or another person, unless the patient receives medical treatment;
• It is necessary, given the nature, degree and likelihood of the harm, for the patient to receive medical treatment;
• That medical treatment cannot be provided unless the patient is detained under the MHA; and
• Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect of alleviating or preventing the worsening of the disorder or one or more of its symptoms or manifestation).

Third, it will no longer be possible to detain a person with a learning disability or an autistic person under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment.

This exclusion does not apply to part 3 patients (those in the criminal justice system).

From nearest relative to nominated person

The bill replaces the nearest relative with a new statutory role, the nominated person (NP).

The NP can be selected by the patient at any time when they have capacity or competence to do so. The nomination must be witnessed by a health or care professional, who must confirm a number of matters, including that there is no reason to think that the patient lacks the relevant capacity or competence or that undue influence has been used.

The NP continues to represent the patient even if that patient subsequently becomes unwell and no longer has the relevant capacity or competence. If the patient lacks capacity or competence to nominate, and has not made a nomination, an AMHP may appoint an NP for the patient.

The NP has the same rights and powers as nearest relatives have now. In addition, the NP would have new rights to be consulted about statutory care and treatment plans (see below) and transfers between hospitals and to object to the use of a community treatment order (CTO).

Currently, when a nearest relative exercises their powers inappropriately or unreasonably, the only means of overruling them is to remove or displace them from their role.

The bill changes this to enable the NP to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that where appropriate, the NP can continue to have a role in the patient’s care and treatment.

The county court retains the power to terminate the appointment of an NP, either permanently or for a specified time.

Compulsory medical treatment safeguards

The bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.

It introduces a new ‘clinical checklist’, which applies to clinicians making treatment decisions. There is a duty on the treating clinician to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient.

These include considering the patient’s wishes and feelings, assisting patients to participate in treatment decisions and consulting those close to the patient. This is intended to enhance the role of the patient in decision making under the MHA.

New safeguards are introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee of lasting power of attorney, deputy or the Court of Protection.

In these circumstances, the treatment cannot be given unless there is a “compelling reason” to give the treatment and a second opinion approved doctor (SOAD) has provided certification. A compelling reason means that no other forms of treatment are available or that alternatives are available, but the patient has not consented or they would conflict with an advance decision or a decision by a donee, deputy or the Court of Protection.

Where the patient is consenting to the medication, or lacks capacity or competence (and there is no conflict with any advance decision or decision by a donee, deputy or the Court of Protection), the bill provides that the treatment cannot continue beyond two months, unless an approved clinician or SOAD has certified certain matters. This is a reduction of the current three-month time-period.

The bill also gives additional safeguards to patients who have refused urgent electro-convulsive therapy, either with capacity or competence at the time, in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee, deputy or the Court of Protection. In order to give such treatment, a SOAD must first issue a certificate within a time period prescribed in regulations.

Also, the bill prohibits compulsory treatment on an urgent basis of those with the relevant capacity or competence, in order to alleviate serious suffering, as is currently permitted under section 62. It only permits treatment in the face of a capacitous refusal based on a SOAD certificate and “compelling reasons”.

Community treatment orders (CTOs)

The bill revises the criteria for the use of CTOs in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration has been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. In addition, there must be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

The CTO must also be agreed in writing by the community clinician. The mental health tribunal is also given the power to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary.

Learning disability and autism

Under the bill, people with a learning disability and autistic people will not be able to be detained for treatment under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. Also, they will not be able to be made subject to a CTO solely on the basis of their learning disability or autism.

The bill also places care (education) and treatment reviews (C(E)TRs) on a statutory footing. C(E)TRs are designed to ensure that people with a learning disability and autistic people are only admitted to hospital when necessary and for the minimum possible time.

The NHS commissioning body must ensure that C(E)TRs are held when a patient with a learning disability or an autistic patient is detained under the MHA. Certain bodies are required to have regard to the recommendations made by the C(E)TR.

There is a duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties. The aim is to help ensure that adequate community services are available for people with a learning disability and autistic people, so as to avoid unnecessary hospital admissions.

Statutory care and treatment plans

The bill introduces statutory care and treatment plans for detained patients and those subject to community treatment orders and guardianship, excluding those subject to short-term detention powers.

