Devolving child decision-making pilot programme: general guidance
Proposed changes to the National Referral Mechanism move the decision making from the hands of the Home Office into those of Local Authorities. The pilot scheme testing these changes began in 2021 for an initial 12 months and has now been expanded until later this year.
Since the NRM’s inception in 2009, numbers of child referrals have increased, with the highest number of referrals ever received in the most recently reported quarter, July to September 2022. Amongst children, this increase is attributed to a growing number of County Lines referrals.
The Pilot transplants the decision-making process from the SCA to the Local Authority where the child was referred, or where they are resident. Multi-agency panels within these authorities will make both the reasonable grounds and conclusive grounds decision, using a panel of local experts which must comprise social workers, the police, and representatives from health bodies – more professionals may be involved. This places responsibility for the decision with those who already have safeguarding duties towards the child.
There were initially 10 local authorities, spread across the country selected for the initial pilot with more areas to be introduced this year. See here for the list of the current authorities involved.
How does it work?
- Pilot authorities make decisions for all children in their area who are over 100 days away from their 18th birthday;
- The Reasonable Grounds and Conclusive Grounds Decisions will take place through meetings with representation from social services, health services, and the police;
- The chair should not be the lead social worker involved in the child’s case to avoid any conflict of interest;
- A Reasonable Grounds Decision should be made no later than 45 days from referral;
- A Conclusive Grounds Decision may be (and generally is) made at the initial Reasonable Grounds meeting where there is sufficient evidence;
- In any event, a Conclusive Grounds Decision should be made within 90 days of referral;
- Where an authority considers there is insufficient evidence for a positive Conclusive Grounds Decision, they must notify the Home Office of the assessment and provide a date for a follow up meeting within 45 days.
- The decisions of the devolved panels are subject to robust quality assurance monitoring from the Home Office and all panel members have had Home Office Training in threshold decision making.
From the perspective of child welfare, this is would seem to be a sensible and progressive development. Local communities are best placed to protect the welfare of children, with the caveat that they need the funding and resources to do so effectively. Of all NRM referrals made for children, Local Authorities far exceeded all other first responders (the second highest being the police and others significantly fewer).
The Pilot Programme does streamline the NRM. The feeling amongst Local Authorities is that the nationalised NRM system did not work – not only were there substantial delays in decision making, but often there were insufficient reasons given. The Pilot has the potential to erase these problems, so far decision making has been quick with time limits adhered to. The professionals making the decision have a vested interest in that child, in many cases, they will have referred them.
Although it may form part of the representations made by the defence to the prosecution before trial, the NRM decision is no longer admissible at trial. Despite the statutory defence at section 45 Modern Slavery Act 2015, SCA decisions are not admissible as expert evidence (R v Brecani  EWCA Crim 731). The bottom line is that legal professionals should waste no time in instructing an independent expert. The extent to which the Pilot will affect the criminal justice process remains to be seen, there are reasons for optimism.
It was specifically the SCA in Brecani that the Court of Appeal deemed could not give expert evidence, because SCA caseworkers were administrators, and could not be said to be experts on modern slavery or human trafficking . The decision makers in the Pilot are social workers and police officers, professionals with clear understanding of modern slavery and human trafficking, and who would ordinarily be capable of acting as expert witnesses. This could well result in NCA decisions, or at least those in the Pilot, becoming admissible as a matter of course.
Another issue in Brecani was that the NRM decision had to be founded on the defendant’s version of the facts, and therefore could not be relied upon – that decision being based on “patently partial and incomplete evidence.”  and . This issue is not obviously overcome by the panel in the Pilot Programme, although if, as it is anticipated, the panels will review a wider body of evidence and give clear reasons for their decisions, then the court may find the basis for these decisions more satisfactory.
Even if local board decisions cannot be admitted as expert evidence, there is a glimmer of hope for young victims of trafficking. It may be that swifter decisions being made by a panel of experts make the CPS less likely to charge. The CPS may be more susceptible to applications to dismiss on the basis of such evidence, especially as the police must be involved in the decision making itself. Evidence of these panel decisions, expert or not, should serve useful to legal professionals. However, these potential benefits may be negated by the broader changes recently brought in by the Nationality and Boarders Act 2022, which threaten our ability to have many children assessed by the NRM framework at all (see our recent update on these developments here).
As a whole, the Pilot is encouraging for children who are victims of trafficking and modern slavery in and out of the criminal justice system. Practitioners would do well to familiarise themselves with the Pilot as it expands, as NRM decisions may well become a valuable tool going forward.
By Bethany Baggaley, Pupil Barrister, 25 Bedford Row