Story updated 17 July 2020.
The government has launched a consultation on reinstating children in care duties removed or relaxed during lockdown, after the children’s minister pledged that the “overwhelming majority” of responsibilitied would return as planned in late September.
In a written statement to Parliament on Tuesday, Vicky Ford said she would also be updating guidance to children’s services to “make clear there should no longer be a need” to use most of the flexibilities, in a context of reduced coronavirus incidence.
“[I] will be writing to local authorities and providers accordingly,” Ford said. “Where they do use flexibilities, local authorities and providers should ensure that they have strong justification.”
The amendments to secondary legislation, which face judicial review later this month, were introduced on 24 April without the customary 21-day period of scrutiny by Parliament. They reduce a wide range of duties on local authorities, including doing away with set timescales by which social workers must visit children in care and carry out reviews.
Opponents, who include the Children’s Commissioner for England, Labour, significant numbers of children’s charities and the British Association of Social Workers England, argue the changes are unnecessary and may do harm to children. Government claims that the changes were brought in response to calls from sector leaders to help manage pressures have also been rejected.
Some organisations have claimed they could pave the way for permanent weakening of children’s rights, pointing to their similarity to changes previous Tory governments unsuccessfully sought to introduce in 2016-17 in the name of providing freedoms to innovate for children’s social care services.
Most councils using flexibilities but ‘infrequently’
In her statement, Ford said monitoring by the Department for Education indicated they were being used “infrequently”. While 87 of 128 councils contacted during June and July by the DfE said they had used at least one amended regulation, Ford said many had used them on limited occasions and in a limited number of areas.
A document subsequently published as part of the consultation, which takes the form of a simple online survey, provides a complete list of the flexibilities used during June and July.
Ford’s statement noted that the most commonly used flexibilities were around fostering and adoption, in particular allowing more leeway as to when prospective carers or adoptive parents’ medical reports had to be considered during the assessment process.
Those measures have been included among three groups of changes the consultation proposes to extend past 25 September, when the statutory instrument bringing in the changes will expire.
The others would allow social workers to continue conducting statutory visits to children in care virtually in certain circumstances, and for Ofsted not to return to inspecting children’s social care in line with prescribed frequencies until March 2021.
While the thrust of Ford’s statement was that all other duties will return to their previous form in September, the government’s consultation also asks respondents to confirm, via a multiple-choice answer, whether they agree, disagree or do not feel strongly either way with this broad course of action.
The consultation also asks people completing it whether they believe additional safeguards need to be implemented on any flexibilities that remain after 25 September.
‘This does not correct the problem’
Campaigners responded mostly negatively to Ford’s statement, saying that changing the guidance was an insufficient move if the amendments were being so little used.
“[Statutory instrument] 445 changed the law,” wrote Kathy Evans, the chief executive of Children England, on Twitter. “The non-statutory guidance the Minister will amend does not correct the problem… it’s legal rights we’re campaigning for, not guidance tweaks.
“It is good to hear most won’t all be extended beyond September, but if they’ve been so rarely used, and were not needed or wanted in practice, why were they rushed through at all, without any parliamentary scrutiny?” Evans added. “And why not overturn them similarly rapidly, right now?”
Meanwhile the shadow children’s minister, Tulip Siddiq, said: “Simply amending guidance was not good enough when it is the law that is preventing children in care from getting the support they need right now.”
She added: “If the Govt believes that these regulations are not necessary, they must be scrapped before summer recess.”
‘These changes are still not necessary’
Anne Longfield, the children’s commissioner for England, said she was “disappointed that the government has not taken the opportunity to revoke these regulations as soon as possible”, adding that she was nonetheless pleased that the vast majority would be revoked in September.
“I maintain my view that these changes are not necessary, particularly as some of the fears around staffing levels in children’s services have not materialised,” Longfield said.
Carolyne Willow, the director of children’s rights charity Article 39, which has led the campaign against the changes, tweeted the “safest and best action for children” remained to scrap the statutory instrument and reinstate the legal protections it amended.
On 27 and 28 July the High Court will conduct a judicial review brought by Article 39 seeking to quash the regulatory changes. The court granted permission for the review on the grounds that the DfE failed to properly consult, that the changes run contrary to primary legislation and that the education secretary Gavin Williamson breached his general duty to promote the wellbeing of children in England in bringing them in.
“The evidence we are submitting to the High Court shows that the ongoing risks to children of maintaining the regulatory changes are very serious indeed,” Willow added in a statement. “Obviously so long as Statutory Instrument 445 remains in place, it is impossible to properly hold local authorities to account for failing to meet legal duties which existed before 24 April.”