Responsible clinicians are placed under a duty to prepare and regularly review the plan, and regulations will be used to set out the contents of the plan.

Independent mental health advocates (IMHAs)

IMHAs are specially trained advocates who represent and support patients detained under the MHA. The bill extends the right to an IMHA to informal patients.

It also introduces an “opt-out” system, whereby hospital managers and others are required to notify advocacy services about qualifying patients and those services must then arrange for patients to be interviewed to find out if they want an IMHA. The aim is to increase the uptake of IMHAs.

These changes apply in England only.

Detention periods and their renewal

The bill shortens the period that a patient may be kept in detention for treatment. The initial detention period is reduced from six months to three months. This can be renewed for a further three months (reduced from six months) and then for a further six months (reduced from one year).

These changes mean the patient’s initial detention will expire sooner and if the detention is to continue, it must be reviewed and renewed more frequently.

Mental health tribunals

The bill provides that patients have greater access to the tribunal. Specifically:

• section 2 patients can apply to the tribunal within 21 days of detention (rather than 14 days currently);
• section 3 patients can apply within three months (rather than six months currently); and
• automatic referrals to the tribunal take place – in cases where the patient has not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.

Discharge process

The bill provides that before a patient is discharged from detention, the responsible clinician must consult someone professionally concerned with the patient’s treatment.

This is intended to ensure that patients are not discharged inappropriately where they may be a risk to themselves or others. There are similar safeguards in respect of the decision to discharge guardianship.

Principles

The bill amends section 118 of the MHA, with the effect of imposing statutory requirements in relation to the content of the code of practice to include the wording of the principles formulated by the Independent Review of the MHA.

Those principles are: choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will apply to the codes of practice for both England and Wales.

Section 117 aftercare

The bill changes the ordinary residence rules that identify which local authority must provide or arrange section 117 aftercare services to an eligible person, by applying new ‘deeming provisions’.

In broad terms, these mean that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

So, for example, where a person living in local authority A is placed into a care home in the area of local authority B, local authority A will remain responsible for providing or arranging their aftercare.

The mental health tribunal is also given the power to recommend to the NHS bodies and local authority to provide aftercare services for a patient. The tribunal can reconvene to reconsider a case if any such recommendation is not complied with.

Advance choice documents

The bill places duties on health bodies to make information available about, and help people to create, advance choice documents.

These are written records of a person’s wishes, feelings and decisions about their care and treatment that are made when the person has the relevant capacity or competence.

Clinicians must have regard to these documents (but not necessarily follow them) when providing medical treatment under the MHA.

Places of safety

The bill removes police cells from the definition of “places of safety” for the purposes of sections 135 and 136. This change is in response to evidence that police cells are not suitable environments for people with severe mental health needs awaiting assessment and treatment.

The bill also ends the use of prison as a place of safety for people in contact with the criminal justice system.

Patients in the criminal justice system

The bill aims to speed up the transfer of prisoners with a mental disorder to hospitals by introducing a statutory time limit. The relevant health and justice agencies are required to seek to ensure that a transfer takes place within 28 days.

The bill creates a power that allows the mental health tribunal or the secretary of state for justice to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.

This will apply in a small number of high-risk cases where the patient is no longer benefiting from hospital detention, but the conditions are necessary to protect the public from serious harm.

This is a response to the Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60, which held that a patient with the relevant capacity cannot be discharged in this manner under the existing provisions of the MHA.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform. 

Long-awaited legislation to overhaul the “outdated” Mental Health Act 1983 (MHA) has been introduced to Parliament.

The government said the Mental Health Bill would tackle racial discrimination in care, end the inappropriate detention of people with a learning disability and autistic people and give patients a greater say in decisions over their care.

The bill’s publication fulfils a commitment in Labour’s 2024 election manifesto and is the culmination of a seven-year process that started with Theresa May’s commissioning of an independent review of the act, led by psychiatrist Simon Wessely, in 2017.

Wessely’s report, published the following year, shaped the previous government’s draft Mental Health Bill, issued in 2022. However, the Conservatives failed to issue legislation to reform the MHA before losing power in July this year.

Labour’s bill is similar to the Conservatives’ 2022 draft bill but with changes, including the acceptance of some recommendations made by a parliamentary committee that scrutinised the draft legislation.

