Begging to differ with the Baroness—a new legal framework for disabled children’s social care really is needed

and Ana Laura Aiello, School of Law, Leeds University.

Contents

Professor Luke Clements is the Cerebra Professor of Law and Social Justice, and Dr Ana Laura Aiello is the researcher on the Cerebra Legal Entitlements and Problem-solving (LEAP) programme, both at the School of Law, Leeds University. They are well known for their work highlighting parental blame aimed at parents of disabled children, along with the targeting of parents in spurious social care investigations when they reach out for support. Their article today is in response to a lecture given earlier this year in celebration of Family Rights Group’s 50th anniversary, ‘Looking Back in Order to Look Forward’. In the lecture, Baroness Hale of Richmond voiced her disapproval of the Law Commission’s proposal that a new legal framework was needed for disabled children’s social care

Blame is an ever-present experience for parents of disabled children. This is particularly so in their interactions with the statutory services, whose ostensible role is to support them and their families. In such contexts, our research suggests that parental blame is rife. All too often, ‘poor parenting’ is the default assumption for the difficulties parents encounter: poor parenting if their child is school-refusing; poor parenting if the parent seeks social care support; dangerously poor parenting if they have the temerity to disagree with their paediatrician.

Our research demonstrates that blame of this kind has become institutionalised.

“These are, in effect, degradation ceremonies inflicted on families for whom there is not a shred of evidence to suggest poor parenting”

Investigated for asking for help

A clear example of this problem concerns the humiliations that families with disabled children experience when they seek support from children’s social services. The standard children’s services response to requests of this kind is to subject the family to an assessment process designed for parents for whom there is tangible evidence that they are mistreating their children.

It is a process that requires assessors to make unannounced visits to inspect families’ most intimate spaces – their bedrooms and kitchen cupboards – and to interview their children alone. These are, in effect, degradation ceremonies inflicted on families for whom there is not a shred of evidence to suggest poor parenting—families who have simply asked children’s services for the support they are statutorily obliged to provide.

Social workers do this, not because they are callous or blind to the human rights of families, but because the guidance issued by the Department for Education concerning the operation of the Children Act 1989 safeguarding process (Working Together 2023) and their local assessment protocols mandate action of this kind. It is a ‘one size fits all’ assessment process that not only traumatises and alienates families, but it is also utterly counterproductive, deterring families from making contact with the very agencies that have been created to support them.

There is a broad consensus that this approach has to change. This has been voiced (for example) by the Chief Social Worker for Children and Families in England; the independent review of children’s social care (commissioned by the English Secretary of State for Education); the English Government’s SEND Review – and by many eminent researchers. This concern led, in 2023, to the then Minister for Children, Families & Wellbeing asking the Law Commission to undertake a review of the English law relating to children’s social care.

Also read: Act now! Sign and Share the Parliamentary Petition to PROTECT SEND RIGHTS!

The Law Commission findings

The Law Commission, to its great credit, undertook extensive meetings with (among others) parent carers and disabled children’s support groups, spent time at the coal face witnessing the actual workings of the Children 1989 Act and the relevant government guidance. In its report, it considered at length whether the profound difficulties that families were experiencing could be resolved by appropriate changes to the relevant guidance. The report concluded this would not work, and a new legal framework was needed instead.

It is a conclusion endorsed by many of the organisations that work with and for disabled children and their families. The national charity, Contact, which administers the English Government’s Parent Carer Participation Grant for over 150 Parent Carer Forums, consulted with its members on the Law Commission proposals. It reported ‘families shared depressing stories of struggling without support, local authority gatekeeping, and being made to feel guilty for asking for help’. It listed its top two ‘asks for social care law reform’ as:

A single express legal duty to assess the social care needs of disabled children.
A new legal framework for disabled children’s social care.

In similar vein, the first recommendation of a 2025 report by ‘Sense’ (the charity for people with complex disabilities and their families) strongly favoured a change to the law, “…to create a simple and streamlined process for all disabled children to easily access the right support. A new legal duty to assess all disabled children should be set, and a national eligibility threshold should be established to ensure more consistent access to social care across the country.”

Lady Hale’s remarks

Against this backdrop, Baroness Hale of Richmond, in her March 2025 lecture, voiced her disapproval of the Law Commission’s proposal that a new legal framework was needed for disabled children’s social care. The noble Baroness suggested (among other things) this betrayed an assumption that ‘disabled children are more deserving of help than other children in need’; that ‘taking disabled children out of the Children Act will serve to emphasise safeguarding those who are left over’; that ‘giving disabled children a legal right to services would discriminate against other children whose needs are just as great but who don’t happen to be disabled’.

