Coronavirus guidance update stresses duties to children but bid to scrap relaxation of law intensifies

Story updated Monday 11 May

The government has amended and significantly expanded its guidance to children’s services practitioners operating during the coronavirus pandemic.

A document published on 6 May by the Department for Education (DfE) marks a significant change of tone from its predecessor, issued in April, which drew widespread criticism for the latitude it appeared to grant councils and regulated providers to not meet statutory duties.

That initial guidance note proceeded from the assumption that local authorities and others would be unable to meet responsibilities to children and families during the coronavirus outbreak. But, contrary to the approach taken for adults’ services through the so-called Care Act easements, it did not specify a framework for easing them.

The revised guidance acknowledges children’s services may face difficulties, but underlines that their primary legislative framework and associated responsibilities remain unchanged. It states that recent, highly contentious changes to reduce certain duties through secondary legislation – which form the basis of most expanded sections of the guidance – must only be met in extremis.

“Amendments have been made to provide for extra flexibility in some circumstances, but this should only be used when absolutely necessary, with senior management oversight, and must be consistent with the overarching safeguarding and welfare duties that remain in place,” it says.

Yet the government has made no concession to opponents of the regulations – who include the Children’s Commissioner for England, Labour and several children’s charities – for whom the changes are unjustifiable, have been rushed through with no Parliamentary scrutiny, have scant sector support and risk harming children.

Some opponents of the amendments, which the government say are temporary, fear the coronavirus pandemic is being used as a smokescreen to usher in measures that permanently weakening duties to children in care. Moves by the previous Conservative administration, in 2016-17, to adopt similar changes were rejected by Parliament and then dropped.

A new report by the House of Lords’ Secondary Legislation Scrutiny Committee, to whom the DfE admitted there could be “longer-term lessons for the operation of the children’s social care system” based on experiences under the revised regulations, is likely to sharpen those fears.

Children’s rights charity Article 39 has now formally threatened a legal challenge to the statutory instrument, issued on 23 April, which contains the changes.

Carolyne Willow, Article 39’s director, described the statutory instrument as an “outrageous attack on safeguards which have been built up over 70 years, often in response to terrible failures to protect children”.

The Labour leader, Keir Starmer, has also tabled a parliamentary motion calling for the regulatory amendments to be annulled.

In Parliament on 5 May, the education secretary, Gavin Williamson, stuck to the DfE’s line that it had worked closely with the Association of Directors of Children’s Services and that the ADCS and other sector bodies had requested “flexibilities” in order to maintain support for children in care. However, the ADCS and other sector leadership bodies deny that they were consulted on the specific changes made.

Clearer expectations around coronavirus practice

Unlike with the statutory instrument, third parties including ADCS have acknowledged their input into the DfE’s new guidance note, which offers stronger and clearer language around what is expected of social workers and other practitioners than its predecessor:

• Around visits to children and families, the document says there should be “no blanket changes to social work practice”, while acknowledging Covid-19 may necessitate “some different ways of working which should always be risk-based”.
• Advice around personal protective equipment (PPE), which many considered to be too lax in the initial document, now states practitioners should wear masks and, if necessary, eye protection if they consider themselves, or other individuals, to be at risk. Previously, the guidance had said that PPE would not be required unless the person being visited was symptomatic or had a confirmed diagnosis of Covid-19.
• The section around whether vulnerable children should be encouraged to attend school, which had said that there is an expectation that they will continue to attend, has been softened to acknowledge the “finely balanced” factors, such as the child’s health vulnerabilities, that may affect such decisions. Amid very low attendance at school among this group, which includes all children with a social worker, practitioners have told Community Care their employers have mostly taken a light-touch approach to encouraging attendance, given parents’ and carers’ justified fears around spreading coronavirus.
• The expectation that multi-agency meetings such as child protection conferences should go ahead has been reinforced with explicit reference to video conferencing solutions many have been putting in place.
• The new guidance stresses local authorities should continue to meet statutory responsibilities towards care leavers – an area that the earlier document had widely been considered to dangerously dilute. “We expect local authorities to take account of coronavirus when making decisions about leaving care, and to ensure no one has to leave care during this period if it is not in their best interests,” it says.
• The document addresses some of the areas in the statutory instrument that have caused most alarm. For example, it sets expectations that care plan reviews – which, under the instrument, need only take place “where reasonably practicable”, after the first two reviews, rather than every six months, as previously – are still carried out regularly. It also acknowledges that these – as well as fostering and adoption panels, which have been made optional under the instrument – are in many cases being carried out virtually.
• Around children’s homes, the guidance stipulates that depriving young people suspected of being infected with Covid-19 of their liberty, via powers granted under the Coronavirus Act, can only be authorised via public health officers. It also seeks to mitigate regulatory changes that reduce a strict requirement that non-NHS care relating to a child’s development or health be delivered by appropriately skilled and experienced staff to one where this must happen “as far as reasonably practicable”. “We are clear that at no time should staff be employed or used in the care of children without suitable skills or training,” the guidance note says.

