Children’s rights Lawyers urge politicians to reconsider making ‘care experience’ a protected characteristic

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Sarah Woosey

Interim Head of Education Law

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Children’s Rights Lawyers have urged politicians to reconsider their decision not to provide additional protection to young people and children in care by adding ‘care experience’ as a protected characteristic.

The call to action comes ahead of a debate which is being held by the Senedd, further to the Welsh Government’s response to the Children, Young People and Education Committee (CYPEC) report entitled “If not now, then when? Radical reform for care-experienced children and young people”.

Published in May 2023, the report made a series of recommendations to improve the experience of looked after children in Wales, including an overhaul of ‘Before Care’, ‘In Care’ and ‘After Care’ services.

Changes included placing a legal duty on local authorities to calculate maximum safe caseloads for children’s services social workers, mandating all foster carers to register directly with Social Care Wales, and extending the threshold for statutory support provided to all care leavers from 21 to 25.

But, while the Welsh Government has reiterated its ‘steadfast’ commitment to delivering its vision for transforming children’s services in Wales, leading legal experts have raised concerns about some of the key recommendations made by the Committee which have only partially been accepted or have been rejected – including adding ‘care experience’ as a protected characteristic.

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Our Solicitor's Comments

Elisa Jenkins is an Education and Children’s Rights Solicitor at law firm Simpson Millar who provided evidence as a care experienced individual to the Children, Young People and Education Committee as part of their consultation.

Commenting on the Government’s response to the report she said: "It is positive to see Welsh Government taking some steps to improve the experiences of children and young people in care further to the recommendations made by CYPEC, and it is particularly positive to see their willingness to introduce legislation to raise the upper threshold for the support offered to care leaver until they are 21, to 25. 

“However, as the report, which was published in May shows, the number of looked after children in Wales increased by 22.9% between 2013 and 2022. It also says that around a quarter of children in care will have had two or more placements in the last year alone. 

“Furthermore, we know that fewer than 1 in 5 children looked after will achieve 5 or more A* - C grades at GCSE, including English/Welsh and maths, that up to 1 in every 4 care experienced children will be homeless at the age of 18, and that around a quarter of care experienced parents will have at least one of their own children taken off them.

“This is not a marginalised problem, it’s an issue that affects more than a fifth of the population. 

“It is therefore concerning to see that there are numerous recommendations that the Welsh Government has only partially accepted, or completely rejected, including the CYPEC’s recommendation of pushing the UK Government to amend section 4 of the Equalities Act 2012 to include 'care experienced' as a protected characteristic. 

“The Welsh Government states that it is committed to eradicating the stigma facing those who are care experienced, however, at present there is no legal protection preventing care experienced individuals from being discriminated against.

The Welsh Government's Response

The Welsh Government has since responded to the report.

It made 27 recommendations and 12 "radical reforms", including placing a duty on councils to calculate a maximum safe caseload for social workers in children's services.

Of the 27 recommendations, only five have been accepted. Seven have been rejected and 15 have been accepted in part.

The accepted ones are as follows:

  1. The Welsh Government must work with local authorities, members of the judiciary and other relevant stakeholders to continue the roll-out of the FDAC model across Wales, subject to a successful evaluation of the Cardiff and Vale of Glamorgan pilot. 
  2. As soon as possible, and no later than December 2023, the Welsh Government should consult with Estyn and other key stakeholders to examine the most recent attainment results relating to care experienced children, ascertain the extent to which schools are following the Welsh Government’s guidance as set out in its 2017 document ‘Making a Difference’, the barriers that schools face in implementing that guidance, and set out how the Welsh Government and others will improve the school experiences of care experienced children.
  3. The Welsh Government must carry out a review of the support offered to young people by Young Person’s Advisors. The review should consider: the concerns set out in this report relating to Young Person’s Advisors and the pathway planning process; the likely impacts on the collective workload of Young Person’s Advisors of the reforms set out in this report (particularly those relating to upper age limit for support for care leavers and those relating to opt-out advocacy services for children in care and care leavers); and any action required as a result. 

A number of teams within Simpson Millar assist those in care or previously in care to access the support they need. Our team of lawyers are approachable, empathetic and knowledgeable. They will give you advice in an open, honest and straightforward way. If you wish to discuss your case with us then call 0808 239 9764 or request a callback.


Sarah Woosey Profile Picture

Sarah Woosey

Interim Head of Education Law

Areas of Expertise:
Education Law

Sarah re-joined Simpson Millar in 2018 having previously trained at the firm before spending a number of years working for a different national firm. She has a number of years’ experience in a range of Education Law and Social Care issues and has focused particularly on getting suitable education and/or services for children and young adults with a wide range of Special Educational Needs and/or disabilities.

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