Outsourcing child protection

Local authorities need to consider a range of issues if they are to outsource child protection services. Laura Broadhead and Sarah Erwin Jones examine the challenges.

With increasing budgetary constraints and pressure upon local authorities to provide adequate services to protect children, it comes as no surprise that many local authorities are looking at how their children’s services can be delivered differently. Increasingly local authorities are considering whether their children’s services can be delivered by the private and third sectors.

In principle the idea of outsourcing the delivery of children’s services to the private and third sectors can, in the right circumstances, deliver not only service improvement but also a cost saving. However, in the current environment where civil claims arising out of social care setting are increasingly common, we must be alert to the prospect of future claims being brought directly against the local authority not withstanding that the service itself is contracted to another body. It is critical that this is taken into account before contracting the delivery to other bodies or there is a risk that the local authority will end up meeting the cost of such claims in any event.

It is important that this is considered in the wake of the well documented case of Woodland v Essex County Council. Following the principles set out in this case, it is clear that the duty of care that is owed by the local authority to the children in its care is often non-delegable. As such, regardless of who provides the services, liability for any negligence or failure to protect may well lie with the local authority.

It is therefore essential that, prior to entering into any contract for the outsourcing of child protection services (or indeed any other similar services), clear and unambiguous agreements are made as to the nature of the relationship. These should explicitly address claims management if any claims arise in the future. Some aspects to consider include:

• Who will handle any claims arising? Ultimately the duty of care to children in the area is owed by the local authority. They may wish to remain in control of any potential claims made by such children and therefore may elect to handle all incoming claims themselves. Conversely, if an agreement is made between parties that the third party will be responsible for the making of any payments in relation to a claim, then it is likely that they may wish to retain some control of the matter and therefore, may want to handle claims themselves.
• Do insurance policies in place adequately cover the outsourced agreement? It will be equally important to ensure that the party responsible for making payments has adequate insurance provision in place. As part of this it will be important that policy wording is carefully checked to ensure that any potential claims will be covered. It will be important that such checks are made regularly.
• Is a covenant required between parties? When an agreement is made between parties that the third party will be responsible for making any payments upon a civil claim it will be necessary for this agreement to be reflected in the contract made between the two.
• Is further security required? In some cases it may be necessary for further security to be taken, for example a parent company guarantee.

The above is not an exhaustive list of considerations but goes to show the complexity of the relationship that contracting out creates. 

The privatisation of child protection is not an exact science. The agreements made between third parties and various local authorities are likely to differ depending on local need. It will be important that those involved obtain adequate legal advice and enquire about insurance products that are available at the outset of such relationship.  

If such considerations are not made and adequate protection is not put in place at the commencement of an outsourcing relationship, then the short term cost saving measure of privatising child protection may be lost entirely to the long term potential costs of damages in civil claims.  

Laura Broadhead and Sarah Erwin Jones are members of the Social Care Team at Browne Jacobson.