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.

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Councils and partner agencies are to be required to establish multi-agency child protection teams, under legislation to overhaul children’s social care.

The Children’s Wellbeing and Schools Bill would also allow for the regulation of agency work in children’s social care and the creation of a new type of placement in which a child could be deprived of liberty.

Other planned reforms include requiring authorities to offer families a family group decision making meeting before making a care or supervision order application, to enable the network around the child to discuss and make proposals regarding their welfare.

The proposals are largely those set out by the Department for Education (DfE) in a policy paper last month.

Multi-agency child protection teams

The creation of multi-agency child protection teams was a recommendation from the Child Safeguarding Practice Review Panel’s 2022 report into the murders of Arthur Labinjo-Hughes and Star Hobson.

That review found a “systemic flaw in the quality of multi-agency working”, with “an overreliance on single agency processes with superficial joint working and joint decision making”.

On the back of this report, and that of the Independent Review of Children’s Social Care, the previous government selected 10 areas to test the value of multi-agency child protection teams, alongside other measures, under the families first for children pathfinder. The measure in the Children’s Wellbeing and Schools Bill will be part of a national rollout of the pathfinder.

Under the bill, councils, chief officers of police and relevant NHS integrated care boards (ICB) must set up one or more multi-agency child protection teams for the relevant local authority area.

The teams’ composition and role

Each team would consist of at least one social worker and educational professional, put forward by the relevant director of children’s services, a health professional nominated by the relevant ICB and a police officer chosen by the chief of police.

The government will specify requirements for these roles, for example in relation to qualifications and experience, in regulations under the legislation. This is likely to include requirements for lead child protection practitioners, the specialist social workers who form part of the multi-agency teams being tested through the pathfinder.

The legislation states that the teams’ role would include supporting councils in carrying out their duty to investigate child protection concerns, under section 47 of the Children Act 1989, along with other duties prescribed in regulations.

However, based on the pathfinder, it is likely that the role of the multi-agency teams will be to carry out section 47 investigations and other core child protection functions.

What else is in the bill?

Other measures in the bill include:

• Enabling the government to regulate councils’ use of agency workers in children’s social care, which would cover both social worker and non-social worker roles. This would be based on rules brought into force in October 2024, which only cover social workers.
• Mandating councils to offer a ‘family group decision making’ meeting when they are seriously considering applying for a care or supervision order, to give families an opportunity to come together and make a proposal in response to concerns regarding the child’s welfare.
• Providing a statutory framework to authorise a deprivation of liberty for children who need it to keep them safe, in accommodation other than a secure children’s home, designed with the primary purpose of care and treatment.
• Enabling the government to require councils to join together regionally to carry out their functions for accommodating looked-after children. Such regional care co-operatives are currently being tested in two areas.
• Empowering Ofsted to subject parent companies to an improvement plan if any of their subsidiaries are suspected of failing to meet the required standards in two or more regulated services that they run, such as children’s homes.
• Enabling Ofsted to impose fines on companies for breaches of care standards, including for running unregistered children’s homes.
• Setting up a financial oversight regime, run by the DfE, for the largest and most significant providers of children’s social care services, which would require them to provide information to the DfE on their finances, including in relation to their sustainability.
• Giving the government the power, through regulations, to cap the profits of non-local authority providers of children’s homes or fostering agencies.
• Requiring local authorities to publish a local offer setting out their support for kinship families.
• Requiring councils to provide to eligible care leavers up to the age of 25 with support with finding and maintaining accommodation and accessing services where their welfare requires it
• Automatically including education and childcare agencies in multi-agency safeguarding arrangements.
• Making provision for the specification of a single unique identifier for each child, to aid information sharing between agencies.
• Extending the role of virtual school heads to promoting the educational achievement of children in need and children in kinship care on a statutory basis.
• Requiring councils to have and maintain children not in school registers and provide support to home-educating parents.
• Empowering local authorities to require that children subject to child protection processes attend school when school is in their best interests.

The government will legislate to create a new type of accommodation for children with complex needs in England who are at risk of being deprived of their liberty.

The placement type will be for children who may need to be deprived of their liberty at times, but will provide for restrictions to be increased and decreased according to need.

It will be distinct from secure children’s homes and not suitable for those who need to be placed in SCHs, which are specifically designed to restrict children’s liberty.

The pledge, announced in this week’s social care policy paper, is in response to the huge rise in the number of children made subject to deprivation of liberty (DoL) orders under the inherent jurisdiction of the High Court – its backstop power to protect vulnerable people.

The orders have been used in relation to children with needs including severe mental health issues, significant trauma, autism, learning disabilities or being subject to, or at risk of, criminal or sexual exploitation.

For many children, they have involved moving into unregistered placements, without Ofsted’s regulatory oversight, severe restrictions on their movement and access to technology and contact, constant supervision, often by multiple staff members, and experiences of restraint.

The rise in DoL numbers has been driven by a lack of appropriate placements to meet their needs, whether in open or secure children’s homes or specialist tier 4 child and adolescent mental health services (CAMHS), and a reported reluctance from registered providers to admit them.

A new placement type

The Department for Education (DfE) said there was a need for “new forms of provision” to address the “gap” in supply for  children currently subject to DoL orders.

