Family Law

The Social Services and Well-being (Wales) Act is fully implemented on 6 April, and makes major changes to social services functions in Wales. This article highlights the ways in which the Children Act 1989 will be affected.

Part III of the Act is repealed, so that s 17 ('Children in need') and s 20 ('Looked-after children') will move to separate legal frameworks in England and Wales. The new Act is supplemented by regulations and codes of practice, which are a mix of statutory and non-statutory guidance. The Codes are available on the Welsh government website, but the most accessible resource for all materials relating to the Act is a comprehensive hub maintained by Care Council for Wales.

Welfare and well-being

The 2014 Act attaches a duty to local authorities' social services' functions to promote a person's well-being. 'Well-being' in the case of children is extended to: (a) physical, intellectual, social, emotional and behavioural development; and (b) to include 'welfare' as interpreted for the purposes of the Children Act 1989 (s 2(3)). It is not yet clear how much more broad well-being is than welfare, or if indeed they will differ at all in day-ti-day social work practice (see J Doughty, Community Care, 28 January 2016).

Section 17 - 'Children in need'

Section 17 gave local authorities duties and powers to provide services to children who need them, to support them being brought up within their families. A child who is assessed as needing a service may not necessarily receive one, because there is no specific duty toward an individual child (R (G) v Barnet [2003] UKHL 57, [2004] 1 FLR 454). Services are therefore discretionary and may be constrained by lack of resources. This concept of s 17 is entirely replaced under the 2014 Act by a range of provisions that impose a duty on the local authority to provide a service that meets an assessed need, if certain eligibility criteria are reached.

Part 3 of the Act creates a right to assessment when it appears a person may have a need for care and support. The assessment is based on personal well-being outcomes and any barriers to achieving these. Part 4 then sets out how this need will be met, which may be through a Care and Support plan. It is intended that a Care and Support Plan under Part 4 can, if needed, provide the basis for plans under Part 6, Child Protection Plans, and care plans for court under s 31A, Children Act 1989.

Sections 20-30 - 'Looked after children'

The position regarding looked-after children is more straightforward, as most of these sections in the 1989 Act are reproducing. So, for example, s 76 in the 2014 Act carries over the wording of s 20 in the 1989 Act. Indeed, it could be said that there is now more consistency between England and Wales because all the amendments made to sections 22 and 23 of the 1989 Act by the Children and Young Persons Act 2998, have now been made in Wales. These were implemented in England in 2009, and include the strengthened role of IROs. On the other hand, there is a whole new set of terms to describe categories of care leavers.

Conclusion

There will be changes to statutory guidance on child protection and on court orders reflecting the new terminology, but, in essence, these aspects of the 1989 Act are unchanged. Lawyers working in Wales will, however, need to become familiar with the new landscape, including the assessment and provision of services for parents with disabilities and for carers of children with disabilities.

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A more in-depth article by Dr Julie Doughty will feature in the May issue of Family Law.

You can follow Julie on Twitter @julie_doughty.