On 6 September 2023, the House of Lords is due to debate the following motion:

Baroness Tyler of Enfield to move that this House takes note of the report from the House of Lords Children and Families Act 2014 Committee ‘A failure of implementation’ (HL Paper 100).

1. What is the Children and Families Act 2014?

The Children and Families Act 2014 (the CFA) came into force on 13 March 2014. The purpose of the act was to introduce reforms that would improve services for vulnerable children and their families. This included children in the adoption and care systems and those affected by decisions of the family courts.

The CFA is wide-ranging and cuts across a spectrum of policy areas and government departments. In addition to making changes to the adoption, care and family justice systems, it also introduced reforms to support families (particularly those with young children) to balance their home and work life. Additionally, it established the statutory role of children’s commissioner for England to promote and protect the rights of children. Dame Rachel De Souza is the current children’s commissioner for England.

In November 2021, the House of Lords Liaison Committee recommended a committee be appointed to conduct post-legislative scrutiny of the CFA. Post-legislative scrutiny refers to an inquiry by a parliamentary select committee into how an act of parliament has worked in practice since it came into force.

2. What did the House of Lords committee inquiry consider?

The House of Lords Children and Families Act 2014 Committee launched a post-legislative scrutiny inquiry on 9 March 2022. The purpose of the inquiry was to determine if the CFA had achieved its aim of improving the lives of children and families. The committee did not examine the whole act in detail. Instead, it focused on specific policy areas that it felt would benefit from further scrutiny. This included the CFA’s provisions on adoption and contact, family justice, statutory employment rights to leave and pay, and the right to request flexible working.

3. What did the committee recommend and how did the government respond?

The committee published a report on the CFA on 6 December 2022. The report contained recommendations across several policy areas. Summarising its findings, the committee said the CFA had “ultimately failed” to “meaningfully improve” the lives of children and young people. It attributed this “failure” to several things, including insufficient data collection, implementation and scrutiny of the CFA. It concluded:

Despite admirable intentions [and] the sheer breadth of the areas covered by the act, a lack of due concern given to implementation, poor data collection to measure impact and a lack of joined up action at all levels, has contributed to children and their families feeling let down by the system.

The government responded to the committee’s report in February 2023. It said whilst some parts of the CFA required continued focus on their implementation, there were other parts that have had a positive impact on children and families. However, it agreed that reform was needed in children’s social care to ensure it delivers for all.

The government did not agree with all the committee’s recommendations. The committee’s key findings and recommendations are summarised below, alongside the government’s response.

3.1 Post-legislative scrutiny

The committee raised concerns about a lack of post-legislative scrutiny of the CFA that had taken place since the act came into force. The Cabinet Office’s ‘Guide to making legislation’ includes a government commitment to produce a post-legislative memorandum between three and five years after a piece of legislation comes into force, unless it is felt to be unnecessary. The committee said successive governments had failed to adequately monitor the CFA’s implementation, with government departments making “no meaningful effort” to evaluate its impact. More generally, the committee referred to an analysis of post-legislative scrutiny by Dr Tom Caygill, politics lecturer from Nottingham Trent University, that stated the production of post-legislative memoranda by the government had declined in recent years. To address this, the committee made the following recommendation:

  • The government should publish a post-legislative scrutiny plan when an act receives royal assent. If applicable, this should include details of when a post-legislative memorandum will be published and the methods to be used for collecting and evaluating data on an act’s provisions.

In response, the government said it did not consider it proportionate to require departments to publish their plans for post-legislative scrutiny. It said this was because plans evolve over time as issues arise, with some issues unforeseen in the period immediately following royal assent.

3.2 Adoption

The CFA changed the adoption system in several ways. This included the introduction of early permanence placements such as ‘foster for adoption’ placements. The purpose of these placements is to place a child in the care of an adoptive family at the earliest opportunity. Local authorities have a duty under the CFA to consider placing a child with foster for adoption carers. These carers would become the child’s adopters if subsequently approved by a court or the child’s birth parent.

The committee found that courts had taken inconsistent approaches when approving such placements. It also said adoption agencies and local authorities had received a lack of support to implement this duty. The committee said this had resulted in the duty having “minimal impact” and recommended the following:

  • The government should publish an assessment of the impact of the investment made to increase early permanence placements and publish a longer-term strategy for promoting early permanence.

In response, the government said it had no current plans to publish an assessment of the impact of early permanence funding. However, it said regional adoption agencies were working on various government-funded early permanence projects that would be monitoring, reviewing and evaluating progress.

