Month: June 2020

Removal of safeguards for children in care – judicial review given go ahead

Article 39 children’s rights charity has been granted permission for a judicial review of the Department for Education’s removal and dilution of children’s legal protections pushed through overnight in April, under the guise of COVID-19. Given the seriousness of the legal changes, and the vulnerability of the affected children, Article 39 asked the court for the case to be expedited; this has also been agreed and the High Court hearing will take place on 27 and 28 July.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – also known as Statutory Instrument 445 – were laid before Parliament on 23 April and came into force the very next day. They make around 100 changes to 10 sets of children’s social care regulations, supposedly because of COVID-19 though none of the amendments specifically state that safeguards can be relaxed only due to the effects of the pandemic. 

Article 39 counts 65 losses or dilutions of safeguards for children in care, and children who could come into care – affecting many thousands of the most vulnerable children in our country. The safeguards affected include: social worker visits; reviews of children’s welfare in care; independent scrutiny of children’s homes, prospective adoptive parents and foster carers; and the process for placing children in care away from their home areas, including outside of England.

The High Court has granted permission for judicial review on three separate grounds:

  • That the Department for Education failed to consult before making the changes to children’s legal protections;
  • That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
  • That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

Carolyne Willow, Article 39’s Director, said:

“Children in care should be receiving the very best protections we can offer during this global pandemic. Families up and down the country have responded to these very frightening and uncertain times by changing their work and home routines to ensure their children’s needs are properly met. Removing legal protections from children in the care of the state inevitably puts them at great risk, and we know from past tragedies that too often children’s suffering goes hidden until it is too late and the harm has been done.

“Before the pandemic, at least half of local authorities were struggling to meet their statutory children’s social care duties – as judged by Ofsted – and councils have been saying for years that they are desperate for funds to meet the needs of children and families. Ministers should have been focused on ensuring local authorities had the financial support they needed to keep children in care safe and protected, rather than dismantling safeguards which their own statutory guidance states are vital and important.

“As a very small charity, any legal action we take to protect the rights of children involves financial risk and we are delighted the court has agreed to cap our costs should we lose the case.”

Oliver Studdert, partner at Irwin Mitchell, said:

This is a very important legal case which seeks to protect vulnerable children’s rights. In listing the case for a full hearing to be heard in just five weeks’ time, the High Court recognises the urgent and important nature of Article 39’s challenge. The Secretary of State did not comply with legal duties to consult with those most impacted by the significant and wide ranging changes which the Regulations introduced. The children and young people in our care system rely on the support of the local authority, who should care for them as a parent would care for their child. These are some of the most vulnerable people in society, yet these Regulations have removed essential safeguards which were previously deemed necessary to keep them safe. In a time of crisis where many children in the care system need more support, they are being given less.”

Permission was not granted on the fourth ground, relating to Parliamentary procedure and failure of the government to make time for Members of Parliament and Peers to scrutinise the changes prior to them coming into force.

The news comes days after a children’s rights campaigner, John Radoux, received a freedom of information (FOI) response from the Department for Education which stated that no organisations made any request for specific changes to the 10 sets of regulations. This is despite an official government document for Parliament (published in April, with the Regulations) stating that: “Key stakeholders across the children’s social care sector were consulted … [They] provided suggestions for suitable amendments and have subsequently been provided with further detail of the changes that are being made and have provided broad support”. On 5 May, the Education Secretary told Parliament: “On the regulations we have laid, we worked very closely with the ADCS – the Association of Directors of Children’s Services – on how we make sure we do everything we can to maintain the very best support for all children when they are in care. It and the sector have specifically asked us to make sure that some flexibilities are made available to them”. The FOI response also told Radoux it was impossible to give the start and end dates of the consultation which preceded the Regulations because “There was no formal consultation”.  

Notes

1.      Article 39 is represented by Oliver Studdert from Irwin Mitchell, Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.

2.      Statutory instrument 445 – The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – can be found here. It is due to expire on 25 September 2020 “unless extended”. Several provisions will continue beyond this date, irrespective of the actions of Ministers.

3.      The Explanatory Memorandum laid before Parliament can be found here.

4.      Article 39’s summary of the 65 legal safeguards which were removed or diluted without any public consultation or Parliamentary scrutiny and debate can be found here. This includes the list of provisions which will continue even after Statutory Instrument 445 has expired.

5.      John Radoux has tweeted the response he received (on 24 June) to his freedom of information request to the Department for Education. It can be found here. The Education Secretary’s statement to Parliament on 5 May can be found here.

6.      On 10 June, the then Shadow Education Secretary Rebecca Long-Bailey MP led a motion to annul the Regulations, which was defeated by 260 to 123 votes. The Hansard transcript for that is here

We are raising funds to help cover our costs should we lose this case. Please donate if you can, and share with your family, friends and colleagues.

