Children's Wellbeing and Schools Bill
JUSTICE has briefed Peers on the human rights obligations of outsourced children’s care providers for the Children’s Wellbeing and Childrens Bill debate.
There is uncertainty about the human rights obligations of children’s care providers, and we are urging the Government to amend the Bill to clarify the position. This follows our successful work on the Mental Health Bill and our 2024 report ‘Beyond the Blame Game: a responsible and rights-centred approach to government contracting’.
The Human Rights Act
The Human Rights Act is an essential tool for individuals to hold public authorities to account. Without direct accountability against providers, children (and their families) may have no direct remedy for human rights violations against the care provider. Human rights obligations also improve the quality of services in the first instance.
However, the definition of ‘public authority’ in section 6 (3) HRA has been narrowly interpreted by the courts. In the leading case of YL v Birmingham City Council, the House of Lords found that a private care home was not a public authority despite YL’s placement there being funded by a local authority. The recent case of Sammut has demonstrated that attempts by successive Governments to address this accountability gap for publicly funded care, most recently section 73 Care Act 2014, has been insufficient. Individuals are slipping through the cracks.
As JUSTICE’s 2024 report highlighted, over the last few decades, there has been a large expansion of core government services contracted out to the private sector. For example, around 80% of children’s care homes are run by for-profit providers and there are concerns about the quality of such care.
Why an amendment is needed
A recent High Court decision has highlighted why this amendment is needed. Mr. Sammut, a man with chronic and treatment resistant schizophrenia, was transferred from a secure hospital to a private nursing facility where he was deprived of his liberty without proper authorisation. He sadly died and an inquest found that his death was related to his anti-psychotic medication. His care and treatment were funded by a combination of Manchester City Council and an NHS Trust. However, his family’s human rights claim against the provider was struck out as the provider was found to not be a public authority. His care was outside the scope of s73 Care Act 2014.
Since s73 Care Act 2014 does not apply to children, we are concerned that there is a lack of clarity about whether children’s care providers will have direct legal obligations under the Human Rights Act. The Children’s Wellbeing and Schools Bill is an important opportunity to provide legal certainty and ensure that that all providers of children’s services commissioned by local authorities – whether in social care, education or disability, are treated as public authorities under the Human Rights Act.
We are grateful to Lord Watson of Invergowrie for raising this issue at Committee stage and call on the Government to address this issue ahead of report stage, as they have done recently for outsourced mental healthcare and treatment in the Mental Health Bill.
JUSTICE Briefing - House of Lords Committee Stage - September 2025
Children's Wellbeing and Schools Bill Briefing March 2025
House of Lords Second Reading debate briefing April 2025