‘Relief’ over restoration of care leaver duties

Certain elements of the new note were welcomed cautiously on its publication.

Rachel Knowles, the head of legal practice at the UCL Centre for Access to Justice, who had brought a legal challenge to the guidance’s first draft, said on Twitter that she was “in particular relieved to see all duties for care leavers reinstated”.

Meanwhile Jane Collins and Sarah Anderson, directors of the Independent Foster Carers’ Alliance – who met on 5 May with children’s minister Vicky Ford – said in a statement they were “pleased the minister is engaging directly with foster carers and that our input is clearly reflected” in the guidance.

Collins recently told Community Care that some councils had been exerting pressure on foster carers to send children to school, while others had been pushed into face-to-face adoption introductions – which the guidance suggests may need to be postponed.

But they and others stressed that the improved guidance needed to be seen in the overarching context of safeguards being weakened by April’s regulatory changes. Collins and Anderson’s statement added that they remained “deeply concerned” by the removal of the requirement to hold fostering panels.

“This seems counterproductive at a time when it is widely acknowledged that there will be a surge in child protection referrals and a need for well-trained, experienced and skilled foster carers to meet that demand and avoid the need for unregulated accommodation,” the statement said.

Meanwhile Robin Sen, a social work lecturer at Sheffield University and critic of the changes, noted on Twitter that sections of the guidance dealing with the amendments merely stated they would remain in place “so long as is needed”, without elaboration on how that need would be determined. They are currently due to expire on 25 September but can be extended by ministers through another statutory instrument.

‘Consultation’ dispute

As the guidance was being published, debate continued to rage as to who outside of the government had in fact suggested that the measures contained in the statutory instrument were needed.

Williamson’s response in Parliament on Tuesday to Labour’s shadow children’s minister, Tulip Siddiq, remained unclear on whether specific bodies had requested particular changes. The ADCS has maintained that it did not actively contribute to the amendments.

“Although we had initial high-level discussions about some flexibilities in advance of lockdown, ADCS was not directly consulted on the detailed changes recently made to regulations relating to children’s social care,” a spokesperson said. “We have however provided feedback on the accompanying guidance.”

The Local Government Association has made similar remarks. Meanwhile, Peter Sandiford, the chief executive of the Independent Children’s Homes Association, told Community Care he had merely advised the DfE that statutory visits must be able to be carried out virtually. Sandiford said he had no advance sight of the legislative changes.

The DfE declined to respond to specific questions from Community Care as to who had requested what, and whether ADCS’s statement was accurate. A spokesperson simply reiterated that the department had worked with the children’s social care sector to develop the amendments.

The letter before action issued by Article 39 calls on the government to “withdraw the statutory instrument with immediate effect and to give an assurance that any new regulations will be subject to proper consultation, Parliamentary scrutiny and children’s human rights and equality impact assessments”.

Legal firm Irwin Mitchell, which is representing the charity, has given the government 14 days to respond.