Photo: IQoncept/Adobe Stock

It said it would amend legislation to enable councils to place children in a new type of accommodation, which could “respond more flexibly to their changing and fluctuating needs”, reducing restrictions when safe to do so, as well as providing “crucial therapeutic care”.

The legislation would set “clear criteria for when children may need to be deprived of liberty and mandatory review points to ensure that no child is deprived of liberty for longer than is required to keep them safe”.

Secure accommodation orders

The statutory framework for the new placement type will be distinct from secure accommodation orders, which provide the legal basis for councils to place looked-after children in SCHs.

Section 25 of the Children Act 1989 provides that children may only be so placed if:

1. They have a history of absconding, would abscond from non-secure accommodation and, if they absconded, would be likely to suffer significant harm, or
2. They would likely injure themselves or others if placed in non-secure accommodation.

Not a solution to shortages of secure home placements

The DfE said its proposed new accommodation type would be for children whose needs cannot be met in an SCH, which means it would not provide a solution to the severe shortages of secure home places.

Ofsted has previously said that 50 children are waiting for an SCH place at any one time, while research last year by the Nuffield Family Justice Observatory found that, in 10% of DoL applications, it was explicitly stated that a secure home placement would have been preferable, but was not available.

England currently has 13 SCHs, with new or replacement provision due to be developed in London and Lincolnshire.

Experiences of children subject to DoL orders

The proposal responds to a key recommendation from a DfE-commissioned report from the Children’s Commissioner for England, Rachel De Souza, which examined the experiences of 15 children with experience of DoL orders.

Children’s Commissioner for England Rachel de Souza (credit: Office of the Children’s Commissioner)

The report, also published this week, found that the children had experienced significant instability in the support they received, before being made subject to a DoL.

This included frequent changes of placement and social workers, with the lack of consistent relationships being to the detriment of their mental health.

They experienced further trauma from the experience of separation from family and friends, changes in caregivers, isolation, restrictions and restraints while under the DoL orders.

Also, most of the children reported having limited opportunities to have their voices heard and be involved in decisions while under the order.

Commissioner’s recommendation for new placement type

The commissioner recommended the the government establish a new statutory framework for deprivation of liberty in an Ofsted-registered home that was not an SCH. This should make clear that:

• Deprivation of liberty should only be authorised when it is necessary for children’s safety and welfare and not because of a shortage of appropriate accommodation.
• There should be judicial oversight for any deprivation of liberty and any authorisation must be reviewed every three months.
• The child should automatically be a party to any deprivation of liberty proceedings, meaning they are represented by a Cafcass guardian.
• Children should have the opportunity to share their views with the judge as part of the deprivation of liberty process and should be supported to do so in a way that is comfortable for them.
• The education secretary and Ofsted must be notified of any deprivation of liberty application where the child is not in a registered home.
• Children deprived of their liberty should have access to advocacy, including non-instructed advocacy as needed.

‘Far fewer should be deprived of liberty’

However, the commissioner also called for action to ensure far fewer children were deprived of their liberty. This should involve “radical investment in creating new and safe places for children to live in registered children’s homes which can provide safe accommodation and therapeutic support for children living with trauma and at risk of harm”.

On this point, the DfE said that, in partnership with NHS England, it would pilot a new, community-based approach to delivering “specialist care and accommodation for children who have complex needs”, with input from social care, health, education and justice professionals.

This will be tested by the South East Regional Care Co-operative, one of two areas piloting the regionalised commissioning of care placements.

The DfE said the approach “has the potential to reduce both local authority reliance on costly unregistered placements and immediate and lifetime costs to the health and justice systems”.

Ofsted gives backing in principle

Ofsted’s national director for social care, Yvette Stanley, said the regulator backed the plan for a new placement type “in principle”, but warned that “how it is implemented will be critical to its success”.

Yvette Stanley, Ofsted’s national director for social care

“Any deprivation must be the least restrictive option possible and support children’s transitions to their next stage,” she added.

Stanley also said that Ofsted was looking to make changes to its social care common inspection framework, which governs its regulation of sector providers.

This was with a view to “[removing] any barriers that Ofsted may create, perceived or otherwise, to providers working with children with multiple and complex needs”.

“Chronic” Deprivation of Liberty Safeguards (DoLS) backlogs are leaving many people without the human rights protections the system was designed to provide, the Care Quality Commission has warned.

People will continue to be failed without “urgent action” to overhaul a system that “has needed reform for over 10 years”, the CQC said, in a damning verdict on DoLS, delivered in its annual State of Care report, published last week.

The regulator found councils lacked sufficient assessors to deal with the volume of cases they received from care homes and hospitals, but also identified a “wide variation” in how authorities managed applications and in backlog levels.

It also said that a lack of knowledge of the DoLS, and the wider Mental Capacity Act 2005 (MCA), among provider staff was leading to unnecessary DoLS applications and overly restrictive practices in relation to people needing care and support.

A mounting DoLS caseload

The report comes ten years after a House of Lords committee dubbed the DoLS “not fit for purpose” on the grounds that thousands of people were being unlawfully deprived of their liberty without safeguards. At the time, councils in England were receiving about 13,000 applications a year.