Review calls for ban of pain-inducing restraint

The Ministry of Justice has today published a review of pain-inducing restraint which is authorised for use on children as young as 10 during their journeys to and from custodial institutions, and within child prisons. The review, led by the former Chair of the Youth Justice Board, Charlie Taylor, was set up after legal action by Article 39.

Charlie Taylor critiques the inclusion of pain-inducing restraint in the system in place since 2012, which is called MMPR (Minimising and Managing Physical Restraint):

“I believe that this places the use of pain-inducing techniques on a spectrum that makes it an acceptable and normal response rather than what [it] should be, the absolute exception.”

He said this “has contributed to the overuse of these techniques that I so frequently witnessed during this review”.

Charlie Taylor’s report makes 15 recommendations, including that:

  • The MMPR restraint training programme should be amended to remove the use of pain-inducing techniques from its syllabus (recommendation 7).
  • That pain is not permitted to be used to end long restraints – staff must always try letting go or changing the hold if a restraint is going on too long. The report recommends that there may, however, be emergency situations where the infliction of pain can be justified to prevent serious harm (recommendation 10).
  • The inverted wrist should only be used to gain control of strong and / or fully-grown children when there is no alternative and there is a risk of serious harm. Staff must move to a lower level hold as soon as possible (recommendation 12).
  • That staff be permitted to use a pain-inducing technique to prevent serious physical harm to either children or adults (recommendation 9).
  • Escort staff should no longer be able to use pain on children. However, Charlie Taylor recommends that there may be exceptional circumstances – when a member of staff is acting in self-defence and in an emergency – where pain may be justified (recommendation 14).

Taylor further recommends that restraint should not be permitted for ‘good order and discipline’ during children’s journeys to and from institutions – which was also part of Article 39’s legal challenge against the Ministry of Justice.

Carolyne Willow, Article 39’s Director, said:

“This is a major milestone in child protection, one we have waited 16 years for since a young boy, Adam Rickwood, wrote a note questioning the legitimacy of pain-inducing restraint before he hanged himself in a Serco-run child prison. Adam was just 14 years-old. An officer inflicted a karate-like chop to his nose, using what was then an official restraint technique – the so-called ‘nose distraction’. He knew what was done to him was wrong, and asked the officers restraining him what gave them the right to hit a child in the nose. It has taken our legal action to finally bring some promise of justice for Adam and other children who have suffered needlessly over many years. 

“We need to see the detail of the legal protections which will be put in place to ensure pain-inducing restraint is genuinely prohibited, and that any emergency, self-defence use of pain complies with common law and the UK’s children’s human rights obligations. 

“There have been many in senior positions over the years who have sought to justify the inclusion of pain-inducing restraint in the MMPR system, and the programme that preceded it. I hope they will take this opportunity to reflect on why it has taken so long for detained children to be given, at least on paper, the same protection from these brutal techniques as their peers in health and social care settings.”

The Ministry of Justice has accepted all 15 recommendations.

Background

In October 2018, following a successful crowd-funding appeal, Article 39 issued judicial review proceedings to challenge the Ministry of Justice’s policy of permitting the infliction of pain and unjustified restraint during children’s journeys to and from secure children’s homes. Children can be detained in these locked children’s homes from the age of 10.

Staff within the secure children’s homes are banned from using pain-inducing restraint. This form of restraint is similarly prohibited in other health and social care establishments.

As a result of our legal action, the government appointed Charlie Taylor, who was then Chair of the Youth Justice Board, to review the authorisation and use of pain-inducing restraint in child prisons (young offender institutions and secure training centres) and during detained children’s journeys to and from institutions. The High Court stayed our application for judicial review in January 2019, pending the outcome of Charlie Taylor’s review and an inquiry by Parliament’s Joint Committee on Human Rights.

Meanwhile, on 28 February 2019, the Independent Inquiry into Child Sexual Abuse (IICSA), recommended:

“The Chair and Panel consider that the use of pain compliance techniques should be seen as a form of child abuse, and that it is likely to contribute to a culture of violence, which may increase the risk of child sexual abuse. The Chair and Panel recommend that the Ministry of Justice prohibits the use of pain compliance techniques by withdrawing all policy permitting its use, and setting out that this practice is prohibited by way of regulation.”

In April 2019, the Joint Committee on Human Rights repeated its call for pain-inducing restraint in child prisons to be banned. A letter from the Chair of the Committee clarified that its recommendation included children’s journeys to and from establishments.

Charlie Taylor’s report was completed and submitted to Ministers last July.