Baroness Hale is not alone. The Association of Directors of Children’s Services (ADCS) has also expressed misgivings about the Law Commission’s proposals, voicing concern that if disabled children are assessed and provided with support under separate provisions, it ‘will lead to duplication’ and create ‘an even more complex picture for families to navigate’. The ADCS accepts, however, that ‘some [disabled] children and families have raised concerns that they feel they are assessed through a protection, rather than help, lens’ but it then suggests ‘that this is a practice issue rather than a legislative one’ —a point to which we return at the conclusion of this article.

Disabled children are not ‘more deserving’ because they are treated differently.

It is with considerable trepidation that we put on record that we beg to differ with the noble Baroness’s analysis on this issue.

The mere fact that disabled children are treated differently to other children in ‘need’ does not, in itself, assume they are deemed to be ‘more deserving of help than other children in need’. What, therefore, is the rationale for suggesting it is ‘wrong’ to have laws that provide rights for disabled people that are not available to non-disabled people? This is precisely what the Children Act 1989 already does—as, indeed, does the Chronically Sick and Disabled Persons Act 1970, the Equality Act 2010, the Welfare Reform Act 2012, the Care Act 2014, to name but a few. They do this for many reasons, not least because a failure to treat differently persons whose situations are significantly different constitutes, without an objective and reasonable justification, unlawful discrimination.

Giving disabled children legal rights to services that are not available to children, “who don’t happen to be disabled,” is not, in any event, (in legal parlance) ‘discriminatory’. Section 13(3) of the Equality Act 2010 makes clear that where the protected characteristic is disability, it is not discrimination simply because a person treats the disabled person more favourably than someone who is not disabled.

Promoted

Disabled children have different needs

Disabled people need services, aids, and physical/administrative adaptations, by virtue of their impairments and the attitudinal and environmental barriers that hinder their full and effective participation in society. Adequate social care support is of fundamental importance to disabled people, and it is difficult to understand why legislation that specifically acknowledges this fact is controversial. Difficult, given the state’s obligation to take action to ‘ameliorate and compensate for the disabilities faced by disabled persons’. Particularly difficult, given that in ratifying the UN Convention on the Rights of Persons with Disabilities (CRPD), the UK promised to uphold these rights. Rights (among much else) to ‘a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community’ (Article 19(b) CRPD).

Inflexible approaches to children’s needs have harmful consequences

There is no incontrovertible reason why only one Act or one department should deal with every aspect of a child’s needs, from child protection to community care. Indeed, today we have different Acts dealing with children’s education, with children’s health and with children’s social care. Consolidation is not a panacea for all known systems’ challenges, and when it is shown to have failed, there is a need to think and act differently.

For those of us who view the 1989 Act through a disabled children and their families’ lens, it is incontestable that their community care support rights have been neglected: lost in the dark shadow of ‘safeguarding’. For reasons that are understandable, the gaze of successive governments has been elsewhere.

To now argue for ‘inclusion’ and the avoidance of ‘duplication’ is to miss the point entirely. Disabled Children and their families should not be included in a ‘one size fits all’ safeguarding-dominated system—unless, of course, the state has cogent evidence that this is necessary. Disabled children and their families have a right to be treated differently. This much has been known for a long time.

A material redraft of the policy and practice guidance could go a considerable way to addressing significant aspects of the injustice and consequential harm such families experience. Successive governments have known this and have failed to act. The Law Commission has looked at the evidence, consulted widely and produced an impressive, thoughtful and reasoned report. In essence, it concludes that in order to simplify and make fairer the law relating to the social care needs of disabled children, Parliament must legislate: must speak where the Government has been – and continues to be – silent.

Law Commission Review: Fixing a ‘bafflingly complex’ disabled children’s social care system

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About
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Professor Luke Clements

Professor Luke Clements at University of Leeds

Luke Clements is the Cerebra Professor of Law and Social Justice at the School of Law, Leeds University.
Luke is also a solicitor with Scott-Moncrieff & Associates Ltd. He has had conduct of many cases before the European Commission and Court of Human Rights.In 1996 he was the solicitor who took the first Roma case to reach the Strasbourg Court Buckley v. UK (1996)
Luke’s academic research and litigation experience is primarily concerned with the rights of people who experience social exclusion, including disabled people and their carers.

He has helped draft and promote a number of Parliamentary Bills aimed at improving the rights of people experiencing social exclusion – including Bills that became the Carers (Recognition and Services) Act 1995 and the Carers (Equal Opportunities) Act 2004.
Luke’s Chair in Law is funded by the disabled children’s charity Cerebra

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