The committee also considered race and ethnicity in the adoption process as part of its inquiry. The CFA removed the previous statutory requirement in England to consider a child’s religion, race, cultural and linguistic background when matching to adoptive parents. Despite this removal, the committee said ethnic minority children were still waiting too long to be adopted when compared with children from other backgrounds. It also described the adoption workforce, specifically adoption panels, as “insufficiently diverse” and recommended the following to address these issues:

  • The government should create a taskforce that would be dedicated to addressing ethnic and racial disparities in the adoption system.

In response, the government said it had committed to increasing the number of adoptions of ethnic minority children and reducing the time such children wait to be adopted. It said tackling racial disparities in the adoption system was a key aim of the Department for Education’s ‘Adoption strategy’. However, it did not agree with the committee’s recommendation for a dedicated taskforce to be set up to address the problem. This was because the government had already agreed to implement findings from the Commission on Race and Ethnic Disparities which included recommendations for improving adoption for disadvantaged children. However, the government said it would continue to publish data on the time it takes ethnic minority children to be adopted.

Additionally, the committee raised concerns about the level of post-adoption support available, specifically that which is targeted at early intervention. It welcomed the government’s adoption support fund which enables local authorities and adoption agencies to apply for funding to pay for essential therapeutic services for certain families. However, the committee argued that the fund’s narrow scope and complex application process had limited its effectiveness. It recommended the government should:

  • consider expanding the adoption support fund, allowing it to be used for more than therapy and ensuring it is also focused on early intervention

In response, the government said it would consider the fund’s scope at the next spending review.

The committee also considered support available for kinship carers. ‘Kinship care’ refers to a situation whereby a child lives with a relative or friend who is not their birth parent. This can be done formally through a special guardianship order (SGO) or child arrangement order, or informally without a legal order. The CFA does not contain any provisions on kinship care. The committee described this as a “clear failure” and raised concerns about the levels of support available for kinship carers. It noted the take-up of the adoption support fund by kinship carers with SGOs had remained low. To address this, the committee said:

  • The government should launch a promotional campaign to increase the uptake of the adoption support fund by those parenting with an SGO. The committee also recommended the government should change the fund’s name to reflect that the fund is not limited to adopters.

In response, the government said it agreed with the committee’s recommendation to promote the adoption support fund to increase uptake from special guardianship families. Whilst it disagreed with the committee’s suggestion for the fund’s name to be changed, it did say the Department for Education was working with kinship carers and representative organisations to encourage eligible special guardianship families to access the fund.

3.3 Family justice

The CFA made several changes to the family law system. This included the introduction of a 26-week limit on courts to complete care and supervision proceedings when they are considering whether a child should be taken into care or placed with an alternative carer. The CFA enables this time limit to be extended if necessary.

Whilst the committee said the 26-week limit had been positive in parts, it said the average duration of cases was too long. It raised several concerns, including resourcing pressures on local authorities and the Children and Family Court Advisory and Support Service, and pressures on judicial time. It recommended the following to address these issues:

  • A senior independent chair should be appointed to the Family Justice Board to enable the board to “show greater leadership and share insights with local family justice boards and others”. Additionally, the government should publish an action plan with targets and timescales for reducing delays in children’s cases.

In response, the government said reducing delays in the family justice system remained a key priority. That was why it was working with independent partners to develop measures that could improve timeliness and address backlogs. The government also said it would reflect further on what steps it could take to ensure the Family Justice Board was as effective as possible.

One key issue raised by the committee was the level of data available on the family justice system. It said the “current absence of sufficient data on court outcomes [was] an evident failure of the system”. Without improved data collection, the committee said the government was at risk of making policy changes without a sound evidence base. To address this, it recommended:

  • The government should improve its collection and sharing of data on the family justice system.

In response, the government said it recognised the importance of monitoring and sharing information for bringing down delays and had plans to better inform the public and stakeholders about the performance of family proceedings.

The CFA requires anyone wanting to apply for SGOs or other family orders to attend a family mediation, information and assessment meeting (MIAM). Facilitated by a family mediator, MIAMs provide individuals with information on the mediation process and options for reaching agreements. Following its inquiry, the committee concluded that MIAMs had been “ineffective and had low engagement rates”. The committee acknowledged the benefits of mediation but said it was not appropriate in all cases. It accused the government of having an “excessive” focus on mediation as a method of reducing the court backlog. It also raised “serious concern” about moves that would make mediation “functionally compulsory”. The committee said individuals would instead benefit from having a source of clear and impartial information on separation and, if necessary, general legal advice which could direct them to various resolution options. It recommended:

  • The government should provide and maintain a website which provides impartial advice for separating couples on the family justice system. Additionally, the committee urged the government to reconsider its proposals to make mediation “effectively obligatory” and recommended a universal voucher scheme for general legal advice appointments be introduced.

