The Children’s Wellbeing and Schools Bill: Transforming England’s Children’s Care System

The Children’s Wellbeing and Schools Bill, which completed its first passage through the House of Commons last month, now includes a set of corporate parenting responsibilities for Secretaries of State, the Lord Chancellor, education and health bodies, Ofsted, the Care Quality Commission and the Youth Justice Board. This is a landmark development which was proposed in 2022 by the care review established by the former Conservative government, led by Josh MacAlister who was elected Labour MP for Whitehaven and Workington in 2024.

MacAlister also recommended that care experience become a protected characteristic under the Equality Act 2010, building on the concept of ‘careism’ powerfully articulated by Mike Lindsay nearly four decades ago, in his groundbreaking role as the UK’s first children’s rights officer for care experienced children and adults. Today, Terry Galloway, another formidable care experienced campaigner, is leading the charge across local authorities successfully persuading them to treat care experience as a protected characteristic in lieu of successive government reticence to amend the 2010 Act. More than 110 local councils across England, Wales and Scotland have so far taken this step.

Will statutory corporate parenting responsibilities transform the ways in which central government and others discharge their obligations towards children and adults who rely on the state as parent? Could these new statutory duties achieve the kinds of positive changes delivered by anti-discrimination legislation across the past half century or so? As ever, the devil is in the detail.

Clause 21 of the Children’s Wellbeing and Schools Bill sets out the new responsibilities. If enacted, and one had to describe the new duties directly to those they are intended to benefit – children who are looked after by local authorities and those who were looked after at the age of 16, are now aged under 25 and are no longer looked after – the explanation would be something along these lines:

• Government departments, education and health bodies, Ofsted, the Care Quality Commission and the Youth Justice Board will have to keep you and other care experienced children and young people in mind. They will have to actively think about whether their decisions, plans, rules (policies) and actions have a negative effect on the wellbeing of care experienced children and young people. (The wording in the Bill is “be alert to matters which adversely affect, or might adversely affect…”.)
• They will have to check out the services or support they provide, or may provide, for you and other care experienced children and young people.
• They will have to try to provide opportunities for you and other care experienced children and young people to get involved in activities which aim to help your wellbeing or employment chances.
• They will have to take action which they think is right to help you and other care experienced children and young people use their services and support. They will also have to take action that they think is right to encourage you and other care experienced children and young people to take up opportunities they offer aimed at helping your wellbeing or employment chances.
• But these organisations must follow these new duties only so far as they fit with what they are set up to do and so long as the duty is feasible / possible for them to carry out. (The wording in the Bill is: “…applies to a relevant authority only so far as compliance with the duty (i) is consistent with the proper exercise of its functions, and (ii) is reasonably practicable”.)
• None of the new duties applies to government action and decision-making around immigration, asylum or nationality.
• None of the new duties applies to government action and decision-making around general customs, such as stopping people being smuggled into the country.

In addition to the corporate parenting responsibilities, Clause 23 requires, so far as reasonably practicable, collaboration between the relevant authorities listed in the Bill and local authorities, which have separate corporate parenting principles to work to, in section 1 Children and Social Work Act 2017. These are stronger than the new responsibilities though, similarly, not outcome focused.

It’s perplexing that government has chosen to straddle corporate parenting obligations across two statutes, with the obvious risk of confusion. If the real intention of these new provisions is to spur the state into action to reduce inequalities and the myriad disadvantages faced by care experienced children and adults, then why not frame the legislation as such? Adopting the language of section 1 Equality Act 2010, this could have been a public sector duty regarding care experience disadvantage, for instance. Such framing would allow for many other bodies and organisations to be added over time, without diluting the genuine (state) parenting role of local authorities. It would also strengthen the case for the Home Office’s immigration functions to be subject to these new responsibilities (many are, understandably, queasy about the Home Office being conceived of as a corporate parent given its unlawful placing of unaccompanied asylum seeking children into hotels, bypassing the Children Act 1989 – ECPAT UK, R (on the application of) v Kent County Council & Anor [2023] EWHC 1953 (Admin)).

Through this Bill, Parliament also has a great opportunity to replace the 2017 Act’s cold, bureaucratic language of corporate parenting.   

Back to Clause 23 and joint working between relevant authorities and local authorities: as well as the reasonably practicable caveat, this is required only when they consider it would safeguard or promote the wellbeing of care experienced children and young people. Clause 24 provides for statutory guidance, which may set outcomes for the relevant authorities listed in the legislation. Then Clause 25 requires government departments to account for how they have discharged these new statutory responsibilities through three-yearly reports laid before parliament.

The wording of Clause 21, the corporate parenting responsibilities, comes almost verbatim from section 58 Children and Young People (Scotland) Act 2014, with two striking omissions. First, the requirement in the Scottish legislation to promote the interests of care experienced children and young people is absent from this Bill. Second, there is no reasonably practicable limitation in the Scottish legislation.

Moreover, the 2014 Act additionally required public authorities to periodically account for their actions around the United Nations Convention on the Rights of the Child (UNCRC). This is because the introduction of corporate parenting responsibilities in Scotland was part of a much wider programme of children’s rights change. The 2014 UNCRC duty was repealed by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, which made the treaty fully part of Scots law. England is lagging far behind on this front: what we see in Clause 21 stands alone as representing the UK Government’s overarching vision for galvanising public bodies to act with and for care experienced children and young people. Being alert to matters which adversely affect wellbeing is not the usual rallying cry of reformers and activists seeking to end entrenched disadvantage, stigma and discrimination. With the Bill having its Second Reading in the House of Lords on 1 May, there is still plenty of time for children’s rights and interests, and some parental passion, to be written into the legislation.