In the same month as the committee’s report, the Supreme Court’s landmark Cheshire West judgment widened the definition of a deprivation of liberty, resulting in a tenfold rise in the number of DoLS cases from 2013-14 and 2014-15.

Application numbers have continued to mount since, reaching a record 332,455 in 2023-24. While councils have vastly increased the number of cases processed over the same time – with a record 323,870 completed in 2023-24 – this has not stopped a huge backlog emerging, with 123,790 cases left incomplete as of 31 March 2024.

Planned reform stalled

Despite legislation to replace the DoLS with a more streamlined system – the Liberty Protection Safeguards – passing into law in 2019, the Conservatives failed to implement this, while Labour has given no indication, as yet, that it will do so.

“At present, it is unclear when or if the LPS reforms will be implemented,” said the CQC. “We are keen to establish a dialogue with the new government about this.”

The CQC said the issues raised by the Lords committee in 2014 had been “exacerbated by the stark increase in the volume of applications” since.

Like several previous reports, it highlighted that, because of the backlogs, many people were being deprived of their liberty unlawfully, without the safeguards required by the European Convention on Human Rights that are supposed to be provided by DoLS.

Lack of assessors ‘a primary barrier to performance’

Based on a survey of the National DoLS Leads Network, the CQC heard “widespread concern” that councils were “often significantly under-resourced” to deal with caseloads, as their funding had not kept pace with the increasing number of people requiring assessments.

It found that a lack of assessors, many of whom are social workers working as best interests assessors (BIAs), was a “primary barrier to performance”. Many councils were struggling to recruit and several were “relying significantly on independent assessors to manage the volume of applications”.

Some respondents also reported high turnover, describing DoLS as a practice area in which practitioners either thrived or, more often, left the service.

‘Wide variation’ in local authority approach

The CQC found significant differences in backlog levels, driven by factors including budgets, demography and the numbers of care homes and hospitals in an area, but also said there was also a “wide variation” in how councils managed applications.

Many were making use of the Association of Directors of Adult Social Services’ (ADASS) screening tool to prioritise applications. This grades applications into higher, medium or lower priority, based on factors such as whether the person was actively objecting to their arrangements, the level of restraint or sedation they were experiencing and whether they were in a settled placement.

However, the CQC said it was concerned that certain groups, such as people with dementia or learning disabilities, risked facing disproportionate levels of delay due to being classified as lower priority.

The tool was also reliant on councils receiving detailed, accurate applications from care homes or hospitals, which some authorities were not confident that they were given.

Lack of DoLS knowledge among provider staff

Councils also told the CQC that a lack of knowledge among provider staff was an ongoing factor contributing to delay, either because of unnecessary applications being made or authorities having to go back to the provider to seek further information.

“This risks people who need the safeguards getting lost in the high volume of referrals, or not having an application made when they need one,” the regulator said.

The CQC saw examples of applications that did not include mental capacity assessments, did not specify what and why specific restrictions were needed and failed to acknowledge less obvious restrictions that were already being implemented, such as sensor movement trackers or bed rails.

There was a “misconception among some providers that a DoLS application equated to an authorisation being in place”, while in a few services, providers were applying blanket restrictions that deprived all residents of liberty, despite this not being necessary for everyone.

Poor understanding of MCA

The CQC also found issues with providers’ understanding of the MCA more generally. For examples, in some services, there were cases of organisations assuming that, because a person lacked capacity to make one decision, they were unable to make all decisions, contrary to the requirement for capacity assessments to be time- and decision-specific.

In some services for people with learning disabilities or autistic people, there was a lack of consideration of the least restrictive option when making decisions, contrary to the fifth principle of the MCA.

Analysis of 139 CQC decisions to refuse providers’ applications to register, or to impose conditions on registrations, found 66 related to the MCA, nearly all of which were due to a lack of knowledge of the act.

Other issues raised in the report included poor communication with those subject to a DoLS application or their family members, including because of lack of interpreting services or tools to support non-verbal communication.

Reform urgently needed, says CQC

However, despite the many practice issues it raised, the CQC concluded by calling for urgent reform to the DoLS.

“The DoLS system has needed reform for over 10 years,” it said.

“Unless there is substantial intervention, we are concerned that these challenges will continue, leaving people at the heart of this process without the key human rights safeguards that the DoLS system was intended to offer.”

Care proceedings are being completed more quickly in England and Wales, but their average duration still far exceeds the 26-week statutory target, official figures have shown.

Cases where councils applied for a care or supervision orders that were completed in April to June 2024 took an average of 41.2 weeks, down from a recent high of 44.8 weeks in January to March 2023, when just a quarter of cases were disposed of within 26 weeks.

This figure has risen since but, as of April to June 2024, just over two-thirds of cases (68%) exceeded the statutory limit, according to the Ministry of Justice’s latest quarterly statistics on the family courts system.

The data also showed the number of applications for High Court orders to deprive children of their liberty – often in unregistered placements – were far outstripping those for orders to place children in secure homes in 2024, with the latter having declined significantly since 2021.