Raising thresholds for detention and CTOs

A key plank of the bill is to raise the threshold for detention in hospital – both for assessment (section 2) and for treatment (section 3).

Section 3 of the MHA currently permits detention when a person is suffering from a mental disorder of a nature or degree that makes medical treatment in hospital appropriate, such treatment is necessary for the health or safety of the patient or the protection of others and cannot be provided without detention, and “appropriate medical treatment” is available for them. This is defined as treatment that is appropriate “taking into account the nature and degree of the mental disorder and all other circumstances” of the person’s case.

Under the bill, a person could only be detained where serious harm may be caused to the health or the safety of the patient or another person without treatment, treatment is necessary given the nature, degree and likelihood of the harm, it cannot be provided without detention and appropriate treatment is available.

For treatment to be appropriate, there would need to be a reasonable prospect of alleviating or preventing the worsening of the disorder or its symptoms.

Reducing use of detention and racial inequalities

The reform is designed to reduce the number of detentions, of which there were 52,458 in England in 2023-24, up by an estimated 2.2% on the year before, according to NHS England figures.

It is also intended, along with other measures in the bill, to reduce persistent racial inequalities in the use of the act, with black people more than three and a half times as likely to be detained as white people in 2023-24.

Similar rationales lie behind provisions in the bill to tighten criteria for community treatment orders (CTOs).

They allow responsible clinicians to discharge detained patients with the power to recall them, based on the risks of their condition deteriorating if they do not receive appropriate treatment in the community. Clinicians also place conditions on the person, designed to mitigate risks and promote treatment, with non-compliance with these taken into account in determining whether the person should be recalled.

Tightening criteria for CTOs

However, there are longstanding concerns that CTOs are used to frequently, for too long and disproportionately on black people, who were subject to the orders more than seven times as frequently as white people in 2023-24.

Under the bill, CTOs could only be used if there was a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”.

There would also need to be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

Limiting MHA use in relation to autism and learning disabilities

Another core reform objective is significantly reducing the number of compulsory admissions for autistic people and people with a learning disability, to combat the persistent issue of at least 2,000 being detained at any one time in England, often for long periods and without adequate care.

Under the bill, people with a learning disability and autistic people could not be detained for treatment under section 3 unless they had a co-occurring mental health condition that warrants hospital treatment.

Also, they would not be able to be made subject to a CTO solely on the basis of their learning disability or autism.

Other bill measures

Other measures in the bill include:

• Replacing the nearest relative (NR) role with that of nominated person (NP). Like the NR, the NP would provide a safeguard for the rights of the detained person, including by objecting to them being admitted or ordering their discharge. However, unlike the NR, the person would be able to appoint their NP whenever they had the capacity or competence to do so.
• Ending the use of police cells and prison as “places of safety” to which people in crisis can be removed pending assessment under the act under sections 135 and 136. This is in response to longstanding concerns that these are not suitable places for people with severe mental illness to be taken.
• Making it a legal requirement for each patient to have a care and treatment plan, which the government said would be tailored to individuals’ needs and make clear what was needed for them to progress to being discharged.
• Providing access to independent mental health advocates (IMHAs) to voluntary patients.
• Increasing safeguards for people subjected to compulsory treatment following detention in hospital.
• Shortening detention periods and making renewals more frequent.
• Changing the way that ordinary residence is determined for people receiving aftercare under section 117 of the act so that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

Charities welcome bill but urge investment 

Charities welcomed the Mental Health Bill but said it needed to be accompanied by investment in improving the quality of care and in providing community-based alternatives to detention.

Mind said that the introduction of statutory care and treatment plans and the removal of police and prison cells as ‘places of safety’ would help create “a step change in how people are supported at times of crisis and as they live with enduring mental illness”.

Chief executive Sarah Hughes said the bill also needed to address “the systemic racism enabled by the Mental Health Act”.

‘Mental health emergency needs more than reformed MHA’

“The announcement today marks a significant moment, but we know there is more to do and questions to ask about whether this will go far enough to fix the broken system as we know it,” she added.

“The mental health emergency we are facing will need much more than a reformed act. It will demand radical and brave action from government alongside proper funding.”

