Has the Children and Families Act 2014 delivered?

Lauren Gardner and Eleanor Suthern discuss The House of Lords Children and Families Act 2014 Committee’s report “Children and Families Act 2014: A failure of implementation”.

Why the report has been written

The post-legislative House of Lords scrutiny inquiry committee was appointed in January 2022 to investigate whether the Children and Families Act 2014 was fit for purpose in practice. Namely, whether the Act was achieving its desired aim of improving the lives of children and families, particularly the most vulnerable children and young people in society.

The inquiry considered written and oral evidence, from social workers, lawyers, children and others. Sarah Blackmore, joint head of chambers at Spire Barristers, was called to give evidence in April this year by the Lords Select Committee on the effectiveness and impact of the Act. Sarah is quoted in the report on the topic of Section 11 of the Act, which sets out the presumption of parental involvement in their children’s lives. Although some professionals giving evidence argued for the repealing of this presumption given the safeguarding issues for many children in the family courts, Sarah opined that while a stronger presumption in favour of parental involvement would put children at risk, Section 11 should not be repealed because it has not had a major impact either way. She is quoted at paragraph 163 that ‘“I am not sure that it [Section 11] has had a major impact on the family court and the way the court has always approached private law cases.” 202 Judges in Oxford shared this view that the presumption had not changed anything.’

What the report identified

The report identified several problems with the effectiveness of the Act and concluded that the Act has “ultimately failed in meaningfully improving the lives of children and young people”. The report focused on the following areas:

• Adoption
• Family Justice
• Parental leave and flexible working rights
• General themes found across the inquiry, namely: the lack of mental health support for children and young people, the need to respect the views of children in policymaking, the effectiveness of government and the value of post-legislative scrutiny.

What the report proposes

The report made many recommendations, briefly summarised as follows:

For the Government to:

• Publish an assessment of the impact of the funds spent on increasing early permanence placements and long-term strategy for promoting early permanency.
• Create a task force dedicated to addressing ethnic and racial disparities in the adoption system.
• Reinstate the statutory register on its original terms.
• Improve post-placement support for adopters and kinship carers including the expansion of the Adoption Support Fund.
• Support adoption agencies in developing and rolling-out a safe and appropriate national digital system for contact as a priority.
• Create a promotional campaign to increase take-up of the fund by those parenting under a Special Guardianship Order and renaming that fund to reflect that it is not limited to adopters.
• Continue the commitment to reduce delays by 2023 but the need to quantify the reduction they are seeking, alongside specific timescales.
• Improve collection and sharing of data on the family justice system.
• Consider findings of review of the presumption of parental involvement and make legislative or other changes necessary to ensure that children’s welfare is always put first.
• Consider the children’s views as they look to develop policies affecting them in the future, ensuring that their welfare is their paramount concern.

Other recommendations:

• Kinship carers to be identified and assessed alongside other options during pre-proceedings.
• More resources and more efficient use of resources to mitigate delay.
• Improved data gathering and sharing are needed to identify and tackle delays.
• Replacement of MIAMs by a universal voucher scheme for a general advice appointment for signposting to ADR mechanisms, including mediation.
• Initial hearings deciding how the voice of the child will be heard during the case.
• Review by the Family Justice Council of the approach taken for judges meeting children.
• Self-employed fathers/partners be given a right to statutory shared parental pay subject to the same conditions and at the same rate as directly employed fathers/partners. And a move to a dedicated 12-week paternity leave allowance (same as maternity rate) and making flexible working a day one right to request and encouraging businesses to advertise jobs flexibly from the outset.
• Kinship carers with a Special Guardianship Order be provided with the same rights to leave as adopters when a child is placed in their care to ensure parity of support.

Lauren Gardner and Eleanor Suthern are pupil barristers at Spire Barristers.

Sarah Blackmore, Spire’s Joint Head of Chambers, was called to give evidence as a leading practitioner in the field of Family Law and the author of the practitioner text Family Justice Reformed – Developments since the Children’s & Families Act 2014.