Children’s Commissioner and Labour join opposition to legislation reducing children in care duties

Story updated 1 May 2020

The Children’s Commissioner for England and Labour have joined a growing chorus of opposition to new legislation that removes or reduces local authority duties to children in care, ostensibly to relieve pressures relating to the coronavirus pandemic.

In a statement issued on Thursday, Anne Longfield said she was “extremely concerned” about the changes, which affect 10 sets of regulations and were introduced via a statutory instrument last week.

She added that she believed they should be revoked because there was not “sufficient justification to introduce them”. Following her comments, Labour’s shadow minister for children, Tulip Siddiq, said on Twitter: “I agree with the Children’s Commissioner for England. Having raised concerns last week and spoken to sector representatives, it seems like children may be put in harm’s way by these changes. They should be revoked.”

The new regulations suspend duties on social workers to visit children every six weeks, remove requirements for care plans to be reviewed six-monthly and relax standards governing children’s homes, fostering and adoption.

They attracted criticism from across the sector when they were published on 23 April.

The amendments came into force the next day without sitting before Parliament for 21 days, as is customary, and lapse on 25 September 2020. They can though be extended by a further statutory instrument.

‘Minimal consultation’

An explanatory memorandum subsequently issued by the Department for Education (DfE) said the government had consulted with representative bodies.

The document mentioned the Association of Directors of Children’s Services (ADCS) and the Local Government Association (LGA), adding that the commissioner had been “informed”. The commissioner’s office moved quickly to clarify that there had been no actual discussion with the DfE.

An ADCS comment on Twitter also denied that the association – which has faced scrutiny over its role – had benefited from active input into which areas of legislation might be appropriate to relax for social workers during the pandemic.

Longfield’s statement went further, attacking the legislative changes for having been implemented “with minimal consultation” and without adherence to the 21-day rule.

The government has claimed waiting would have placed “extraordinary pressure” on local authorities and other providers trying to meet statutory obligation during the coronavirus outbreak.

“However, the reports I have been receiving from local authorities are that staffing for social care is holding up well,” said Longfield, echoing the accounts of many social workers with whom Community Care has spoken in recent weeks.

“It therefore appears that bringing in these regulatory changes to ease excessive strain on a depleted workforce, and to do so without the opportunity for public scrutiny, is not justified,” the commissioner added.

Government guidance on the use of the legislative amendments, which the chief social worker Isabelle Trowler said earlier this week was due imminently, had not been issued at the time this article was published.

‘Constitutional abuse’

In a related development, the statutory instrument also came under cross-party scrutiny in the House of Lords on Thursday.

In an exchange with Baroness Berridge, the minister for the school system, Labour peer Lord Howarth of Newport questioned whether it was a “constitutional abuse for the government to have used the emergency coronavirus legislation to make a major and hugely controversial policy change of a nature that has been explicitly rejected by parliament in 2017”.

Critics of the statutory instrument have pointed out that many of the ways in which duties have been removed or reduced mirror proposals the government attempted – and failed – to introduce as part of the Children and Social Work Act 2017.

Many fear that those measures have now been introduced via the back door under the new secondary legislation.

Article 39, the children’s rights charity that has led opposition to the changes, has invited individuals and organisations to publicly register their objections.

Law firm Irwin Mitchell is also preparing a legal challenge to the new regulations on behalf of Article 39, the legal journalist Catherine Baksi said on Twitter.

In response to peers’ questions, Berridge said the measures were “a minimal change to the procedural requirements in relation to children’s social care” and were “intended to be a temporary measure to enable the limited flexibility that local authorities need at this time” to prioritise resource.

Meanwhile children’s minister Vicky Ford, in a letter to the Guardian, described the changes as “allowing [social workers] to make pragmatic decisions through minor, temporary amendments to regulations, while always keeping children’s safety paramount”.

“I hope these flexibilities will not have to be used,” Ford said in the letter. “But it is my responsibility to those who care for our most vulnerable children and families to provide the necessary tools to make the right decisions during these challenging times.”