The Centre for Mental Health issued a similar message, with chief executive Andy Bell saying: “The bill is an essential step towards modernising mental health services. But it must be accompanied by investment in mental health services and buildings so that people get the care and support they need when they need it in environments that are safe and therapeutic.”

The Mental Health Foundation, meanwhile, echoed Mind in highlighting the importance of tackling racial inequalities in mental healthcare.

Act has ‘driven racial disparities and made crises worse

“The original version of the act has driven racial disparities, stripped those who are sectioned of their humanity in a wholly unnecessary way, and all too often made crises worse,” said chief executive Mark Rowland.

“We particularly welcome reforms to give greater say to patients, such as granting people with severe mental health problems more control over who makes decisions for them during a crisis, banning the use of police cells as ‘places of safety’ for people experiencing a crisis, and addressing the inappropriate use of community treatment orders, which Black people were 11 times more likely to receive.”

Reform ‘must be properly resourced’

For the British Association of Social Workers, chief executive Ruth Allen said: “The Mental Health Act needs reform, and we welcome that this government has decided to make it a priority in the first parliamentary session. But as we said when the draft Mental Health Bill was published, any reform needs to be properly resourced and must be implemented in ways that promote human and social rights.

“BASW thoroughly supports the move towards an approach based upon principles relating to least restrictive intervention and therapeutic benefit, but we remain concerned that the approach taken in the bill still risks over-medicalising issues where societal factors are the dominant factors contributing to mental health distress. This bill cannot stand in place of action on public, preventive and community mental health measures for a healthier society overall.”

The Voluntary Organisations Disability Group, which represents charities providing care to disabled people, said it hoped the reform would reduce the numbers of autistic people and people with a learning disability detained in hospitals, often referred to as assessment and treatment units (ATUs).

‘A human rights scandal’

“Currently there are over 2,000 autistic people and people with a learning disability detained in ATUs against their will, long distances from home and families are unaware of what is happening to their loved ones,” said chief executive Rhidian Hughes. “It is a human rights scandal that must be urgently addressed, and this bill represents a long-awaited step in the right direction.”

He said that, alongside the bill, the government needed to invest in community alternatives to long-stay hospitals.

This message was echoed by the National Autistic Society, which said autistic people detained in hospital faced long stays and “being subjected to unnecessary restraint, overmedication, and solitary confinement”.

It said the bill must “protect autistic people’s human rights”, though added: “Changing the law is just part of what’s needed. Without investing in making sure the right support is available everywhere, autistic people will still face this inequality.”

However, concerns about the bill itself were raised by Free Our People Now, a campaign led by autistic people and people with learning disabilities, to end the use of psychiatric hospitals for them.

Right to aftercare following section 2 detention urged

It pointed to the fact that, while autistic people and people with learning disabilities would still be detainable under section 2 of the MHA, for assessment, this would not entitle them to free aftercare following discharge.

“Without the right to aftercare support and services, we are concerned that many autistic people and people with learning difficulties will continue to be on the merry-go-around of being in and out of hospital”, said Simone Aspis, campaign manager for Free Our People Now, which is supported by user-led organisation Inclusion London.

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The Public Law Outline was relaunched last year with the aim of cutting delays in the length of care proceedings to meet the statutory 26-week target, including by reducing the number and scope of hearings.

A core part of the relaunch was ensuring that the pre-proceedings phase was used as effectively as possible in giving families the opportunity to stay together, underpinned by best practice guidance.

To help social workers navigate their way through these changes, Community Care Inform Children is holding a webinar on the topic delivered by experienced family lawyer Bruce Tregoning.

It will take place on 24 April 2014, from 12noon-1pm.

During the session, which is free for Inform Children subscribers, Bruce will help you to understand:

• Your priorities and responsibilities at each stage of the PLO, setting out the court’s expectations of social workers.
• How to use assessments effectively to investigate concerns, formulate plans and encourage change within the family, and how these can support court evidence if necessary.

Inform Children subscribers can secure their place by entering a promo code onto the online booking form.

This should have been emailed to you but, if you have not received it, please email ccinformhelpdesk@markallengroup.com for the code.

A review into the “complex and fragmented” social care legal framework for disabled children has opened.

The Law Commission will examine how the legal framework – some of which dates back over five decades – can be reformed to improve consistency, clarity and fairness for children and parents.