Progress against the 26-week target

The Children and Families Act 2014 introduced the 26-week limit for courts to dispose of applications for care or supervision orders, in order to provide certainty for children. While courts may extend the timetable, this should not be routine, and they must consider the impact on the welfare of the child in doing so.

Case durations fell following the introduction of the law, reaching 26.2 weeks on average for those completed in October to December 2016.

However, they then rose steadily on the back of a spike in application numbers from 2016-18 before increasingly sharply during the pandemic as the family courts struggled to progress cases.

Relaunch of public law outline to tackle length of proceedings

In January 2023, the president of the family division of the High Court, Sir Andrew McFarlane, “relaunched” the public law outline (the PLO), the procedures governing care proceedings, to tackle the duration of proceedings.

This involved minimising the use of experts witnesses, keeping the number of hearings to three per case and limiting the court’s decision-making to whether the care or supervision order threshold was met, permanence provisions, contact arrangements and final orders.

Since then, average case lengths have fallen steadily. However, they remain far off the 26-week target, as the MoJ figures show.

‘Unacceptable backlogs’ remain

At the end of July 2024, Sir Andrew acknowledged that progress had been made but said that it had been “slow”, and that “unacceptable backlogs” remained.

Sir Andrew said he planned to “reinvigorate” the PLO relaunch this autumn, including through setting targets for improvement.

Sir Andrew McFarlane, president of the family division of the High Court

These would include improving the use of the issues resolution hearing (IRH), the second hearing in a case. IRHs are designed to identify and narrow remaining issues in the case and, potentially, resolve them, avoiding the need for a final hearing.

The president said he had been told that, in some areas, less than 5% of cases were resolved, or substantially resolved, at the IRH, “with the result that 95% of cases go on to a final hearing which may be listed many months hence”.

He linked this to judges sometimes having four or five IRHs listed in a single day, preventing them from focusing on individual cases.

Squeezing issues resolution hearings ‘a totally false economy’

“To undertake an IRH, a judge must be given sufficient time to prepare the case as if preparing for the final hearing and the listing should be sufficient to accommodate the hearing of short evidence if required,” he added.

“Not to allocate time at the IRH stage is a totally false economy given the delay that will then follow, no doubt with further hearings, and the listing of a much longer final hearing in due course if the case remains contested.”

Sir Andrew added that some court areas may be “struggling to achieve the change of local culture that is required by the PLO relaunch”.

Targets for speeding up proceedings

In April this year, the Family Justice Board, the partnership of government, council leaders, Cafcass and the judiciary that oversees the system, set the following targets for speeding up proceedings by 31 March 2025:

• No open public law case should be taking longer than 100 weeks.
• Care and supervision cases should be taking an average of 32 weeks.
• At least 81% of all new cases should be completed within 26 weeks.

In response to the MoJ data, the Association of Directors of Children’s Services said progress towards the 26-week target likely reflected the impact of the PLO relaunch and improved pre-proceedings work by councils, among other factors.

The chair of the ADCS’s families, communities and young people policy committee, Helen Lincoln, added: “Reducing unnecessary drift and delay in the system is important, however, our main aim should always be meeting children’s needs, even if this falls outside the 26-week limit.”

DoL order applications far outstripping those for secure orders

The MoJ figures also revealed there had been five times as many applications to deprive children of their liberty under the High Court’s inherent jurisdiction (590) as there had been applications for a secure accommodation orders (109) in the first half of 2024.

Deprivation of liberty orders, previously rare, have become commonplace in recent years as councils have struggled to find appropriate placements for children with very complex needs.

However, they often involve placements in unregistered settings – which are not monitored by Ofsted – though in such cases the court usually requires the provider to register the service rapidly.

Lack of secure children’s homes

One of the reasons cited for the rise of DoL orders has been the severe shortage of capacity in secure children’s homes, whose functions include accommodating children under secure orders. These are for children with a history of absconding who are likely to suffer significant harm if they abscond again.

The number of children accommodated in SCHs in England and Wales on secure orders fell from 96 to 72 from 2018-24, according to official data.

This is despite the number of available places in homes being relatively stable during that time, numbering 220 in both 2018 and 2024, with about 105 places contracted to the MoJ for use for young people who have committed offences, during this time.

‘Demand far outstrips supply’ of children’s home beds

The MoJ family courts data revealed a significant drop in the number of secure orders applied for by councils in recent years, from 404 in 2021 to 319 in 2023. Were current application rates to be maintained in 2024, the yearly total would be about 218.

For ADCS, Lincoln said: “Secure children’s homes offer intensive support to our most vulnerable children and young people at times of extreme crisis or distress, but many local authorities report major difficulties sourcing a placement.

“Demand for a bed far outstrips supply, despite local authorities only making a handful of placements a year which may be a reason for the decline in the number of applications being made.”

She added that applications for DoL orders were always a “last resort” to “manage complex mental health presentation and high-risk behaviours” due to lack of secure beds and inpatient mental health provision for young people.

Children placed in ‘illegal’ provision

The MoJ figures also showed that, of DoL applications made in July to September 2023, final orders had been made in 269 cases. Of these, 67 children were still subject to an order over a year after their first order was made, a point highlighted by sector research body the Nuffield Family Justice Observatory.

