Charity loses legal bid to quash relaxation of children in care duties

Judge criticises DfE failure to consult children's commissioner before introducing regulations reducing local authority responsibilities, but finds omission was lawful given urgency of pandemic

Image of scales of justice and law books (credit: Corgarashu / Adobe Stock)
(credit: Corgarashu / Adobe Stock)

A children’s rights charity has lost its bid to quash the relaxation of several duties to children in care, which were controversially introduced in April at the height of the coronavirus crisis.

In a judgment handed down today, Mrs Justice Lieven found the Department for Education (DfE) had acted lawfully in consulting informally on the changes with children’s services providers, omitting to sound out organisations acting for children’s rights, including the Children’s Commissioner for England as well as Article 39, which brought the case against the government.

But despite accepting that the narrow consultation had been driven by concerns around staving off the potential collapse of children’s services in the event of major staff absences, the judge sharply criticised the DfE for its failure to be more inclusive.

“In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the commissioner was not consulted,” she said.

In comments responding to the judgment, the children’s commissioner, Anne Longfield, reiterated her view that she should have been properly consulted and that the regulatory amends were unnecessary.

Justice Lieven also found that the government had erred in describing the legislative changes – which include relaxing safeguards around fostering and adoption processes, statutory visits and reviews – as relatively inconsequential and merely lightening providers’ administrative burdens.

“These are not minor matters, they are fundamental parts of a scheme of protecting vulnerable children,” she said. “Each has been introduced over time precisely because of the risks that [children in care] face and the need for safeguards to be in place.”

But she dismissed arguments brought by Article 39 that the government had acted contrary to the objectives of primary safeguarding legislation, or that the education secretary Gavin Williamson had neglected his duty to promote children’s welfare.

“In the face of a major crisis in the whole system of children’s social care services because of the large scale staff shortages feared, if flexibility had not been introduced then the risks to [children in care] could have been much greater than the risks from the amendments introduced by the 2020 regulations,” she said.

Article 39 today announced that it would be appealing the judgment.

Government ‘did not recognise’ importance of safeguards

The judicial review of the legislative changes, heard on 27 and 28 July, hinged on three grounds advanced by Article 39’s barrister, Jenni Richards QC.

Proceedings were dominated by the first of these – that the DfE consultation on the legislative changes was unfair and unlawful, and failed to include the voices of children or their representatives, including the children’s commissioner.

Key changes

The regulatory amendments introduced by the government in April affect 65 safeguards relating to children in care, across several pieces of legislation.

Key changes that Article 39’s judicial review highlighted include:

  • Making adoption panels discretionary rather than mandatory.
  • Allowing a looked-after child to be temporarily placed with an unconnected person, rather than with a family member or friend, who is not an approved foster carer, and removing the oversight of a local authority nominated officer from the process.
  • Enabling a child to be placed without nominated-officer approval with a foster carer who is also an approved adopter – thus potentially fast-tracking the fostering-for-adoption of very young children, with life-changing consequences.
  • Removing duties governing visits within fixed timescales to chidren in care, and replacing them with a stipulation that these be conducted “as soon as is reasonably practicable”.
  • Removing the requirement for reviews of looked-after children’s care, beyond the first two reviews, to take place at least every six months, instead stating that these should take place where “reasonably practicable”.
  • Replacing the requirement that independent individuals visit children’s homes at least once a month, with one saying that reasonable endeavours should be made to do so.

On the first morning, Richards set out in detail the almost two-month chronology of the DfE’s informal discussions – with local authorities, the Association of Directors of Children’s Services (ADCS), the Principal Children and Families Social Worker Network and organisations representing private care providers – prior to the amendments coming in.

The length of that lead-in, she argued, put paid to the DfE’s defence that it had consulted imperfectly but in good faith during a time of unprecedented stress, rather than with the intent of avoiding views critical of the changes.

In failing to consult the children’s commissioner or children’s rights charities, Richards said, the government had focused on asking councils what would be helpful in terms of relieving “burdens” on services during the pandemic. Children’s perspectives, and consideration of the impact of changes on them, had been ignored, she said, with the government’s framing of the amendments as merely procedural demonstrating a lack of understanding of the significance of its actions.

“We submit that describing [the amendments] as minor, [removing] burdens and hindrances [is] inapt,” Richards said. “Whatever the challenges of Covid-19, this does not recognise the importance [of these] safeguards.”

The second ground of Article 39’s case was that diluting the safeguards contradicted principles set out in the Children Act 1989 and other key pieces of legislation around promoting children’s best interests.

In making the changes, the third ground added, education secretary Williamson had acted without regard to his duty, under section 7 of the Children and Young Persons Act 2008, to promote the wellbeing of children.