The Department for Education commissioned the review as part of its draft strategy, Stable Homes, Built on Love, in response to the Independent Review of Children’s Social Care.

Current framework ‘outdated’

In its final report, the care review said the current framework was “outdated” and involved a “patchwork of duties” that sat across multiple pieces of legislation, making it harder for both families and professionals to understand disabled children’s legal entitlements to support.

The DfE’s objectives for the review are:

• Resolving the patchwork of legislation that currently governs social care for disabled children.
• Improving how the law on social care for disabled children fits with wider social care law.
• Reviewing the outdated language and definitions underpinning this area of law.

For the Law Commission, public law commissioner Nicholas Paines KC said: “It is essential that the law relating to disabled children’s social care is simplified and modernised. The current legal framework governing social care for disabled children is complex and fragmented, with some provisions dating back over 50 years.

“This contributes to inconsistency, and a lack of clarity for parents and care givers of disabled children. I am therefore pleased that the Law Commission will be undertaking this review.”

By Rob Preston and Mithran Samuel

The government’s overhaul of age assessments of young asylum seekers will go ahead as planned, after peers withdrew their opposition.

The provisions, in the Nationality and Borders Bill, will allow the introduction of “scientific” measures to assess age and enable the government to press councils to have children in their care assessed and refer their decisions for review by a new national body.

Children’s rights, refugee and social work organisations have warned the changes will put children at risk – by leading to them being misidentified as adults – and undermine social workers’ expertise.

Last month, the House of Lords amended the bill to require age assessments to be carried out by council social workers, only be conducted when there are significant reasons to doubt age and only involve scientific methods that are “ethical and accurate beyond reasonable doubt”.

The government used its majority in the House of Commons to overturn the amendment and then, when the bill returned to the Lords last week, opposition peers did not revive it. Liberal Democrat Baroness Hamwee tabled a weaker amendment that she later withdrew.

Though the two houses still need to agree a final version of the bill when Parliament returns from its Easter recess next week, this means the age assessment changes will go ahead as the government plans once the bill becomes law.

‘Undermining social workers’

The legislation will create a national age assessment board (NAAB), appointed by the home secretary, to oversee the system, review local authority assessments and carry out its own in some situations.

In cases where the government doubts the age of a claimant under the care of a council, the authority will have to refer the case to the NAAB for assessment, assess the claimant’s age itself or inform the home secretary it is satisfied the person is the age they claim to be.

In the latter two cases, the council will have to provide the home secretary with reasonable evidence. However, the provisions also allow the NAAB to carry out an assessment if the home secretary doubts a council’s decision regarding a claimant’s age – though the board’s decision as to age will be binding on the government.

These measures led the Refugee and Migrant Children’s Consortium (RMCC) to claim the changes would undermine social workers’ knowledge and expertise, following their introduction last October.

The legislation will also enable the home secretary to make regulations specifying scientific methods that can be used for age assessments, including x-rays or analysis of saliva or other bodily samples.

These will only be permissible with the consent of the person being assessed, or someone able to consent on their behalf. However, the legislation allows officials to take a refusal to give consent as damaging the person’s credibility.

‘Culture of disbelief’

Following the latest round of parliamentary debate, the Refugee Council, which provides support to unaccompanied children at entry points to the UK, warned the government’s plans risked more children being misidentified as adults. In that event, they would not be educated, and supported and accommodated within the care system, but simply housed and given £40.85 per week to live on.

“We have seen first-hand the additional suffering and trauma which is caused by this culture of disbelief,” said Helen Johnson, head of children’s services at the charity.

“We are really concerned that the government is pushing forward with these new plans – which risk more children and young people being ascribed the wrong age, losing the support they need and exposing them to danger.

“These ‘scientific methods’ are not supported by the scientific community and can be stressful, intrusive, frightening and re-traumatising for the young people involved.”

‘Social workers may feel pressured’

Stewart MacLachlan, senior legal and policy officer at Coram Children’s Legal Centre, said the bill’s proposals will “make it more problematic for social workers to do their job ethically and correctly”.

“You may find that social workers feel pressured into doing assessments or feel they are not adequately prepared to [undertake scientific assessments],” he said.

