Kids Company – a symptom of system failure for children in need

Charities deliver some of the most innovative and highest quality services to children and families. But we can’t have charities taking on the responsibility for ensuring children’s needs are met – for the simple reason that it’s 2015, not 1890.

That responsibility must sit with statutory bodies, in particular local authority children’s services and the local NHS in the form of the new clinical commissioning groups. Yet the reality is that these bodies are overwhelmed and are unable to meet a fraction of the needs of the children for whom they are responsible. My colleagues who wrote this letter to the Guardian are plainly right that it is ‘pure fantasy’ that with the closure of Kids Company the statutory bodies will suddenly be able to meet these children’s needs.

It’s now 25 years since the Children Act 1989 (‘CA 1989’) came into force. It would therefore be reasonable to assume that we would have a secure legal duty which would require the state to ensure that the additional needs of children are met. Yet this simply isn’t the case; in fact, the majority of children who require extra help do not have an enforceable right to this help.

Part III of the CA 1989 is headed ‘Local authority support for children and families’. It begins with section 17, titled ‘Provision of services for children in need, their families and others’.

So to understand what section 17 does we need to know who ‘children in need’ are – and the definition is in sub-section 10. There are three sub-groups of children in need. One of these groups is ‘disabled’ children. The other two groups are:

  • children who are ‘unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision…of services by a local authority under this Part’; and
  • children whose ‘health or development is likely to be significantly impaired, or further impaired, without the provision…of such services’.

So children are ‘in need’, in short, if they need additional help from their local authority to safeguard or promote their welfare. This is a low threshold and most if not all of the children previously helped by Kids Company would meet it.

So far so good. The problem arises when we look at what it is said local authorities must do for children in need. Sub-section 17(1) reads:

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

So local authorities have to provide ‘a range and level of services’ for children in need. But does this give an individual child a right to a service? By a majority of 3-2 the House of Lords in R (G) v Barnet said not. At para 91, Lord Hope held that section 17(1) ‘sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority’s area in general’. The contrast here is with a ‘specific’ duty, which is owed to individuals and gives those individuals an enforceable legal right to whatever it is that the duty mandates.

So the position is clear. Following the Barnet case, although there is a duty to assess the needs of children in need there is ‘not…a duty to provide the assessed services’ for any individual child; see Lord Justice Munby in R (VC) v Newcastle at para 21.

In the Barnet case, Lord Nicholls (who was in the minority) said that the majority’s interpretation of section 17 made it ‘a poor sort of additional general duty’ (para 28). I would go further; the absence of a specific right to services means the statutory scheme for children in need is not fit for purpose.

What does this mean in practice? It means that local authorities must have services and support available for children in need generally in their area. Some children in need must be able to access those services and support. The decision as to which children are supported must be made rationally, reasonably and fairly. However local authorities will be entitled to refuse to meet the assessed needs of some children in need, including on resource grounds.

Section 17 is not the end of the legal story in relation to the children previously helped by Kids Company. For example:

  • ‘Disabled’ children (including children with learning disabilities and mental health conditions) have a specific right to services under section 2 of the Chronically Sick and Disabled Persons Act 1970, which I have written about here and here.
  • Children who do not have a parental figure who can provide them with suitable accommodation and / or care must be accommodated by the local authority under section 20 of the Children Act 1989. These children then become ‘looked after’ by the local authority in the same way as children in care and have a specific right to services and support to safeguard and promote their welfare. The resource consequences of this must be why, more than six years after the landmark Southwark judgment, we still see local authorities trying to avoid their duties under section 20 by reference to less onerous statutory obligations.
  • Where a child is suffering or is likely to suffer ‘significant harm’ then the local authority must investigate under section 47 of the CA 1989 and take appropriate action, which may include steps to take the child into care.
  • Section 11 of the Children Act 2004 requires local authorities to have regard to the need to safeguard and promote children’s welfare in everything they do. This duty can easily be breached when decisions are taken which affect children, for example Westminster’s decision to accommodate a homeless family in Milton Keynes.
  • There may be human rights obligations to provide support to children. Both Article 3 (right to freedom from inhuman and degrading treatment) and Article 8 (right to respect for family and private life) of the European Convention on Human Rights may require services to be provided to secure a child’s welfare – and these rights are embedded in English law through the Human Right Act 1998. Moreover the Supreme Court has recently emphasised the importance of the obligation in Article 3 of the UN Convention on the Rights of the Child to treat children’s best interests as a primary consideration in decisions affecting them – see my posts on the benefit cap case and Mathieson (the ‘DLA takeaway’ case) for more on this developing area.

