A response to the lecture delivered by Baroness Hale of Richmond at The Honourable Society of Lincoln’s Inn on Thursday 27th March 2025, in celebration of Family Rights Group’s 50th anniversary ‘Looking Back in Order to Look Forward’.
By Luke Clements and Ana Laura Aiello[1]
It is with trepidation that we seek to question observations made by the noble Baroness Hale of Richmond, but this is what we find ourselves doing, in submitting this paper. Our misgivings relate to a short section within her fascinating FRG Celebration lecture. In this Baroness Hale voices her disapproval of the Law Commission’s suggestion that the Children Act 1989 should be amended to better address the needs of disabled children and their families.[2] In particular – its proposal to ‘take disabled children out of the Children Act and devise a new system for them’. Baroness Hale continues:
“I happen to think that this is the wrong approach. It assumes that disabled children are more deserving of help than other children in need. It assumes that they should be legally entitled to the help they need whereas other children in need are not. It assumes that the difficulties faced by families with disabled children in understanding the system and coping with the many different sources of help available to them are worse than the difficulties faced by many other families with children in need. I don’t underestimate those difficulties, but I think they apply to all families trying to navigate a complicated system. I think that taking disabled children out of the Children Act will serve to emphasise safeguarding those who are left over providing help for families who need it. I think that giving disabled children a legal right to services would discriminate against other children whose needs are just as great but who don’t happen to be disabled. Why don’t we give them all a legal right to services rather than the so-called ‘target duties’ in the 1989 Act?”
Baroness Hale is not alone. The Association of Directors of Children’s Services (ADCS) has also expressed misgivings about the Law Commission’s proposals:[3] concern that if disabled children are assessed and provided with support under separate provisions it ‘will lead to duplication’ and create ‘an even more complex picture for families to navigate’. The ADCS accepts, however, that ‘some [disabled] children and families have raised concerns that they feel they are assessed through a protection, rather than help, lens’ but it then suggests ‘that this is a practice issue rather than a legislative one’ – a point to which we return at the conclusion of this paper.
Disabled children as ‘more deserving’
The mere fact that disabled children are treated differently from other children in ‘need’ does not, in itself, assume that they are deemed to be ‘more deserving of help than other children in need’. What therefore is the rationale for suggesting that it is ‘wrong’ to have laws that provide rights for disabled people, which are not available to non-disabled people? This is precisely what the Children Act 1989 already does[4]– as, indeed, does the Chronically Sick and Disabled Persons Act 1970, the Equality Act 2010, the Welfare Reform Act 2012, the Care Act 2014 to name but a few. They do this for many reasons, not least because a failure to treat differently persons whose situations are significantly different constitutes, without an objective and reasonable justification, unlawful discrimination.[5]
Giving disabled children legal rights to services that are not available to children ‘who don’t happen to be disabled’ is not, in any event, (in legal parlance) ‘discriminatory’. Section 13(3) Equality Act 2010 makes it clear – that where the protected characteristic is disability it is not discrimination simply because a person treats the disabled person more favourably than someone who is not disabled.
Disabled children are different
Disabled people are in need of services, aids and physical/administrative adaptions by virtue of their impairments and the attitudinal and environmental barriers that hinder their full and effective participation in society. Adequate social care support is of fundamental importance to disabled people and it is difficult to understand why legislation that specifically acknowledges this fact is controversial. Difficult given the state’s obligation to take action to ‘ameliorate and compensate for the disabilities faced by disabled persons’.[6]: Particularly difficult, given that in ratifying the UN Convention on the Rights of Persons with Disabilities (CRPD) the UK promised to uphold these rights. Rights (among much else) to ‘a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community’ (Article 19(b) CRPD).
None of this is new. The 1985 Child Care Review[7] and the 1987 White Paper[8] that preceded the Children Act 1989 both accepted that the individual rights of disabled children to support services be maintained and the Children Bill, as introduced on the 23 November 1988, made specific provision for disabled children (clause 15 (10) and (11) Schedule 2 Part I).