MacLachlan said some children were already being sent to inappropriate accommodation after initially being assessed as adults and later found to be children.

“The UK government’s proposals will lead to even more children being put at risk and further delay a child’s path to safety,” he said.

“There is no accurate way to assess age, and ‘scientific’ methods have been criticised by human rights bodies in other European countries.”

Under the legislation, the home secretary will only be able to specify scientific methods for use after determining they are appropriate, based on scientific advice.

The Home Office has set up a scientific advisory committee to advise on appropriate methods of assessment and, in January, appointed forensic anthropologist Professor Dame Sue Black as the committee’s interim chair. The department said it would make a permanent appointment “in due course”.

However, anti-trafficking charity Love 146 said it was not reassured by the government’s insistence that it would consult expert advice on scientific age assessment methods.

Need for ‘holistic, trauma-informed assessments’

A spokesperson said these methods had been “previously discredited by the scientific community” and were “invasive, unethical, non-child centred and disregard children’s rights and needs”.

Instead, age assessments needed to be carried out “in a holistic, child-focused and trauma-informed manner, something which has been shown can be a positive experience”.

The charity called for investment to train social workers “to assess [young asylum seekers] with the sensitivity, care and respect they deserve, whether their claimed age is accepted, or they are found to be an adult,” the spokesperson added.

Government questions reliability of ‘Merton’ assessments

However, defending the government’s plans in parliament last week, advocate general for Scotland Lord Stewart questioned the current approached to age assessments, based on the leading case of B v London Borough of Merton [2003].

“I stress that although there are questions about the accuracy of scientific methods, we simply do not know how accurate or reliable the current approach of the Merton-compliant age assessment is. We are aware of cases where individuals have been assessed to be of vastly different ages when assessed independently by different social workers in different local authorities.

“Genuine children whose ages are in doubt will therefore benefit from more informed decision-making as a result of supplementing the current age assessment process with scientific methods with known accuracy – or a known margin of doubt, I perhaps might more accurately say – and reducing the risk that children may be misidentified as adults and vice versa.”

Story updated 8 December

Children should be removed from their families if there is “any inkling” of harm to them, the education secretary has said.

Nadhim Zahawi made the comment in response to a question from fellow Conservative MP Bob Blackman following his statement on the government’s response to the Arthur Labinjo-Hughes case yesterday.

Blackman had said that what Arthur’s case had in common with those of Peter Connolly (2007), Victoria Climbié (2000) and Jasmine Beckford (1984) was that “opportunities to take a child to safety were missed”.

He added: “Will [Zahawi] make sure that the message goes out to frontline children’s social workers that if they have a suspicion—a suspicion—of a child being abused, it will be thoroughly investigated, and if necessary that child will be removed to a place of safety?”

In his response, Zahawi, referencing the national review and joint area inspection he had commissioned to learn lessons from Arthur’s case, said: “I think social workers are doing a tremendous job, and I think it is important that multi-agency work—for whatever reason, and we will find out through these two reviews—missed Arthur in this case and did not take him away.

‘Take child away if inkling of harm’

“The father and partner were obviously evil and manipulative, but nevertheless we have to make sure, if there is any evidence, any inkling, any iota of harm to any child, that the child is taken away immediately.”

He was later asked by another Conservative MP, Laura Trott, about the risks of responses to Arthur’s case leading to a significant increase in referrals and children being taken into care, as happened following Peter Connolly’s case.

Trott said: “We need an increase in resources for social workers in the near term to handle that increase in referrals, and I do think that a balance needs to be struck between taking children away from their parents, or the home that they are in, and making sure that they are safe. Will he ensure that he sends that message to social workers?”

In response, Zahawi delivered a similar message to the one he gave Blackman: “She is absolutely right about how social workers identify support networks for children—I have seen them do that brilliantly. Of course, if there is a scintilla of doubt in terms of any harm being caused to a child, they absolutely should be taken away.

“She also makes an important point about learning from previous cases and the additional work that will now be placed on the social work frontline. We are cognisant of that, and I know that the minister for children and families [Will Quince] is looking at how we can continue to support the frontline.”

Children Act reform not ruled out

Zahawi’s line seems to go beyond that provided for by the Children Act 1989, which makes suffering, or being likely to suffer, significant harm as the threshold for a care order (section 31), with reasonable suspicion of this being sufficient for an emergency protection order (section 44).