All of these sources of legal obligations on local authorities are important. But none of them make up for the lack of a clear enforceable right to support for all children in need. Take Article 3 of the UN CRC as an example; a local authority considering whether to provide services to a child in need must take that child’s best interests as a starting point (‘primary consideration’) but may ultimately decide that other considerations (i.e. its budget) mean that services will not be provided. Is that really good enough as a legal scheme to protect children’s basic rights?

Many of the children helped by Kids Company will have complex mental health needs, some with formal diagnoses and others without. Yet the legal duties in relation to the provision of child and adolescent mental health services (CAMHS) are even less clear than those on local authorities in relation to children in need. This timeline from Young Minds sets out a host of reports, strategies and task groups to improve CAMHS services. Yet the reality is cuts to funding coupled with the absence of any clear legal rights for children and young people to access mental health services. NHS bodies provide CAMHS services under the NHS Act 2006 (as amended by the Health and Social Care Act 2012 to put the focus on clinical commissioning groups in relation to the provision of services) and the Mental Health Act 1983 and local authority input is underpinned by the Children Acts. None of this legislation creates any rights for an individual child to access CAMHS services.

There has been plenty written in recent weeks about the closure of Kids Company. The most clear-sighted article I’ve read was Zoe Williams’ Guardian interview with Camilla Batmanghelidjh. However for me the most telling part of the article was not anything said by Ms Batmanghelidjh but the comments of Mike Gee, the charity’s safeguarding manager. Zoe Williams’ summary of Mr Gee’s position is that ‘Kids Company didn’t have an adversarial relationship with the statutory services, but that those services were under so much pressure that they couldn’t afford to recognise the intensity of the need many children were in’. For anyone who has represented children in need and their families struggling to get support from a local authority this will have a huge ring of truth.

Despite the absence of the kind of specific duty that would give proper protection to all children in need, this article still suggests blatantly unlawful practice by public authorities. It is said that:

  • Statutory services ‘couldn’t treat those without a significant mental-health diagnosis’. This isn’t a legal eligibility criteria for support either from local authorities or the NHS.
  • Statutory services ‘wouldn’t recognise the illegal ones (trafficked and migrant children) as even real’. Trafficked and migrant children cannot lawfully be excluded from support on the basis of their immigration status. Indeed a prime purpose of the section 17 duty is to provide support to children and families who cannot access mainstream housing or other services by reason of immigration problems – see the Court of Appeal’s judgment in Birmingham CC v Clue.
  • ‘Without criticising Camhs, the window for statutory help – ill enough for a diagnosis, but not so ill that your behaviour is unacceptable – seems rather narrow’. If that were the window then CAMHS should surely be criticised – but it isn’t. CAMHS is a tiered service (graded 1-4), and children and young people with greater levels of need should be helped at a higher tier. Nor should there be any need for a formal diagnosis for low level support.

It is blindingly obvious that local authorities and NHS bodies don’t have the resources required to meet the needs of the children who were previously supported by Kids Company. What is perhaps more surprising is that the law doesn’t require them to do so. Without a proper framework of rights for these children to access the services and support they need from the state it is impossible to see how the services they require will ever be effectively resourced. And as a society we will continue to outsource the responsibility for meeting the needs of our children to charities, with all the risk this entails.