Court orders protecting vulnerable children could become “unenforceable” if the government pushes through changes exempting councils from their legal obligations, the Magistrates’ Association (MA) has warned.

In a highly unusual intervention during the passage of a parliamentary bill the MA, which represents justices of the peace in England and Wales, has raised “grave” concerns about the children and social work bill, which returns to the Commons on Tuesday.

The bill came under attack in the Lords before Christmas, where its most controversial proposal, allowing councils to opt out of their legal obligations, was defeated. One criminal justice source described the proposals as a “conveyor belt to catastrophe”.



The crossbench peer David Ramsbotham successfully moved an amendment deleting the clause designed to give ministers extensive powers to sidestep children’s legal rights that have built up over decades.

Ministers are expected, however, to reintroduce it in the Commons this week. The education minister John Nash has defended the proposal on the grounds that the unintended build-up of children’s legal protections over the years has resulted in overregulation, which gets in the way of good social work practice.

The provision would allow ministers to permit councils to suspend specific social care legal obligations for a three-year period, with the possibility of a further three-year extension and the option for a permanent exemption if the innovative practices they enable are deemed a success.

Malcolm Richardson, national chair of the MA, said: “We are concerned that court orders may be unenforceable against a particular local authority where they have been granted an exception under the proposed innovation clause.



“It would be a regrettable waste of court resources if a local authority were ordered to come before the court to account for a failure to adhere to legislation which does not apply to them. Consistency before the court will be very difficult to achieve.”

Safeguarding children is a crucial part of the work of magistrates in the family and youth court jurisdictions. Richardson said: “While the Magistrates’ Association supports the government’s objective to encourage best practice through innovation, the best interests of the child are and must remain the determining factor where duty of care responsibilities towards looked after children are involved.



“Our members will be very concerned at possible implications for both family and youth justice if fundamental protections for children are not guaranteed.”

The organisation Article 39, which campaigns for children’s rights, is one of many groups that have raised concerns about the bill. Its director, Carolyne Willow, said: “Exemptions could severely fracture safeguarding duties, including: the duty to appoint independent advocates; the duty to have a complaints procedure; and the duty to appoint independent visitors. Since when did these become red tape?

“That children and young people have not been consulted is a disgrace. The new clauses do not even require local authorities to consult children and young people prior to requesting the government absolve them of their duties; they must simply consider doing so.”