How can the English Approach to Children's Social Care be Reformed in Compliance with the UN Convention on the Rights of the Child?

  • Shane Paul McKinder

Student thesis: Doctoral Thesis


There is no escaping the reality that Children’s social care is in crisis in England. The reasons usually offered to explain the crisis in children’s social care are the increasing demand for social care services in a climate of aggressive austerity politics, resulting in a reduction of funding for children’s social care. This doctoral thesis takes a different approach by focusing on the problems with the legal framework for children’s social care in England, resulting in the thesis arguing that the law governing children’s social care urgently needs reform to promote and safeguard the welfare of children. The existing approach is problematic because the construction, interpretation and implementation of the ‘general duty’ in section 17(1) of the Children Act 1989 does not give individual children a right to social care support. Individual children have no right to social care because the ‘general duty’ is a weak target duty, which is comparable to local authorities making a discretionary decision about whether to provide children with social care support. This means the ‘general duty’ provides individual children with eligibility rather than a right to social care support.
This thesis argues that the existing approach to children’s social care potentially violates the requirements of the UN Convention on the Rights of the Child (the Convention) because it does not provide children with a right to social care support. There is not an explicit right to social care support listed in the Convention, but such a right can be extrapolated from considering a variety of related rights. The research in this thesis identifies that children can be provided with social care support directly or indirectly by supporting the child’s family. Therefore, this thesis fleshes out the most pertinent rights that form the basis of a right to social care under the Convention. Alongside this research, this thesis also discusses the requirements of State Parties to implement children’s economic, social, and cultural rights because these rights predominantly, although not exclusively, encompass children’s social care. Together, the requirements of the Convention are made clear, requiring social care support to be provided as of right to children in need and for resources to be prioritised for the realisation of the child’s right to social care support.
This thesis considers several avenues of redress to overcome the problem that individual children have no right to social care in England. This part of the thesis considers whether individual child litigants can challenge local authority decisions about social care support in the Administrative Court using judicial review. Using judicial review to challenge local
authority decisions does not remedy the problem that individual child litigants have no right to social care support, as the Administrative Courts can only look at whether a social care decision was made in the right way – not whether it was the right decision. Therefore, it is argued that the courts are of limited use for remedying the problems with the ‘general duty’. This thesis also considers other avenues of redress that are not underpinned by judicial review. However, these are similarly argued to not remedy the problems with the ‘general duty’.
This thesis argues that the law governing children’s social care in England should be comprehensively reformed by drawing inspiration from the Welsh approach to social care support. Wales approaches social care in a radically different way to England by dealing with social care for everyone in a single piece of legislation. In many respects, the Welsh approach is a developed version of the legal framework for adult social care in England. In light of this, this thesis argues that the Care Act 2014 should be amended to include children within its scope. This would resolve many of the problems with children’s social care by upgrading the ‘general duty’ to one that is specific and enforceable. Drawing on the Welsh legal framework, this thesis argues a duty to have ‘due regard’ to the Convention should be introduced in the amended Care Act 2014, which would ensure that local authority decisions about social care are made with ‘due regard’ to the requirements of the Convention.
Such a reform package would indirectly incorporate the Convention into English law, ensuring a more Convention-compliant approach to children’s social care in England. This thesis makes an original contribution to knowledge by reforming children’s social care in a Convention- compliant way using the Care Act 2014 and Social Services and Well-Being (Wales) Act 2014. The thesis fills a gap in existing research, particularly in light of the overlooked Welsh approach, and provides a roadmap for reforming children's social care in England.
Date of Award17 Apr 2024
Original languageEnglish
Awarding Institution
  • University of Portsmouth
SupervisorKieran Walsh (Supervisor) & Daniel Bedford (Supervisor)

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