Government confirms most lapsed children in care duties will be restored, before latest legal hearing

Court of Appeal to hear challenge against regulations relaxing duties, as government says bulk of legislative changes introduced during lockdown will end on 25 September

Image of the Royal Courts of Justice
The Royal Courts of Justice (image: Cristian Bortes)

The government has confirmed that the bulk of the children in care duties removed during the lockdown will be restored this month, as the challenge against the changes returns to court tomorrow (4 September).

The Court of Appeal will hear charity Article 39’s bid to quash the amendments, introduced during the spring peak of the coronavirus crisis, after the government announced it would retain a small number of the changes until March 2021 and ditch the rest on 25 September, as planned.

The amendments were opposed by the Children’s Commissioner for England, numerous children’s charities, Labour and the British Association of Social Workers, on the grounds that they would reduce safeguards for children in care.

Restored duties

The changes introduced in April include:

  • Making adoption and fostering panels discretionary.
  • Allowing a looked-after child to be temporarily placed with an unconnected person who is not an approved foster carer, and removing the oversight of a local authority nominated officer from the process.
  • 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.

The decision to restore most of the duties follows a consultation in which the DfE also proposed to maintain a short list of flexibilities, contained in a new statutory instrument now laid before Parliament, until 31 March 2021.

‘Deregulation’ on Ofsted inspections criticised

Notably, these include the provision for statutory visits to be conducted virtually in circumstances where children and families are required to self-isolate. A range of respondents to the consultation, which included sector bodies, charities and individual children, commented that future consideration should be given to enabling a “hybrid” contact model, with some young people preferring virtual visits.

The new statutory instrument also provides for adoption and fostering processes to advance where medical reports have been delayed, and grants Ofsted an extended stay on resuming its inspection schedule for children’s services providers.

The latter measure was criticised as “deregulation” in a statement issued this week by Article 39 ahead of its Court of Appeal hearing.

Last month, the High Court dismissed a challenge brought by Article 39 that the Department for Education (DfE) had acted unlawfully in not consulting the Children’s Commissioner for England and other relevant parties before relaxing safeguarding legislation.

But the judge who reviewed the children’s rights charity’s case nonetheless sharply criticised the DfE’s approach. Mrs Justice Lieven warned that had the country not been in the grips of a pandemic, with the potential to radically reduce social care staffing numbers, she “would have been minded” to rule differently.

Warning over lack of consultation on future changes

Following the ruling, Article 39 was granted a fast-track appeal hearing.

“We remain convinced that the Department for Education had sufficient time and opportunity to undertake some form of public consultation, and to seek the views of the Children’s Commissioner,” the statement said of the charity’s ongoing challenge.

“We fear the High Court judgment could be used to justify side-stepping the Children’s Commissioner and public consultation in other circumstances.”

Article 39 also announced that the Court of Appeal had capped its costs – which the charity has been crowdfunding – in the event that its challenge does not succeed, at £10,000.

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2 Responses to Government confirms most lapsed children in care duties will be restored, before latest legal hearing

  1. Chris Sterry September 5, 2020 at 1:18 am #

    The 25 September 2020 can not come soon enough, but this is only referring to actions under the Coronavirus Act 2020 in respect of children, for when will the similar actions for adults with the temporary suspension of the Care Act 2014 be restored.

    Also why only some and not all.

  2. Carolyne Willow September 9, 2020 at 7:51 am #

    The second para of this piece states:

    “The Court of Appeal will hear charity Article 39’s bid to quash the amendments, introduced during the spring peak of the coronavirus crisis, after the government announced it would retain a small number of the changes until March 2021 and ditch the rest on 25 September, as planned.”

    Government may now be saying it planned all along to end the majority of the radical deregulation of children’s safeguards on 25 September, but let’s go back to April…

    In the Explanatory Memorandum published with Statutory Instrument 445 on 23 April (the day before all of the changes came into force), the government said: “the amendments will cease to have effect unless extended”.

    The Child Rights Impact Assessment, dated 15 April but published on 10 June, said: “The period the amendments are in force will only be extended should the public health emergency or its impact last longer”. So the potential time-period for the deletion and dilution of 65 children’s safeguards was anticipated to be not just the duration of the pandemic, but the duration of its impact.

    Perhaps most alarming of all was an exchange in the Education Select Committee on 22 April – the day before Statutory Instrument 445 was published, when there was nothing in the public domain about the Department for Education’s review of statutory duties. David Simmonds MP asked the Children’s Minister:

    “Minister, coming back to this point about statutory duties, a review by the Department has found that some of [the] statutory duties are leading to local authorities having to undertake activities that are not useful or purposeful, in particular, some of the reviews that are required under the statutory duties—help by foster carers, prospective adopters, the children in the care system—are found not to have improved their experience. Is the Department learning, and will it learn, from the suspension of any of those statutory duties, to see where it has exposed the fact that they were not leading to purposeful activity, with a view to dispensing with those statutory duties and freeing people up to do more useful things in future?” 

    The Children’s Minister, Vicky Ford MP, replied:

    “That is exactly the point, David, about why we are laying in place the statutory instrument in order to implement flexibility on certain statutory duties. We are focused on giving that flexibility on the lower risk areas in order to make sure that the experts on the ground can be focused on what they need to do now.”

    The expiry date written into Statutory Instrument 445 was reliant on the Secretary of State’s review of the effectiveness of the amendments.

    Many will recall the deregulation ‘trials’ that were planned to take place via the exemption clauses of the Children and Social Work Bill 2016/17. It is not difficult to see the similarities between those plans, and Statutory Instrument 445. On both occasions it has taken very strong opposition from care experienced people, social workers, lawyers, charities and others to protect the rights of vulnerable children. On 30 April, the Children’s Commissioner for England, the statutory body for children’s rights, called for Statutory Instrument 445 to be revoked. An expiry date of 25 September is nothing for this government to be proud of.