In response, the government said it recognised the positive impact mediation and other forms of dispute resolution could have on families and children. As a result, it had developed proposals to encourage families to attempt mediation which would be subject to a public consultation. On MIAMs, the government stated it had been working with the Family Procedure Rule Committee (FPRC) to consider ways of strengthening the MIAMs process. The FPRC has since held a consultation from 30 March to 25 May 2023 on early resolution of private family law arrangements that included consideration of MIAMs. The consultation findings are yet to be published. Additionally, the government said it was committed to researching ways to develop better tools to support separating families.

The Children Act 1989 requires family courts to follow the principle that “the child’s welfare shall be the court’s paramount consideration” when making decisions. To support this, the Family Justice Council produced the 2010 ‘Guidelines for judges meeting children who are subject to family proceedings’. These guidelines set out when judges should meet with children directly and the purpose of such meetings. The committee stated that children themselves were best placed to speak about what was in their best interests and should be involved in decisions about their future. However, the committee said evidence had shown that the voice of the child was not always heard and respected in the family justice system. It recommended the following to address this:

  • To formalise the voice of the child in proceedings, initial family court hearings should include consideration of how the voice of the child will be heard during the case. The Family Justice Council should also review its 2010 guidance on judges meeting children. Additionally, the Family Justice Council and the Judicial College should consider the training needs of judges in this area and the sharing of best practice.

In response, the government stated that various trials were underway to assess methods for strengthening child engagement in proceedings. Referring to the 2010 guidance on judges meeting children, it noted that training responsibilities for the judiciary fell outside of the government’s jurisdiction. However, it confirmed that the recommendation had been submitted to the Family Justice Council for consideration.

The Children Act 1989 provided the framework for courts to use when deciding how much time (if any) a child should spend with separated parents. The CFA amended the Children Act 1989 by introducing a presumption that, unless there was evidence to the contrary, a parent’s involvement in their child’s life would benefit the child’s welfare. The committee said whilst this ‘presumption of parental involvement’ was beneficial in most cases, the child’s welfare and wishes were paramount and should be judged according to their individual situation. Referring to evidence received during its inquiry, the committee raised concerns that, in some cases, the rights of parents were being put ahead of the rights and welfare of children. Whatever the case, the committee said there was an absence of adequate data that showed the effect of this presumption on both court judgements and out-of-court settlements. In November 2020, the then parliamentary under secretary of state for justice, Alex Chalk, announced in the House of Commons that the government would carry out a review of the presumption of parental involvement in child arrangements. The findings of this review have not yet been published. In anticipation of these findings, the committee recommended:

  • The government should “carefully” consider the review findings and make the legislative or other changes necessary to ensure children’s welfare is always prioritised.

In response, the government said the final report of its review of the presumption of parental involvement would be published in 2023.

3.4 Employment rights

The CFA introduced the rights to shared parental leave and shared parental pay. Shared parental leave allows parents to share up to 50 weeks of leave and up to 37 weeks of pay in the first year after their child is born. The committee considered evidence on the uptake and complexities of shared parental leave. In March 2018, the House of Commons Women and Equalities Committee proposed that shared parental leave should be replaced with a right to 12 weeks’ paternity leave. This would include four weeks at 90% of a person’s salary with no cap and the remaining eight weeks at the statutory rate. The committee said it supported this proposal because it would not require mothers to give up any of their leave. The committee said the government should:

  • publish an assessment of the costs and benefits of such a policy, as well as consider the impact of the policy on small organisations and enterprises

In response, the government said it remained committed to the shared parental leave scheme.

Currently, self-employed fathers and partners do not qualify for shared parental leave or paternity allowance. However, self-employed mothers who meet certain conditions are eligible for maternity allowance. The committee noted the unfairness this subjected self-employed fathers/partners to and said the government’s ambition should be to provide a level playing field for self-employed parents. It recommended:

  • As a minimum, self-employed fathers/partners should be given a right to statutory shared parental pay that is subject to the same conditions and rate as those given to directly-employed fathers/partners. Additionally, the committee said the government’s ambition should be to provide self-employed fathers/partners with 12 weeks’ paternity pay, paid at the same rate that mothers receive maternity allowance.