The problem
The Children Act 1989 was an important consolidating and modernising provision – but much has changed over the last 35 years. There is compelling evidence that in relation to its public law provisions, it has become a safeguarding statute.[9] Admirable as was its ambition – to foster an approach based on the provision of proactive, preventative, community care support – this has, sadly, not come to pass.
Our 2021 research[10] highlighted the indignities and the humiliations that families with disabled children experienced when they sought support: of being treated as neglectful and/or abusive parents and their parenting deemed to be the cause of their child’s difficulties. In the same year the Chief Social Workers for Adults and the Chief Social Worker for Children and Families[11] noted that:
Even where the sole reason for contact with children’s social care was because of the social care needs of an autistic child, there was a tendency to use the social work assessment as an opportunity to judge parenting capacity through a child protection lens rather than through a lens of social care need. This has long been a complaint of families caring for disabled children.
This concern was echoed in the interim report of the independent review of children’s social care[12] commissioned by the Secretary of State for Education which noted (among other things):
that ‘a consistent theme in what the review has heard’ was that families with disabled children felt ‘that they are navigating a system that is set up for child protection, not support’ (page 29);
that ‘the energy of the system appears to be disproportionately spent on assessing and investigating families instead of providing support’ (page 30);
that [it] had heard ‘from care-experienced parents who describe the undignified position of being subject to child protection investigations if they seek help, which in turn stops them asking for the support they need’ (page 30).
The independent review’s final report[13] noted that ‘time and again’ it had heard from ‘both social workers and families that one size fits all assessments are overly intrusive for families, are not tailored enough to the needs of families, and do not align well with the framework for adult social care’; that families of disabled children had spoken of ‘their struggle to access support and their frustration navigating services’; and that disabled children are more likely to be re-referred to children’s social care than other children.[14]
The 2022 HM Government SEND Review[15] came to a similar conclusion, stating:
Some families with disabled children tell us they are put off seeking support from children’s social care because of fear they will be blamed for challenges their children face and treated as a safeguarding concern rather than receive the support they need.
In responding to these many expressions of concern the then Minister for Children, Families & Wellbeing in 2023 noted ‘the concern that when parents of disabled children approach their local Children’s Services department seeking support, they can be treated in the same way as parents suspected of neglecting or abusing their children’ and undertook to use a consultation on the relevant assessment guidance[16] ‘to consider how we can include a stronger focus on support for disabled children’.[17]
The Law Commission, to its great credit, undertook extensive meetings with (among others) parent carers and disabled children’s support groups: spent time at the coal face witnessing the actual workings of the 1989 Act. In its report it considered at length (chapter 23) whether the profound difficulties that families were experiencing could be resolved by appropriate changes to the relevant Statutory Guidance. It is difficult to disagree with its reasoned conclusion that this would not work, and that a new legal framework was needed.
It is a conclusion endorsed by many charities working with, and for, disabled children and their families. The national charity ‘Contact’ that administers the English Government’s Parent Carer Participation Grant for over 150 Parent Carer Forums, consulted with its members on the Law Commission proposals. It reported that ‘families shared depressing stories of struggling without support, local authority gatekeeping, and being made to feel guilty for asking for help’.[18] It listed its top two ‘asks for social care law reform’ as:
- A single express legal duty to assess the social care needs of disabled children.
- A new legal framework for disabled children’s social care.
In similar vein, the first recommendation of the 2025 report by ‘Sense’[19] (the charity for people with complex disabilities and their families) is for a change to the law:
to create a simple and streamlined process for all disabled children to easily access the right support. A new legal duty to assess all disabled children should be set, and a national eligibility threshold should be established to ensure more consistent access to social care across the country.
Procrustean approaches to children’s needs
There is no incontrovertible reason why only one Act or one department should deal with every aspect of a child’s needs – from child protection to community care. Indeed, today we have different Acts dealing with children’s education, with children’s health and with children’s social care. Consolidation is not a panacea to all known systems’ challenges – and when it is shown to have failed, there is a need to think and act differently.