‘Preserving system from collapse’

For the DfE, barrister Galina Ward argued that the essence of the regulatory changes was about preserving children’s safeguarding structures that were already under pressure from collapse due to the pandemic.

The DfE had projected, based on “reasonable worst-case” estimates by the government’s SAGE advisory group, that staff absences could reach as high as 41%, fuelled not just by social worker sickness but by additional factors, such as the disproportionately female workforce being more likely to face additional caring responsibilities.

“The assertion was made [by Richards] that this was for providers not children – but is relieving a burden a different aim from safeguarding children?” she said. “The concern was so the system could continue to function.”

Ward said that by contacting the ADCS and councils, the government had “clearly been considering the best interests of children”. She pointed to some draft suggestions that did not make the final list of amendments as evidencing that genuine consultatory activity had taken place.

Ward added that the changes were always meant to be temporary – with the children’s minister Vicky Ford having recently confirmed most will expire in September – and that the DfE had been clear they should only be used in extremis and had kept their use under review.

“As long as the secretary of state [for education] had it in mind to promote the wellbeing of children, there was no breach of duty,” she said. “These regulations were made for the purpose that organisations could continue to provide for vulnerable children.”

During her questioning of both parties, Justice Lieven focused on the government’s lack of active consultation with the children’s commissioner – first by questioning Richards on whether it was fair to cast children’s rights groups and local authorities as having conflicting perspectives on protecting children.

Lack of consultation with commissioner questioned

Later the judge repeatedly pressed Ward on the matter, saying that she “struggled” – given the government’s claims to have consulted widely given the circumstances – to understand how the individual charged with upholding children’s rights had been omitted.

“It’s not that I don’t have intense sympathy with [hard-pressed] civil servants, but this would have only taken one email,” Justice Lieven said.

“It feels like a decision not to consult the children’s commissioner – she is such an obvious consultee,” the judge added.

Justice Lieven also expressed her unease at how some of the relaxed regulations, although temporary, could in combination severely undermine children’s safety – which she said made her “hair stand on end” as a family court judge.

A key point made by Richards was that the DfE had not consulted about the potential cumulative impact of removing multiple safeguards. The judge agreed that circumstances could arise – for example, that a child could now in theory be placed with a stranger, without the approval of a local authority nominated officer, and with reduced duties in place around visiting – that could be “opening up a disaster”.

But Ward countered that local authorities’ risk assessments of their cases would mitigate any undermining of overall safeguarding where regulatory relaxations had been used.

‘Not to have engaged makes no rational sense’

Responding to the judgment, Article 39’s director, Carolyne Willow, said the charity “firmly rejected” the implication of the judgment “that in times of emergency, despite having a period of two months to make decisions, the only voices government must listen to” are public bodies and service providers.

“These were not split-second decisions the government had to make,” Willow said. “The process of reviewing all children’s social care regulations started in February and it wasn’t until the third week of April that the final plans were laid before Parliament – not to have engaged at all with children and young people, and organisations which promote and protect their rights, makes no rational sense.

“It is with a heavy heart, because we know the cost risk and the work involved for everyone, that we have instructed our legal team to seek an urgent appeal,” Willow added. “We just cannot risk this judgment taking us back decades to a time of paternalism and worse, when children had no separate status and rights to be considered.”

Meanwhile Katharine Sacks-Jones, the chief executive at Become, the national charity for children in care and young care leavers, said she was “very disappointed” with the judgment.

“[The changes] are not in the best interests of children in care and young people and should never have been brought in in the first place,” she said. “While we recognise these are extraordinary times, introducing these measures without properly consulting children’s rights groups and young people themselves is not the right way to approach things.”

Sacks-Jones urged the government to use its planned care review, promised in December, as an opportunity to address the system’s state of crisis, “and to ensure care-experienced young people’s voices and experiences are at the heart of this”.

4 Responses to Charity loses legal bid to quash relaxation of children in care duties

  1. Ray Jones August 7, 2020 at 2:19 pm #

    This judgement is not only disappointing but convoluted. The DfE, as evidenced by the chief social worker, were discussing and shaping the abandonment of rights and safeguards for children for some considerable time but the judicial view rather strangely concluded that this was all a necessary urgent action which prevented consultation with the Children’s Commissioner and organisations which enable children and young people to have a voice. However, we now know that the DfE chose to consult with some but not others. By its secret activities it has compromised as apparently being advocates for the watering down of safeguards for children those private companies and others with whom it selectively made contact. We now know that the chief social worker was central to this activity and its secretiveness. It adds to the view that the chief social worker is heavily embedded and immersed as a conduit for government. It is a government which has undermined the welfare and safety of children and is decimating public services. The role being played by the chief social worker was never as intended or anticipated when the social work profession and the Social Work Task Force proposed and canvassed for one chief social worker to span government departments and to represent and champion social work. What an awful disappointment.