The government disagreed. It said the reason parental leave and pay was not available to the self-employed in the same way as employed parents was because employees did not generally have the same levels of autonomy and flexibility as those who are self-employed. The government said it was currently supporting several private members’ bills which would offer additional entitlements to employed parents and families.

The committee noted that kinship carers had no legal right to paid time off work and frequently relied on the good will of their employers. Because of this, the committee said some kinship carers were forced to leave the labour market. To address this, it recommended that:

  • kinship carers with SGOs should be given the same rights to paid time off work as adopters

In response, the government agreed that kinship carers required additional support. It referred to a commitment it had made to explore ways of increasing the support SGO families receive as part of the Department for Education’s children’s social care implementation strategy, ‘Stable homes, built on love’. Providing examples of work it had undertaken so far in this area, the government said it had already engaged with a group of kinship carers and invested new funding to create support groups for kinship carers across England.

The committee’s inquiry also considered the principle of flexible working. It noted the variety of benefits that flexible working could have on both an individual and societal level. It said some employers and employees had tended to disagree on how to implement the right to request flexible working arrangements. The committee heard evidence that whilst many employers and campaigners would support making the right to request flexible working a ‘day-one right’, some had argued that jobs should be designed and advertised flexibly from the outset. The committee said it saw no obstacles to making the right to request flexible working a day-one right. It recommended that:

  • businesses should be encouraged to advertise jobs flexibly whenever possible, with the government leading by example

In response, the government said it had committed to changing the law to support more open and constructive conversations between employers and employees about flexible working. The government has supported the Employment Relations (Flexible Working) Bill on its passage through Parliament. This private member’s bill would amend the Employment Rights Act 1996 to make it easier for employees to request flexible working. The bill’s third reading debate in the House of Lords is scheduled to take place on 14 July 2023.

3.5 Building a better future for children and families

During its inquiry, the committee considered several policy areas that were not covered by the CFA but were closely related to many of its provisions. This included young people’s mental health. The committee described children and adolescents’ mental health services as being in “crisis”. Evidence it had received from various stakeholders across the medical, legal and child support sectors referred to long waiting lists and an increased prevalence of mental ill-health amongst young people. The committee said it was deeply concerned by these findings, stating it was a “grave threat” to the success of the CFA and its overarching aim of enhancing the lives of children and their families. The committee argued that “the government, in allowing services to deteriorate to this level, [had] shown it [had] not grasped the importance and severity of this problem”.

The committee also considered the importance of early intervention in many areas covered by the CFA, as well as the importance of data collection, sharing and analysis. It said without proper data collection mechanisms, the government was “flying blind” and unable to track the effectiveness of its policies. The committee said improved data usage across the public sector was “crucial to ensure good outcomes for service users, help identify problems as they arise, and seek value for money”.

On representation, the committee said children needed a strong voice at the highest level of government that could advocate for children’s views and needs. It referred to the children’s commissioner for England as a powerful advocate with critical powers. The committee said it was “critical” that the government continued to heed the commissioner. The committee also said the government should consider how best the voice of children is represented at senior levels of government.

In conclusion, the committee said it had sought to hear directly from children, young people and their families during its inquiry. Referring to problems it had found within the CFA, the committee said the “failure of [the CFA] was clearest to us in the conversations with the very children it was designed to support”. The committee urged the government to ensure that children’s welfare was its “paramount concern” when developing policies that affect children and young people in the future.

4. What announcements has the government made recently?

The government has recently set out plans to reform children’s social care. On 2 February 2023, the Department for Education published a consultation on its children’s social care implementation strategy, ‘Stable homes, built on love’. This set out and sought views on proposals to reform children’s social care. The consultation closed on 11 May 2023 and the findings have not yet been published.

In the government’s response to the House of Lords Children and Families Act 2014 Committee’s report, the government said the new strategy contained “ambitious plans to take forward transformation” and build upon the CFA. It also said the strategy recognised that some of the issues raised by the committee required further examination. The government noted that many of the committee’s recommendations were “at the heart” of its plans for reform, including:

  • prioritising early intervention
  • enabling strong use of data
  • improving adoption and family justice practices
  • giving greater attention and focus to alternative care arrangements such as kinship

In summary, the government said it would continue to place the interests of the child at the heart of its reform plans.

5. Read more

Cover image by BBC Creative on Unsplash.

Updated to give rescheduled date of debate.