Children’s charity launches legal bid to quash relaxation of children in care duties

Article 39 applies for judicial review of statutory instrument reducing councils' responsibilities, enacted without Parliamentary scrutiny in April

Image of girl embracing foster mother (credit: fizkes / Adobe Stock)
(credit: fizkes / Adobe Stock)

A children’s rights charity has commenced legal action seeking to quash government regulations reducing local authority duties to children in care.

Article 39 has applied to the High Court for a judicial review of secondary legislation that dilutes or removes a series of duties, including around the arrangements under which social workers must visit children in care and carry out reviews of plans.

It came into force on 24 April after being laid before Parliament for just one day, contrary to the customary 21-day period of scrutiny. Its introduction has attracted broad opposition, including from Labour and the Children’s Commissioner for England, as well as many charities working with children, the British Association of Social Workers England and many individual social workers.

The statutory instrument was introduced by the Department for Education (DfE) on the justification that councils urgently needed flexibility during the coronavirus pandemic to deal with workforce or capacity shortages or increased demand. It is due to expire on 25 September 2020, but can be extended by a further statutory instrument.

The regulatory changes do away, in a range of instances, with strict timescales and other standards, replacing them with wording that they should be followed where “reasonably practicable”. They also dispense with the requirement for panels to be convened to assess prospective foster carers and adoptive parents.

Extension fears

Campaigners say the measures contained in the statutory instrument mirror proposals made and rejected during the passage of the Children and Social Work Act 2017, and fear they could pave the way for longer-term changes reducing councils’ duties to children.

A recent report by the House of Lords’ Secondary Legislation Scrutiny Committee included a statement from the DfE that it “intends, as required, to monitor the use of [the] provisions and “in doing so it will want to take account of any longer-term lessons for the operation of the children’s social care system”.

Various sector bodies, including the Association of Directors of Children’s Services (ADCS), have denied being actively consulted by the government on the legislative amendments. This is despite a memorandum accompanying the statutory instrument stating that the department had consulted informally with the ADCS and Ofsted and that this had “helped identify which changes would be most helpful to local authorities during the outbreak”.

Many local authorities have also said they have no plans to make use of the new ‘relaxations’ afforded them. But there are fears that a wave of children’s services referrals as lockdown eases, coupled with financial constraints, could see this picture change.

‘Government’s actions are dangerous’

Carolyne Willow, Article 39’s director, said: “The legal protections snatched away were carefully built up from the 1940s onwards, and the government’s actions are dangerous. Its own statutory guidance explains in fine detail why children need the safeguards now gone.”

Willow said government documents released to Article 39 showed the legislative changes had been driven by central government, rather than by requests from within the sector, and deliberately kept secret.

“No consultation occurred with children and young people affected by the government’s actions, and the Children’s Commissioner for England, who is required by law to promote and protect the rights of children, especially those in care, was only informed of the plans after they had been approved by the Children’s Minister,” Willow said. “Children’s invisibility in the corridors of power is one of the principal reasons they have their own statutory body to champion their interests, so not properly involving the commissioner adds insult to injury.”

Oliver Studdert, partner at Irwin Mitchell, which is representing Article 39, said the regulatory changes had been “rushed through with little, if any, attempt to consider the views” of children and young people in care.

“These are some of the most vulnerable people in society,” Studdert said. “They rely on the state to keep them safe, yet these regulations remove essential safeguards and expose them to risk.”

The Department for Education issued a statement on 1 May defending the changes, in which children’s minister Vicky Ford said: “As a responsible government, we must protect services and enable them to respond to the greatest need. We have worked across the children’s social care sector to develop legislation to do so. In cases where social workers cannot work as they did before, we are allowing them to make pragmatic decisions through minor, temporary amendments to regulations, while always keeping children’s safety paramount.”

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