Its director, Lisa Harker, said: “Deprivation of liberty orders were only ever meant to be a last resort used, for example, when a place in a secure children’s home was not available for a child a risk of imminent harm. Now they vastly outnumber applications for registered secure accommodation.

“Around half of children on deprivation of liberty orders are being placed in unregulated (and illegal) provision – and this latest data shows for the first time that children are often trapped in these placements, with a quarter still subject to a DoL order 12 months later.”

The number of Deprivation of Liberty Safeguards (DoLS) referrals hit a new high in 2023-24 but practitioners managed to cut backlogs, official figures have shown.

Care homes and hospitals made 332,455 applications to deprive a person of liberty for their own protection last year, up 11% on the figure for 2022-23, according to NHS England’s annual DoLS data.

Reduction in DoLS backlogs and timeframes

However, despite this, council DoLS practitioners managed to curb both case backlogs and timeframes on the back of a 12% rise in the number of applications they processed during 2023-24, to a record 323,870.

While the average duration of cases remained well above the 21-day statutory timeframe for standard DoLS applications, it fell from 156 to 144 days from 2022-23 to 2023-24.

And the number of uncompleted applications at 31 March 2024 fell by 2% year on year, from 126,100 to 123,790.

The figures showed that DoLS practitioners processed more than three times as many cases in 2023-24 compared with 2015-16 (105,055), during which time the number of referrals less than doubled.

As has been the case since 2019-20, more completed applications were not granted in 2023-24 (181,940) than granted (141,925).

Uncompleted assessments

However, for the first time, the data demonstrated that, in the vast majority of cases where an authorisation was not granted, the application was closed without an assessment being started (162,655) or completed (15,270). Where an assessment was completed – in 145,945 cases – 97% resulted in a DoLS authorisation.

In cases that were closed without an assessment being carried out, this was likely to be because the person’s circumstances had changed or they had died before the process could be started.

Unsurprisingly, these cases were concentrated in acute hospitals, where DoLS authorisations are required relatively briefly during a treatment episode.

Of 100,550 applications made by acute hospitals in 2022-23, just 4,645 resulted in a completed assessment.

Under the Court of Appeal’s judgment in R (Ferreira) v HM Senior Coroner for Inner South London [2017], there is no requirement for a DoLS authorisation in cases where a person is receiving life-saving treatment that did not differ from what would be given to a person without a mental health problem.

By David Jones*

“In my time I’ve seen some quite frankly astonishing things, those that have made my heart soar and others that have brought me to the edge of despair. That the former have outnumbered the latter is testament to the generosity and resilience of spirit of both kids and staff, which have prevailed in some often testing environments.”

A qualified social worker who, over 22 years, has been the manager of three council-run residential children’s homes, Dorothy* is about to retire at 62.

While she has long had serious concerns about a care system that was never perfect, she says it is fast becoming one that she no longer recognises, because of the decline of the child-centred ethos that has inspired her and many others.

Private equity and prioritising profit

“A major change is the proliferation of private equity-run homes, situated in cheaper and more deprived areas of the country,” she says. “These are often hundreds of miles away from the child’s family, and the priority is profit over care.

“Another consequence of cash-strapped councils is the placing of young people in budget hotels and other illegal and unregulated settings, none of which are registered with Ofsted.

“This in turn leaves vulnerable youngsters at risk of being groomed by county lines drugs gangs. I appreciate that local authority finances are a mess, but the lack of political will to confront these issues is scandalous.”

Criticism of unregulated care ban

The rise in the number of unregulated placements prompted the government to ban them for under-16s in 2021, while creating a system of regulation for remaining provision for 16- and 17-year-olds in care.

However, providers of such supported accommodation were not required to provide young people with care, only support.

“So, the government has essentially allowed local authorities to put these kids in places without any adult supervision,” says Dorothy “Who could have imagined that traumatised young people would ever be treated like this?”

Dorothy’s hope is that a new government will address this.

Celebrate those who’ve inspired you

For our 50th anniversary, we’re expanding our My Brilliant Colleague series to include anyone who has inspired you in your career – whether current or former colleagues, managers, students, lecturers, mentors or prominent past or present sector figures whom you have admired from afar.

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Nominate your colleague or social work inspiration by either:

• Filling in our nominations form with a letter or a few paragraphs (100-250 words) explaining how and why the person has inspired you.
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If you have any questions, email our community journalist, Anastasia Koutsounia, at anastasia.koutsounia@markallengroup.com

Deprivation of liberty

Equally shocking is the increasing use of deprivation of liberty orders on children. A draconian measure, only to be used as a last resort, they are now becoming commonplace.

“This is outrageous and evidenced by judges voicing their frustration. Because alternative provision does not exist, kids with complex needs are being locked up in high security mental health hospitals. And the judges’ hands are tied.”

Having started working with teenagers when she was 28, Dorothy became a home manager for the same age group when she was 40.

After eight years, she moved to a post as manager looking after youngsters aged eight to 12. Four years later she moved to her final position, again working with teenagers, where she has spent the past 10 years.

A proper functioning care system, comprising dedicated staff and where the child’s voice is paramount, can work wonders, she insists.

