Charity blasts legislation relaxing duties to children in care under Covid-19 as ‘destroying safeguards’

Story updated 7 May

A children’s rights charity has slammed legislation to relax councils’ social care duties during the pandemic as a move by government to use coronavirus to “destroy children’s safeguards”.

In a statement issued last night, Carolyne Willow, the director of Article 39, said new statutory instrument – published yesterday and implemented today – amounted to “deregulation on steroids”.

The legislation, which relaxes a range of duties relating to children in care – including around visits by social workers and independent reviews – bypasses the convention that statutory instruments sit before Parliament for 21 days before coming into force. It remains in force until 25 September 2020 but can be extended by a further statutory instrument.

An accompanying document issued by the government last night said the changes were needed to help councils prioritise needs at a time of staffing shortages and increased demand, and that waiting 21 days would “put extraordinary pressure on local authorities, providers and services to try to meet statutory obligations while
continuing to provide care for vulnerable children and young people during the outbreak”.

It said the decision was taken following informal consultation with sector bodies who had said that the changes needed to be implemented urgently. The document said that among those consulted were the Association of Directors of Children’s Services (ADCS) and Ofsted, and that the Children’s Commissioner for England had been informed.

But Willow said: “The idea that local authorities have been clamouring to remove fundamental legal protections from vulnerable children during the middle of a global pandemic is just not credible.

“It is soul-destroying that so much time and effort has been put into systematically eroding the rights of children,” she added.

Willow noted that many of the changes made under the new secondary legislation had been seen before, under 2016 proposals to allow councils to opt out of some duties, which were heavily criticised and then withdrawn by government.

“It’s an insult to children to suggest that Covid-19 is the cause of this,” Willow said. “Having spent hours going through the statutory instrument line-by-line, I haven’t been able to find a single new protection for children. The whole document is about taking away, diminishing and undermining what has been built up for children over many decades.”

Social work visits requirement replaced

Guidance published earlier in April also attracted criticism for stating that councils would not be able to meet all their duties during coronavirus, but not specifying the conditions under which that might be acceptable or legal. The document was also viewed by some as taking an overly relaxed view as to children’s social workers’ needs for personal protective equipment (PPE).

Yesterday’s publication by contrast amends a number of specific areas of legislation.

Some of the key changes are:

• The requirement for social workers to visit children in care a week after they commence a placement, and then at six-week intervals, has been replaced with an instruction that, when visits cannot take place in line with these timescales, they should take place “as soon as is reasonably practicable”. It also allows for ‘visits’ to take place by telephone, video or other electronic means.
• The requirement for reviews of looked-after children’s care, beyond the first two reviews, to take place at least every six months must now also take place where “reasonably practicable”. Early proposals for the Children and Social Work Act 2017 sought to dilute the role of independent reviewing officers (IROs), but these measures were dropped and did not appear in the subsequent Act.
• Standards governing children’s homes have been significantly relaxed, notably by changing stipulations that non-NHS care relating to a child’s development or health is delivered by appropriately skills and experienced staff, who are supervised by suitably skilled and qualified supervisors, by the addition of where “reasonably practicable”. Requirements that homes graded ‘inadequate’ or ‘requires improvement’ are inspected twice-yearly by Ofsted have been removed (though routine social care inspections are currently suspended anyway), while providers are now only required to “use reasonable endeavours” to ensure that monthly independent ‘regulation 44’ visits take place.
• Children in residential care can also be deprived of their liberty and compelled to self-isolate by public health officials, under powers introduced in the Coronavirus Act, if they are suspected to have Covid-19 or have symptoms. Previously, this was only permissible through a court order.
• The maximum timespan of emergency foster care placements has been extended from 16 to 24 weeks, and there is no longer a requirement for temporary foster carers to have a connection with the child.
• The requirement for fostering panels to assess prospective carers has been made optional “in order to help speed up the process in light of increasing demand and where places are required more urgently”. Instead fostering providers are empowered to take decisions based on their own assessment.
• The requirement that adoption agencies establish panels to assess applications and issue advice around the suitability of prospective parents has been removed, while other checks on prospective parents have also been relaxed.

‘Business as usual’

Responding to the concerns, ADCS president Jenny Coles said: “We recognise the concerns raised about the statutory instrument affording some flexibilities to local authorities due to the outbreak of Covid-19, however, it’s important to recognise that all local authorities and their staff will continue working hard to ensure that we can fulfil our statutory responsibilities to children and young people, particularly the most vulnerable.

“The best interests of children and families remain at the heart of any decision made by local authorities.”