During the session, Conservative MP David Simmonds asked Zahawi, who was children’s minister from 2018-19, whether he agreed whether the Children Act 1989 was “perhaps in need of updating”.

In response, Zahawi said any decision on legislative change would need to await the national review into Arthur’s case, the joint area inspection of Solihull and the children’s social care review.

However, he said: “I will not rule out legislative changes if we need to make them.”

‘We cannot have kneejerk reactions’

Zahawi’s comments were criticised by the British Association of Social Workers, who said: “We understand that this is a highly emotive issue, and we absolutely must ensure legislation and guidance is robust on child protection, but we cannot have kneejerk reactions.

“It is premature for the government to be discussing legislative changes to the Children’s Act 1989 while we still wait for more information and conclusions from reviews that are being undertaken.

“All changes to legislation and guidance should go through the proper parliamentary and consultation processes to make sure that we get it right – because we simply cannot afford to get it wrong. Especially not for the many children and young people who receive support from social workers every single day.”

Children ‘best with their family where possible’

In its response to Zahawi’s comments, Association of Directors of Children’s Services president Charlotte Ramsden said “the principle that wherever possible children are best placed in their family…sits at the heart of social work and is enshrined in the Children Act 1989”.

She added: “The tension between early intervention and the prompt removal of children from a dangerous situation must be acknowledged as should the real difficulties and dilemmas faced by our staff when making complex, life changing decisions to keep children safe from harm based on the multi-agency information assessment and analysis available at that time.

“We welcome the recognition by the secretary of state for education that the effectiveness of the multi-agency system is crucial to assist in these decisions and that the plan for the national panel review and the [joint targeted area inspection] reflect this.”

Story updated 3 November 2021

Campaigners have accused the government of undermining practitioners’ knowledge and experience with its proposals to tighten age assessments for unaccompanied young people claiming asylum.

A group of children’s and refugee charities and the British Association of Social Workers (BASW) have raised concerns about the changes, which would enable the government to press councils to have children in their care age assessed and to refer their decisions for review by a new national body.

The measures, unveiled last month as amendments to the Nationality and Borders Bill and agreed by MPs today (2 November), would also allow the use of much-disputed “scientific” methods of age assessment. While these could only be carried out with appropriate consent, officials would have to take a refusal to consent to these as undermining the claimant’s credibility.

Campaigners also said the changes would place a “high standard of proof” on young asylum-seekers, which would “significantly increase the risk of children being wrongly treated as adults”.

While unaccompanied children claiming asylum are accommodated and supported within the care system, those deemed to be adults are simply housed and given £39.63 per week to live on, with some subject to immigration detention.

The committee of MPs scrutinising the bill agreed the measures today so they are now part of the legislation, and will almost certainly survive the remainder of its passage through the Commons because of the government’s effective majority of 85 seats. However, they may come under pressure when the bill goes to the House of Lords.

Age assessment board

The changes would introduce a “national age assessment board” (NAAB), appointed by the home secretary, to oversee the system, review local authority assessments and carry out its own in some situations.

In cases where the government doubted the age of a claimant under the care of a council, the authority would have to refer the case to the NAAB for assessment, assess the claimant’s age itself or inform the home secretary it was satisfied the person was the age they claimed to be. In the latter two cases, it would have to provide the home secretary with reasonable evidence. However, the provisions also allow the NAAB to carry out an assessment if the home secretary doubts a council’s decision regarding a claimant’s age – though the board’s decision as to age would be binding on the government.

Current statutory guidance on age assessments states that “it is likely that the local authority’s decision will be decisive in most cases”, though Home Office officials can question councils’ assessments if the findings do not seem evidenced or compliant with case law.

However, charity coalition the Refugee and Migrant Children’s Consortium (RMCC), which includes BASW, said the new provisions went further.

‘Undermining social workers’

In a briefing for MPs, it said: “Local authorities have long expressed frustration over having to conduct age assessments when Home Office caseworkers challenge their view that they see no reason to doubt a young person’s age. Introducing this change undermines the specialist knowledge and experience needed by social work professionals, whilst tying them up in unnecessary age assessment processes at the expense of their stretched resources.”

