Special Needs Law Reform – Michael Charles reports that Wales has opportunity to “lead the way”

This week I have had cause to deal with an emotive and some may agree, tragic case of a single mother battling to secure support for two highly complex special needs children. One ot those children is violent and exceptionally demanding not to mention destructive, such that virtually no product within the home is left undamaged at great daily risk to the family.

Yet the case also highlights a fundamental problem with the current law pertaining to the needs of children.

In this particular case social services determined that mother, although dedicated and most loving, cannot be expected to provide the 24 hour care for her children unsupported. A determination was made that the particular child required residential schooling at a highly specialist placement, a relief some may say for an emotionally and physically drained, and in my opinion, “exceptional” mother.

However, the Education department claimed otherwise. It said that the child required a day placement albeit specialist, entirely ignoring the decision made by its partner agency. As a whole, the local authority thereafter treated the Education decision, as the one to take priority. Thus it closed the social care file, with the consequence of leaving outstanding the pleas of the mother, and the consequent unmet needs of the child.

True, the Special Needs Tribunal is a vehicle to resolve the Education decision. However the health care and social care needs of a child are beyond its jurisdiction. Here lies a paradox. On the one hand it is well established in law that the protection and welfare needs of a child is a paramount consideration for the state , yet on the other the state allowable method to resolve unmet need, leaves open and unresolved, needs that are often intrinsically linked, due to this jurisdictional issue.

Few cases are as stark however as this one where two departments of the same authority are in plain and obvious conflict at the expense of the child. Yet this is a trend I have seen all to often in my 25 years in the law.

Let me explain. The general public understand the distinction between aspirations and duties. To use a legal expression, the aspiration is merely a “target duty”, which is treated as one which does not allow a person to sue upon in the same way as a specific duty. It is tantamount to a person being merely expected to “do their best”without guaranteeing the outcome. Sadly many of the duties befalling social care, are treated as “target” duties. They exist, but there is little one can do legally about it when the duty has been breached, unlike the majority of educational decisions that permit tribunals to resolve arising conflict.

The partial logic behind this jurisdictional limitation is to allow social care departments to do a difficult job without the ongoing threat of legal proceedings should they get it wrong. This is particularly evident in child protection cases involving allegations of abuse and neglect. It is considered that a child may be harmed or even killed if social care were in any way reluctant to take a protective step which it believes needs to be done, but feels unable to take due to fear of legal action. The courts have long established that it would be contrary to public policy to allow claims for breach of statutory duty for this purpose. We must never allow for a single child to be harmed. The welfare and protection of children must indeed be treated as the paramount consideration for all, in a civilised society. Yet this does not mean that the law cannot be changed in a way that preserves protection on the one hand for child protection decisions which may lead to typical “care proceedings” whilst allowing a route for resolution for different kinds of community care services.

In England this opportunity was missed, however close the legislation came to crystallising specific duties. The fact remains that important health or social care decisions remain in legal terms “aspirational”.

This might not help the mother I am tasked to help unless I am creative with the law in a way that permits me to shift the tide of legal precedent. However, even if this were achieved it does not mean that this may necessarily help avoid weeks and or months of pain for this mother and the many hundreds of parents in similar situations up and down this country whilst the High Court considers the case. The fact that I have to be creative with the law, may be perceived to be a joy for us lawyers, but in my view tragic. It is certainly tragic for the person who has to stand by, living with the impossible whilst lawyers are tasked with doing their thing. Creative thinking in law often leads to delay, as our heavily burdened courts take time. The mother in my case feels that she does not have this time. The problem is happening now. Indeed it happened yesterday and it will happen again tomorrow.

How many more children and families need to suffer in this way? How many children in need of health care support cannot receive it fast or sometimes not even at all? (One only needs to visit our mental health departments to appreciate this). In my 25 years fighting for the rights of children I have seen all too often how many children are failed by an overy stretched, public service. We must not leave to aspiration, the sound health care and social care needs of our children. We must create laws that are effective and not merely words to assist in political vote gaining. The public need to know the difference between target and specific duties. Governments should never mislead the public when they quote in manifesto aspirations that will merely result in target duties. We need more specific as opposed to target duties for our children. If we fail them now, we stand to fail another generation of special needs children.

When I look back to my childhood at school I recognise the remarkable progress in science as well as general knowledge surrounding what can be done for children with special needs. We must create laws that are effective not toothless. The law must not merely rage it must bite.

This is why today I call upon the Welsh Government which is now considering law reform for children, to seize a chance. Let’s show the people of this wonderful United Kingdom that Wales can lead the way and provide an example of how a civilised society must work. That is why I say that other than cases relating to claims of child abuse, territory which I agree must be left for the court to resolve in typical care proceedings , that we extend the jurisdiction of the Special needs tribunal to actually determine social and health care needs of our children so that those needs, once determined become specific duties to provide for, rather than a mere aspiration. If we are determined to help a generation develop safely with dignity and positivity, endeavouring to do merely “our best” within the confines of limited legal parameters, is never enough and is certainly not actually “our best”.

I promise this mother that in the meantime I shall preserve my creative mind

Michael Charles

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