Claudia Megele, the chair of the Principal Children and Families Social Worker (PCFSW) Network, which was involved in discussions with the DfE, said that the greater flexibility within statutory guidance would be helpful for practitioners and local authorities.

“To some degree [this] mitigates the pressures experienced by practitioners during this time,” she said. “I have active communication with many PSWs and practitioners and they are more committed than ever to protect children and young people, listen to their voice and aim to achieve their best interests.”

Megele said that as far as possible, all children’s PSWs were aiming to maintain “business as usual” during the pandemic. “Even if a home visit is virtual, they still aim to achieve the same objectives as a physical, face-to-face home visit,” she said.

But Megele also warned that some of the changes could have “significant adverse effect” in the long run, and stressed that their timespan must remain limited.

“[The changes relating to children’s homes] allow the appointment of unqualified staff when there are complex issues and problems that require well-skilled and experienced staff,” she said. “Another example is the de facto suspension of the duty to report infectious diseases to Ofsted’s chief inspector – this is concerning given that we are in the middle of a pandemic and dealing with a highly infectious disease.”

Megele also said she was worried about the watering down of IROs’ duties through the relaxing of timescales for reviews of looked-after children’s care.

“Although the flexibility in timescales is necessary and helpful, there are concerns about de facto suspension of some of the safeguarding responsibilities at a time when children and young people may need our support more than ever before,” she said.

‘Hard-won rights not bureaucratic processes’

In its response to the changes, the British Association of Social Workers warned that “hard won rights in law are not simply bureaucratic processes but exist to protect children and young people and promote their well-being”.

It said that, particularly when compared with the parallel changes to adult social care law – the Care Act easements enacted under the Coronavirus Act 2020 – there was “an absence of a clear, documented and facilitated process for the rationale, structured introduction and delivering of the regulations for local authorities”.

The association added: “The risk is that significant changes are ‘dribbled in’ on a case by case basis with no explicit rationale either within or between local authorities.”

‘No time to trial changes’

June Thoburn, an emeritus professor of social work at the University of East Anglia, said she was worried – in light of comments made by children’s minister Vicky Ford to the education select committee this week that the statutory instrument covered “lower-risk” areas – about the potential for the new amendments to be used as a “trial” for longer-term change.

“No reputable researcher, planner or scientist would think that in this exceptional period one could gather evidence on which to base long-term changes, especially when [they] could profoundly limit the legal rights of children and families living in the most disadvantaged circumstances,” she said.

Thoburn added that she was particularly concerned about the changes regarding fostering and adoption, which she said could be used to speed children’s journeys through the system at a time when court scrutiny was weakened.

Katharine Sacks-Jones, chief executive of children in care charity Become, said: “We are deeply concerned about the implications of these emergency changes to the rights of vulnerable children in care and care leavers. While we understand the pressures local authorities are currently under, the vagueness of these changes risks the safety of those who need protecting the most.

“We are also astonished that the government believes the impact of its amendments are limited given the greater risks vulnerable children and young people could now face. We urge the government to rethink this approach and provide far more clarity. They must also routinely assess and publish the impact of any changes over the next six months. Where the regulations are found to be placing children and young people at risk of harm, we expect the government to reconsider its approach as soon as possible.”

‘Strongest possible safeguards needed’

Meanwhile a spokesperson for the Children’s Commissioner’s Office stressed that while the organisation had been informed of these changes, there had been no consultation with the DfE.

“This is a time when children are particularly vulnerable and local authorities need to be more proactive than ever in reaching out to vulnerable families,” the spokesperson said.

“The government needs to be putting the support in place to help them do this, with the right testing, PPE equipment and support for workforce recruitment,” the spokesperson added. “If there was ever a need to consider any relaxation of regulations as a last resort, it must be accompanied by the strongest possible safeguards, used for the shortest possible time and regularly reviewed by DfE in a very transparent way.”

Labour responded similarly to the regulations, shadow minister for children and early years Tulip Siddiq, saying: “Of course we understand the huge pressures that councils are under at the moment and the need to prioritise the most urgent obligations to those in need. But we must ensure that this significant relaxation of councils’ duties to protect vulnerable children does not increase the risk of harm and is strictly temporary.

“The government must collect and publish information about any statutory obligations that aren’t being met and assess the impact. If these changes lead to bad outcomes for the most vulnerable children, Ministers must immediately reconsider their approach.”

In her appearance before the education select committee on Wednesday, Ford stressed that directors of children’s services should use the new flexibilities “if they need it” and that “safeguarding must come first”.

“They should always do what they would normally do first,” she added, but said the provisions gave councils the flexibility they needed, “on a risk assessed basis”.