BASW said that while it supported the idea of an NAAB led by social workers that was part of a multi-agency, holistic approach to age assessments, it did not support it in its current form.

“We are concerned at the lack of transparency and accountability of the NAAB,” it said in a statement. “We also have great concern about the powers being used to override professional judgment.”

Speaking to the committee, government whip Craig Whittaker said: “The board will predominantly consist of qualified social workers who will be dedicated to the task of age assessments and the training and the sharing of expertise will ensure a more consistent approach to the task of age assessment.”

He added: “Local authorities will still retain the ability to conduct age assessments themselves if they prefer to do so or believe the person is actually the age they claim to me, then they must inform the Home Office accordingly.” In response to a question from an opposition committee member, Whittaker denied this was a “power grab” of local authority responsibilities by central government.

‘Scientific’ age assessments

A new clause in the bill would enable assessors to use methods such as “examining or measuring parts of a person’s body, including by the use of imaging technology” or analysing their saliva or other bodily samples to determine their age.

This is despite current Home Office guidance stating that it was not policy to commission dental checks or x-rays to inform an age assessment and that scientific methods “can only estimate age and as a consequence there will always be a margin for error”.

The Royal College of Paediatrics and Child Health stated in 2019 that the use of radiological assessment was “extremely imprecise and can only give an estimate of within two years in either direction”.

BASW expressed concern about the proposals and called for a relevant professional body to be required to approve the use of a “scientific method” as a valid way to determine age assessment before it was used.

Stewart MacLachlan, senior legal and policy officer at Coram Children’s Legal Centre, part of the RMCC, urged the Home Office to rethink its “regressive” proposals.

“It is simply unethical to legislate for the care of children based on unsound scientific research without the backing of the medical profession,” he said.

“Instead, we ask the Home Office to ensure that age assessments are child-centred, not routine, and recognise the lack of certainty in ascertaining age.”

Refusal to consent ‘damages credibility’

Such methods could only be used with “appropriate consent”, meaning that of the claimant, their parent or guardian or someone else able to consent on their behalf – with this group being specified by the government in regulations.

However, the new clause also states that decision makers would need to take a refusal to consent, either by the person or their representative, as “damaging the age-disputed person’s credibility”.

BASW said it strongly opposed this, saying that refusing physical examinations should not have any bearing on a person’s credibility.

“Many people who come to the UK will have endured significant trauma including physical and sexual abuse and may have a deep distrust of medical professionals through their life experiences,” it said in a statement.

“Further subjecting them to invasive procedures is not an approach we can accept.”

In its briefing, the RMCC said: “This will basically force children and young people to undergo assessments that may be harmful.”

Standard of proof ‘too high’

The consortium also criticised the standard of proof written into the bill for determining age following assessment, which is the “balance of probabilities”.

This is the same standard as applied in the courts when assessing a claim for judicial review of a government decision on a person’s age. However, the tribunal that considers asylum appeals employs a lower standard of proof for whether a claimant is a child – that of “reasonable degree of likelihood”. However, unlike in judicial review cases, where there is no burden of proof, in tribunal cases, this falls upon the claimant.

In its briefing, the RMCC said balance of probabilities was too high a standard to apply, and that it would “significantly increase the risk of children being wrongly treated as adults”, given the complicated nature of assessing age.

The Scottish National Party’s shadow home affairs spokesperson, Stuart McDonald, a vocal critic of the bill, said there was “no evidence to justify any” of the proposals.

“The bill gives the home secretary huge powers to demand controversial and unreliable so-called ‘scientific’ methods of assessment, and to pressure young people into consenting to them by drawing adverse inferences if they do not,” he said.

“Furthermore, while in theory a national body could help support local authorities with their responsibilities, it seems more likely that the home secretary will instead use it as a means for demanding more and repeat assessments where she isn’t happy with what local authorities are saying, supplanting instead of complimenting their role.

A Home Office spokesperson said its proposals would “stop abuse of the system while supporting those in genuine need”.

“We cannot allow asylum seeking adults to claim to be children or children being wrongly treated as adults, both of which present significant safeguarding risks,” they said.

“Age assessments are challenging and we are taking a number of steps to improve them. This will widen the evidence base for social workers to consider when making assessments and lead to better informed decisions.”