    • Tom J August 10, 2020 at 3:56 pm #

      Agreed!

  2. Chris Sterry August 7, 2020 at 8:04 pm #

    I feel the DoE won by the ‘skin of their teeth’, for they were on very ‘thin ice’.

    Any relaxation of safeguarding measures is a recipe for disaster and shows that this Government have no regard for the safety of children.

    The same could be said of adults, because in similar legislation they also removed areas of the Care Act 2014, again on a temporary basis.

    This is at a time when the already crisis in Social Care was being made even greater and shows this Government complete disregard for both children and adults in Social Care.

    An area which has been purposely kept short of funding for many years and certainly for the last 11 years due to austerity cuts.

    I feel that Social Care should be completely withdrawn from Local Authorities and be placed under health so that health and social care can be run in tandem, thereby cutting much, ‘Red Tape’, duplication of systems, a better use of finance and management, etc.

    I on behalf of my daughter use social care and during this lockdown feel completely abandoned by Adult Social Care and I am someone who knows much about using the services. So, if I felt abandoned there will be many others, both in children’s and adults services.

    Rather than reducing safeguarding legislation, the Government needs to, immediately reverse years of under-funding of social care, otherwise there will be no social care to speak of.

    But funding is but one issue, as there needs to be a complete reversal of Government understanding of Social Care as it is a essential as health care, but is not seen to be by this |Government and many previous Governments be they conservative or Labour.

    Also the public understanding of social care needs to change from that of a service that is not required, that is until they do need it to one that is essential and should be sufficiently funded on a basis that is not as a ‘political football, put a little money in when they wish, but not when they do not wish.

    Social care is in crisis and was well before COVID-19, that is just the latest Government excuse to treat Social Care with disdain.

    Above are some of the issues relating to the crisis in Social Care and there are many others and some of these are mentioned in my petition, Solve the crisis in Social Care, https://you.38degrees.org.uk/petitions/solve-the-crisis-in-social-care

    More information

    1. see the post on my blog, Carer Voice, where Matt Hancock has refused to pay Carers the Real Living Wage https://carervoice.wordpress.com/2020/04/23/matt-hancock-refuses-to-commit-to-paying-care-workers-the-real-living-wage/
    2. I also thank the Government for bringing back their recruitment campaign ‘Every Day is Different’, but it would be even better if they had improved the salary and other conditions as stated in the petition.
    https://you.38degrees.org.uk/petitions/solve-the-crisis-in-social-care
    We all have reasons for reaching out and some of mine are mentioned below
    • With the Government, Social Care is the forgotten service and Yes, the Government as plenty to deal with currently, but more should have been done for Social Care well before the COVID 19 situation
    • This section of care has been devoid of enough money for far too long and austerity measures only compounded this
    • The starting salary for all care workers should be, at least the Real Living Wage and not, as currently the National Living Wage or for some under 25 years The Minimum Wage
    • The rate of pay is abysmal when compared to the responsibilities they undertake It is not just the rate of pay, but many others including
    • Conditions of Service • Expenses
    • Sick Pay schemes
    Lack of funding for Social Care is a major problem and this leads to
    • not only insufficient funding for all forms of Social Care
    • a lack of people wishing to come into the profession due to the abysmal rate of pay
    • partly causing a lack of quality of care being delivered in some areas and other problems
    • causing stress and exhaustion for family members providing care to their relatives, due to the lack of Social Care
    • If the crisis in Social Care is not met, this will then increase the crisis in health.

    My own family and many other families rely on Social Care to help us look after our relatives who have major needs relating to care.

    We all have, over the years, done what we can to help manage these needs of our relatives, but there comes a time when the needs exceed what we ourselves can realistically deliver, hence our, now, reliance on Social Care and without it our relatives needs will not be met.

    You will never know when you maybe in need of Social Care, so please support Social Care, before it is too late

    https://you.38degrees.org.uk/petitions/solve-the-crisis-in-social-care

    Thank you

    Chris

    #care #socialcare #crisis

  3. Chris Sterry August 7, 2020 at 8:28 pm #

    ‘For the DfE, barrister Galina Ward argued that the essence of the regulatory changes was about preserving children’s safeguarding structures that were already under pressure from collapse due to the pandemic’, is that a joke.

    For it appears it is as they are prepared to see the decline of Social Care through lack of finance, but COVID-19 is more in the limelight, so the Government will not wish to be seen to allow decline through COVID-19.

    But when COVID-19 was brought to Care Homes then that was alright, so many double standards.