Controversial new legislation has brought in sweeping changes for children in care

by Charlotte Hughes, East Anglian Chambers

The Adoption and Children (Coronavirus) (Amendments) Regulations 2020 were published on 23 April 2020, and came into force on 24 April 2020. They apply to England only. The Regulations expire on 25th September 2020 (reg. 14(1)) but may be renewed subject to a review by the Secretary of State (reg. 13).

Summary of key changes

• Social worker visits to children placed in care can now be via a phone call, video-link or other electronic means and the 6-weekly duty to visit has been replaced with visits “as soon as is reasonably practicable”. (reg 8 (13))
• Six-monthly independent reviews of a child’s care (commonly known as Looked After Children reviews) are no longer mandatory and may now take place “where reasonably practicable”. (reg. 8(14))*
• There is no longer a requirement for a fostering for adoption placement to be approved by a ‘nominated officer’ from the local authority; this is with a stated intention of ensuring that placements are able to  “proceed swiftly” without “procedural delays”. Timescales for formalising a placement plan have been relaxed to allow placements to “proceed without delay”.
• Relaxation of notification duties in respect of criminal offences. (reg. 9(4)) The law currently requires providers, managers or directors of fostering services who are convicted of a criminal offence to notify Ofsted’s Chief Inspector in writing without delay. This is diluted to “as soon as is reasonably practicable”. This is an astonishing change, since the ability to notify in writing via email is not at all affected by COVID-19.
• Placement plans are no longer necessary for kinship care and assessments of emergency kinship placements are now to take place to “as soon as is reasonably practicable” rather than within 10 working days. (reg. 8)*
• Children’s homes are required to meet quality standards, in place since April 2015, “as far as reasonably practicable”. (reg. 11(2))
• Ofsted’s duty to inspect children’s homes twice a year no longer exists. (reg. 12) Ofsted continues to have statutory powers to inspect in accordance with the Care Standards Act 2000.
• Monthly independent visits and reports on children’s homes are no longer mandatory. Providers will be required to “use reasonable endeavours” to ensure they occur. (reg. 11(6))
• ‘Emergency’ foster care placements may last for nearly 6 months, rather than 16 weeks (as set out in the Care Planning, Placement and Case Review (England) Regulations 2010). Temporary placement with a local authority foster parent who has been approved in accordance with the Fostering Services Regulations 2002 – even where the terms of that approval are not consistent with the placement – can now be for up to 24 weeks, rather than 6 days. (reg. 8(10) )
• Local authorities are no longer required to visit within 7 days of receiving notification about a child being fostered privately. They must now visit  “as soon as is reasonably practicable”. (reg. 5(3))
• Agencies are no longer required to establish adoption panels (reg. 4), and fostering panels have become optional (reg. 9)*
• Independent review panels in children’s social care complaints must be convened and their decision sent out “as soon as reasonably practicable” (instead of 30 and 5 working days respectively).  (reg. 6)
• The instrument allows children’s homes to enforce a temporary deprivation of liberty where powers under the Coronavirus Act 2020 in relation to isolation are being exercised in respect of a young person who is infectious or suspected of being infectious with coronavirus (COVID-19) to prevent the virus from spreading. (reg. 11(4))

Why are the amendments controversial?

The amendments marked * have previously been suggested by ministers trying to bring about legal reform in 2016/17. Peers rejected the government’s plans when the legislation was voted on in the House of Lords. The plans were abandoned amidst huge opposition from parliamentarians, care experienced people, social workers, children’s lawyers and charities.

These are far-reaching changes introduced and passed within 48 hours, (22nd – 24th April), with minimal Parliamentary scrutiny or oversight. A declaration of compatibility with ‘Convention rights’ within the meaning of the Human Rights Act 1998 is made in all cases where secondary legislation amends primary legislation. The Regulations contain no such declaration. The safeguards against the continuation of these changes after 26th September 2020 seem minimal (a review by the Secretary of State).

A great deal of the text of the Regulations uses the phrase ‘as soon as is reasonably practicable’. This means that while the Regulations lower ‘the floor’ of some key standards, local authorities are perfectly at liberty to maintain the current (higher) standards. Those with ongoing cases may wish to press the relevant local authority for a commitment to timescales for visits or reviews, in the hope of offering their clients some reassurance.

There is little to encourage consistency between different local authorities and it is likely we will see different practices emerging in different areas over the coming weeks and months. This will be a time of great uncertainty not just for professionals working in this area but also for the parents and relatives of children who are involved in the care system. Social workers may well welcome some flexibility in their duties during these undeniably difficult times, but many are also likely to be concerned about the removal of safeguards for children in very vulnerable situations.

These changes are widespread and will need to be monitored carefully at all levels to ensure they do not lead to adverse effects. Keir Starmer, MP, the leader of the Labour Party, has tabled a ‘prayer’ motion to be presented before the Queen, asking for the amendments to be annulled. We’ll have to watch this space to see if anything will come of that. Children & Young People Now reports that the last time such a motion was passed in the House of Commons was in 1979.

Further detail on the changes can be found on the CoramBAAF site and on the Article 39 site. 

The 10 Regulations that have been amended are set out in Family Law Week.

The above article is intended to be a helpful summary to interested practitioners and is not intended to constitute legal advice. All views expressed are the author’s own and are not those of Women in Family law.