Forging connections with children

“The younger children were an absolute joy, but eight and nine-year-olds can also present with some very challenging behaviours,” says Dorothy. “Often, they struggle to understand why they are in care, and can make little or no sense of some very chaotic backgrounds.

“I remember one occasion when a nine-year-old boy became uncontrollably upset after his auntie missed a visit. He threw books and toys out of windows, screaming that he was going to run away and kill himself.

“A member of staff bided her time, talking gently to the boy before approaching and hugging him. She spent the remaining three hours of her shift talking and listening to him, making sure he became settled, which he did.

“Of course it’s heartbreaking to deal with, but when you see a real connection being reinforced in such circumstances, it does show how sensitivity and understanding play a crucial role in this work.”

Conscious of the stigma of being looked-after children, they are quick to spot a less motivated staff member. “Kids will tell a care worker that they are ‘in the wrong job’ or ‘only doing it for the money.’ Such staff are always found out by young people.”

The ‘grossly inappropriate behaviour’ of some staff

A small minority of staff can also display grossly inappropriate behaviour, she adds.

“When I joined my third home, I noticed at lunch on my first day, that staff were using different cutlery and plates to the children. When I invited the deputy manager into my office to explain what on earth was going on, he said staff brought their own from home, not wanting to use plates the young people may have urinated or defecated on.

“I couldn’t believe what I was hearing. But this area of work can attract people who simply aren’t emotionally or intellectually invested in what we are trying so hard to do. I still wonder how they pass an interview, and then aren’t weeded out more quickly.”

Reprimanded straight after lunch, the staff members involved voluntarily left the service within the next six months.

On another occasion, a 14-year-old girl was being verbally abusive towards a male member of staff, whose responded by forcibly grabbing the girl’s arms.

“I was just outside with another member of staff, when we suddenly heard raised voices,” Dorothy recalls. “When we entered the room, we saw the staff member shaking the girl so aggressively that a hairpiece she was wearing actually flew off her head.

“At this point she became hysterical and ran to her home. It was the last thing that bully ever did in the home.”

Of course, with the best will in the world, some young people’s experience of residential care is a miserable one. And Dorothy says that this is understandable.

“Missing loved ones and friends, trying to function in an environment that is so alien, is simply too much for some youngsters, who feel totally alone and adrift. But I’d still like to think they know we care and are there for them.

‘Warts and all, the ideal form of care’

“It can make you feel impotent of course, but I remain convinced that the model of residential child care is the best we have. It can help stabilise and give structure to young lives, aspiring as it does to offer a family home life in every sense, warts and all. In this respect, it is the ideal form of care for looked-after children.”

In terms of outcomes, it remains the case that care leavers who have contacted Dorothy to let her know they are doing well, or even thriving, are small in number. Learning that someone has settled down, become a parent or is enjoying rewarding employment has, however, brought her to tears.

“I still wonder how, after all they’ve been through, they managed that? They deserve a medal. Of course we know what the statistics show, that the majority of care leavers struggle in later life. But as counter-intuitive as this might sound, it doesn’t necessarily indicate that the system is fatally flawed. It can’t be a cure-all as that simply isn’t realistic.”

‘A vocation, full of the best moments and the saddest’

Dorothy admits that she will miss what has been “a vocation, a challenging and rewarding experience, full of the best moments and some of the saddest”. But she doesn’t apologise for repeating her fears for the future. A core factor driving some English councils to bankruptcy, children’s social care is seeing more young people needing its services and more being failed.

“The only time I came close to resigning, was when I was powerless to prevent a 12-year-old boy being moved 200 miles to a private residential setting. Such a cruel and heartless policy is the wrong direction of travel. And it’s a sign of the times.”

Will a Labour government change the landscape? “It says it has inherited a massive financial hole, so that hardly augurs well. And within such constraints, I don’t anticipate the environments of looked-after children to suddenly become a priority. It’s difficult to feel anything but pessimism and anger, to be honest.”

*The author is a freelance journalist and former residential child car worker. His name has been changed, as has that of the manager interviewed.

The number of court applications in England regarding deprivation of liberty under the Mental Capacity Act 2005 (MCA) has reached a record high, show Minister of Justice (MoJ) figures.

The Court of Protection (CoP) received 2,022 such applications from January to March 2024, the highest figure recorded in the MoJ’s family justice statistics series and a third higher than the quarterly average since April 2020 (1,526).

The cases were a mixture of challenges to Deprivation of Liberty Safeguards authorisations and applications from councils and other bodies to confine people not covered by DoLS: 16- and 17-year-olds and adults not placed in care homes or hospitals, for example, those in supported living or shared lives settings.

The biggest rise in case numbers concerned so-called Re X applications, which provide a streamlined procedure for the CoP to authorise deprivations of liberty, outside the scope of DoLS, where the case is not contentious.

The number of these in the first quarter of 2024, 1,211, was the second highest quarterly total ever and 27% higher than the average for the past four years.

The MoJ data classified 158 applications in January to March 2024 as being brought under section 16 of the MCA, compared with an average of 117 over the past four years. These are likely be cases that are not suitable for the Re X process, for example, where the person is objecting to their placement or is aged 16 or 17 (see box above).