For those of us who view the 1989 Act through a disabled children and their families’ lens, it is incontestable that their community care support rights have been neglected: lost in the dark shadow of ‘safeguarding’. For reasons that are understandable, the gaze of successive governments has been elsewhere. To now argue for ‘inclusion’ and the avoidance of ‘duplication’ is to miss the point entirely.[20] Disabled Children and their families should not be included in a ‘one size fits all’ safeguarding dominated system – unless of course the state has cogent evidence that this is necessary: disabled children and their families have a right to be treated differently. This much has been known for a long time.
A material redraft of the policy and practice guidance could go a considerable way to addressing significant aspects of the injustice and consequential harm such families experience. Successive governments have known this and have failed to act. The Law Commission has looked at the evidence, consulted widely and produced an impressive, thoughtful and reasoned report. In essence it concludes that in order to simplify and make fairer the law relating to the social care needs of disabled children, Parliament must legislate: must speak where the Executive has been – and continues to be – silent.
[1] Luke Clements is the Cerebra Professor of Law and Social Justice at the School of Law, Leeds University and Dr Ana Laura Aiello is the Researcher on the Cerebra Legal Entitlements and Problem-solving (LEAP) programme at the School of Law, Leeds University.
[2] Law Commission Disabled Children’s Social Care Consultation Paper 265 October 2024, Consultation Question 82 Paragraph 23.23.
[3] Association of Directors of Children’s Services and Local Government Association ADCS and LGA response: Law Commission Review – Disabled Children’s Social Care 15 January 2025.
[4] See for example sections 17(10) and 17(11), and Schedule 2 Part I.
[5] Thlimmenos v Greece (2001) 31 EHRR 15; Application No. 34369/9731 6th April 2000 at para 44 and see Burnip v. Birmingham City Council and and Gorry v. Wiltshire Council and others [2012] EWCA Civ 629, para 14.
[6] Price v United Kingdom (2002) 34 E.H.R.R. 53.
[7] Department of Health and Social Security Review of Child Care Law (HMSO 1985) para 5.15.
[8] DHSS The Law on Child Care and Family Services (Cm 62) (HMSO 1987) para 18.
[9] See for example, Bilson. A. (In Press) Trends in Parent and Carer Blame: Patterns of service for children with a disability or mental illness referred to children’s social care; Clapton, G., Cree, V. E., & Smith, M. (2012) ‘Moral Panics and Social Work: Towards a Sceptical View of UK Child Protection’ Critical Social Policy, 33(2), 197–217; Clapton, G. (2020) ‘Child Protection Anxieties and the Formation of UK Child Welfare and Protection Practices’ in Tsaliki, L and Chronaki, D (eds) Discourses of Anxiety Over Childhood and Youth Across Cultures Springer International Publishing; and Morris, K., Featherstone, B. and White, S. (2013). We need to think again about how to protect children Guardian 22 October 2013.
[10] Clements, L. and Aiello, A.L. (2021) Institutionalising parent carer blame: The experiences of families with disabled children in their interactions with English local authority children’s services departments, Cerebra, University of Leeds.
[11] Chief Social Workers for Adults and the Chief Social Worker for Children and Families A spectrum of opportunity: an exploratory study of social work practice with autistic young adults and their families (Department of Health and Social Care 2021).
[12] An independent review of children’s social care (chaired by Josh MacAlister) The Case for change (2021).
[13] J MacAlister The independent review of children’s social care Final report May 2022 p.39.
[14] Ibid p. 59 citing Troncoso, P. (2017) Analysing Repeated Referrals to Children’s Services in England Department for Education.
[15] HM Government SEND Review: Right support Right place Right time CP 624 HMSO 2022 p 10.
[16] Currently HM Government Working together to safeguard children (Department for Education 2023).
[17] The Minister Claire Coutinho to Rt Hon Jesse Norman MP 13 March 2023 – Minister for Children, Families & Wellbeing.
[18] Contact Families call for radical reform of disabled children’s social care law 5 February 2025.
[19] Sense From crisis to care – making social care work for disabled children March 2025.
[20] Not least for those that argue that duplication is wrong, and then suggest that it can be moved elsewhere – i.e. by having separate guidance, as appears to be the approach of ADCS.