High numbers of DoLS challenges

Meanwhile, there was a record number of applications to vary or terminate DoLS authorisations, with 653 such cases from January to March 2024, 43% above the quarterly average for the past four years.

These applications are brought by the person subject to the authorisation or, on their behalf, by their relevant person’s representative (RPR), and are eligible for legal aid.

They can challenge whether the person meets the qualifying requirements for DoLS, the duration of the authorisation, its purpose and the conditions placed on it.

The number of such challenges, which must be responded to by councils, has been trending upwards over the past few years, with a quarterly average of 447.5 in 2021, 475.8 in 2022 and 512 in 2023.

This is likely, in part, to reflect the year-on-year increases in the number of people subject to DoLS in England, with 126.995 authorisations granted in 2022-23 up from 105,225 in 2020-21.

There was also a spike in the number of deprivation of liberty-related orders issued by the CoP in response to these applications, with 1,448 granted in the first quarter of 2024, compared with a quarterly average of 1,319 in 2023.

What about the Liberty Protection Safeguards?

The record number of CoP applications comes with DoLS case numbers also being at record levels, exacerbating already severe pressures on councils and the rest of the social care and health system.

To address such pressures, the government had legislated in 2019 to implement a new system – the Liberty Protection Safeguards (LPS) – designed to provide a streamlined alternative to both DoLS and CoP-authorised deprivations of liberty.

However, its implementation has been repeatedly delayed and, last year, it was shelved until beyond the forthcoming election. Ahead of polling day this week, neither the Labour nor Conservative parties have set out plans to implement LPS should they win.

By Lorraine Currie

The number of Deprivation of Liberty Safeguards (DoLS) cases handled by English councils hit another record high in 2022-23.

Though councils completed a record 289,150 applications, the backlog grew by 2%, to 126,000, and the average duration of completed cases increased from 153 to 156, year on year.

At the same time, there is no current prospect of the Liberty Protection Safeguards (LPS) being implemented, meaning the sector will not be able to make use of the streamlining of the process that this would entail.

New DoLS prioritisation tool

Against this backdrop, the Association of Directors of Adult Social Services (ADASS) has adopted a new tool to help councils prioritise DoLS applications that was developed by West Midlands ADASS.

Although ADASS has kindly put my name on the bottom, this has been a huge collaboration, involving colleagues across the region and in ADASS nationally and from the National DoLS Leads group.

The original ADASS prioritisation tool was developed by a taskforce very soon after the 2014 Cheshire West judgment, when we still didn’t really know the full extent of its impact but we knew there was an impact.

The use of the original tool very easily results in almost every referral being red (or high priority). This had led to councils having to further triage red cases and develop more complex tools.

Changes related to physical restraint

The new priority tool is in response to that. Most of the key areas which appeared as red in the original tool are still present but tightened up.

For example, the original tool had ‘physical restraint used regularly’ in the red category. However, physical restraint is allowed under the Mental Capacity Act 2005 (MCA) alone (sections 5 and 6), so of itself it does not necessarily mean that a deprivation of liberty is occurring.

So, the new priority tool expands the concept to ‘excessive physical restraint which goes beyond what is allowed under MCA’.

Another oversimplified area in the red category of the original tool was ‘attempts to leave’. The new priority tool tightens this up to ‘meaningful, successive attempts to leave’.

No more automatic priority for hospitals

The new priority tool has removed the concept of setting specific priority. In the original, tool acute and psychiatric hospitals were automatically given high priority.

This has now changed so that high priority is given to acute hospital referrals where additional factors – highlighted in the tool – are present and these cannot be managed, even in the short term.

In psychiatric hospital settings, high priority will now be given when it is ‘a psychiatric setting where the person has been assessed to not meet the criteria for Mental Health Act detention but there is disagreement as to whether this decision is appropriate’.

Some elements of the old priority tool have been removed completely from the red section.

Removal of elements that apply to all

These are things which over time have meant they applied to everyone, for example, ‘continuous 1:1 care’ and ‘confined to a place for a non-negligible period of time’.

These are features to be explored in arriving at a decision as to whether a deprivation of liberty is occurring and which, when ticked by the person making the referral, can result in a case being deemed high priority with inadequate information.

Amber (medium priority) is now applied to situations where the MCA can and should be relied on, particularly in the short term.

Green (lower priority) represents those situations where we know that the Article 5 protection is needed but it is unlikely (on the information provided) to change the care plan in any substantive way. Even though there may be a delay in considering these cases, the process of two assessors considering the person’s situation provides the person with safeguards against arbitrary detention.

Dealing with DoLS renewals 

Many councils vary in their response, or their ability to respond, to DoLS renewals and the original ADASS tool had renewals as high priority.

Some councils are so overwhelmed with new applications that they cannot prioritise renewals. In recognition of this difference, renewals have been taken out of the red category in the new tool, but further guidance is given about the need to risk assess renewals as they represent ‘known’ deprivations of liberty.

The main aim of this new prioritisation tool is to triage and prioritise cases but, in doing so, to highlight the fact that different responses are needed to some requests for DoLS. It is not a one size fits all.

The differing needs of those subject to DoLS

For some people (possibly as many as 80%,) DoLS is a necessary legal protection, one which prevents arbitrary detention, but nothing substantive changes as a result.

These are people who need a periodic check on their situation. But it doesn’t need to be as onerous as for those people who require substantive protection where lots may change as a result of the assessments and the intervention.

WMADASS has also reviewed and updated the forms to administer each stage of the DoLS process, produced new guidance to the forms and developed a suggested standard operating procedure.

The standard operating model is an attempt to draw together all the proportionate measures being proposed in the West Midlands and the new tools and forms, to hopefully realise efficiencies that will help cut backlogs.

It is, however, written in the context of the region having 14 very different councils, with different existing models, different budgetary constraints, different staffing models and different social care system providers.

Making the DoLS process more efficient 

It is our hope that by adopting some or all the measures proposed, we will see efficiencies in the following ways:

1. Electronic or web-based forms: forms that communicate with adult social care systems, go directly where they need to go and eliminate major errors by managing authorities result in a ‘right first time’ approach and are much more efficient.
2. Efficient fully staffed administrative support: admin staff are key to DoLS and are highly skilled in its processes. They can be utilised for some tasks which best interests assessors (BIAs) may currently be doing. Careful review of processes might free up BIA time, which in turn means they are able to complete more assessments.
3. Effective systems for identifying renewals: having a system which identifies renewals in advance means that (at least once) all six assessments can be reused with no further assessments required. This means a second period can be authorised very quickly and easily.
4. Use of pragmatic assessments on renewal: even where the use of six equivalent assessments isn’t possible, shorter more proportionate assessments can be completed by both BIAs and mental health assessors on renewal, directing these skilled individuals appropriately.
5. Completion of person-centred assessments that provide analysis, reasoning and evidence-based conclusions rather than narrative: the changes we have made to form 3 result in a more analytical assessment rather than a narrative that is often cut and pasted several times into the current assessment’s differing boxes. This makes for confusing reading when families receive this. We are moving to a report which contains all the key elements but which is simpler to read and easier to complete.
6. An efficient authorisation process: we have returned to basics and examined what must be done rather than continue with what has always been done. We have returned forms to the original 2009 state and removed the need for written scrutiny by the person authorising.

Making best use of professional resource

Ultimately, it is the two assessors who are the highly skilled resource in DoLS. It is key that we have efficient systems and make the best use of these two professionals.

A proportionate assessment which addresses all it needs to in order to ensure Article 5 compliance need not be long. Some circumstances require complex assessments but, even then, the professional task is the gathering in of this detail and weighing it to arrive at a conclusion.

This doesn’t mean every element needs to be transcribed in the best interests assessor report. Is it really necessary to state that, ‘John was sitting in a comfy high-backed chair in the lounge’, ‘Freda used to keep a variety of animals but especially liked goldfish’ or that ‘Helen enjoys West End musicals her favourite is Les Misérables’?

Given that the greatest challenge currently is a backlog of assessments, councils must examine their processes and interrogate their practices against the potential risks of increasing backlogs; and, without compromising quality, they must maximise efficiency so that everyone who needs the protection of DoLS will get it.

Lorraine Currie is associate for MCA/DoLS at West Midlands ADASS

The Mental Capacity Act 2005 is a critical piece of legislation, employed every day by social care practitioners to help people aged 16 and over make decisions about their lives or, where they cannot, ensure decisions made about them are in their best interests.

But with case law and practice contexts continuing to evolve, staying up to date with the MCA is vital to ensuring legal literacy in social work and occupational therapy.

Following a highly successful event in Manchester, Community Care is bringing its Mental Capacity Masterclass to London, on 10 July 2024, so that more professionals can increase their confidence and capability when using the act.

Book your place now

Leading mental capacity lawyer, and Community Care Inform legal editor, Tim Spencer-Lane will open the day with an update on the latest MCA case law.

Handling complex cases

He will also provide guidance on handling cases involving complex capacity assessments and best interests decisions.

Tim will be followed by 39 Essex Chambers barrister and legal trainer Neil Allen, who will deliver a session on the application of the act to hoarding cases.

Neil will draw upon the judgment in AC and GC (Capacity: Hoarding: Best interests) [2022] EWCOP 39, the first Court of Protection ruling on hoarding, in which he appeared.

He will cover, among other things, the relevant information for the purposes of a capacity assessment when it comes to a person making decisions about their items and belongings, and what happens when the right to private and family life (Article 8) under the European Convention of Human Rights is engaged.

Executive functioning difficulties

Neil will also deliver the next session, on the challenge of conducting capacity assessments of people with executive functioning difficulties. In such cases, a person may appear to have capacity to make a decision but may not, in practice, be able to carry the decision out.

He will highlight the importance of using real-world observations, in some contexts, and focusing on the person’s ability to use and weigh information as part of the capacity assessment.

After lunch, Ben Troke, author of A Practical Guide to the Law on Deprivation of Liberty (Law Brief Publishing), will examine the state of the law on deprivation of liberty.

Ben, who is a partner at the firm Weightmans, will look at how to understand deprivations of liberty in context and the importance of focusing on a person’s rights to private and family life, as well as to liberty.

The final session will be on capacity and consent to sexual relations and marriage, with a speaker due to be confirmed shortly.