At the end of April 2020, the European Committee for the Prevention of Torture repeated its 2009 recommendation “that the application of pain-inducing techniques on juveniles should be abolished in law and practice”. The United Nations Committee on Torture recommended in 2013 that the the UK ban the use of any technique designed to inflict pain on children.

Adam Rickwood photograph

What gives them the right to hit a child in the nose? – Adam Rickwood, aged 14 years
The devastating effects of pain-inducing restraint on children came to the public’s attention in 2004, when 14 year-old Adam Rickwood hanged himself in a child prison run by Serco. Adam had been unlawfully restrained and inflicted with the ‘nose distraction’ technique, which caused his nose to bleed for around an hour. Officers ignored his pleas to be taken to hospital. Before taking his own life, Adam wrote a note for his solicitor explaining that he had asked officers what gave them the right to hit a child in the nose. The technique was later withdrawn though officers continue to be trained and authorised to use other methods which cause children to suffer psychologically and physically.

Article 39 is represented by Mark Scott, Partner at Bhatt Murphy Solicitors, and Dan Squires QC and Tamara Jaber from Matrix Chambers.

Action on children and young people’s advocacy

Article 39’s Advocates4U campaign, run in partnership with Coram Voice, NYAS and the National Association of Independent Reviewing Officers, today launches a progress report on children and young people’s advocacy services.

A year ago, the Children’s Commissioner for England published a report with 10 recommendations for improving children and young people’s access to, and the effectiveness of, independent advocacy services. Read our progress report, with a foreword from Anne Longfield, Children’s Commissioner for England.

Carolyne Willow, Article’s 39’s Director, said:

“Children’s rights and advocacy services have always been about redressing the power imbalance between professionals and children. Independent advocates ensure children and young people are heard, understood and their rights defended. We’re thrilled the Children’s Minister has committed to revise the national advocacy standards and regulations this year, as this will hugely strengthen the support and help children and young people receive. It’s a sad reality that the perspective and feelings of children and young people are often only properly taken into account when they have an independent advocate standing alongside them who knows the law and can skilfully amplify their voices.”

Brigid Robinson, Managing Director Coram Voice, said:

“It has been a year since the Children’s Commissioner’s report and children’s right to independent advocacy is more crucial than ever. Daily our independent advocates support children to make sure their rights are upheld and their voices heard . Coram Voice are keen to see new the standards and a strengthening of children’s access to advocacy; ensuring children get high quality independent advocacy when, and where, they need it.”

Rita Waters, NYAS Chief Executive, said:

“A year on since the Children’s Commissioner’s report and there is still so much to do. Strengthening children’s rights to advocacy is more vital than ever during this time of lockdown and uncertainty. Our independent advocates have been working hard to empower and safeguard children and young people throughout the pandemic, and NYAS are eager to see new standards and consolidated laws to support that work.”

Jon Fayle, co chair of NAIRO, said:

“A strong and genuinely independent advocacy service is essential to help protect and promote the rights of children in care. NAIRO supports this campaign and is pleased that the recommendation if implemented will strengthen and enhance the advocacy service. Advocates are important colleagues of IROs and we need to work closely together in the interests of children in care.”

Safeguards for children in care – House of Commons

Parliament had its first debate yesterday on the dismantling of 65 safeguards for children in care in England. The changes to 10 sets of children’s social care regulations were brought in overnight in April (23/24 April) – seven weeks ago.

Members of Parliament voted 260 to 123 to retain the changes to children’s law. Carolyne Willow, Article 39’s Director, said:

“In the short time allotted to each speaker, the detail of what has been done to children’s safeguards, and the risks this exposes them to, was laid bare. The knowledge and passion of MPs who formerly worked in children’s social care was notable. 

“It was deeply frustrating that the Children’s Minister used so much of her speech to talk broadly about her department’s policy and actions in the face of COVID-19. This was the opportunity for the Minister to give precise information about why her department considered the global pandemic warranted a behind-closed-doors review of all children’s social care legislation, and why each of the safeguards had to be deleted or weakened. There was no such explanation. The repeated references to flexibilities, and the emphasis on primary legislation being untouched, is picking up where the government left off with the exemption clauses of 2016/17. That was when the Department for Education first sought to distinguish between core safeguarding duties, and other legal protections. It’s a false distinction which shows a lack of understanding of the law and how children’s social work has evolved since the 1940s.

“We always knew that the weight of the Commons favours the government, so any chance of reinstating children’s safeguards required Members of Parliament to vote against their party. That didn’t happen yesterday. Indeed, with the pandemic now making the voting process public, what we saw at times was an unedifying stream of grown adults, mostly white men, roaring ‘no’ into the microphone.” 

Background
There was no public consultation or time given to parliamentary scrutiny before the legislative changes. When the House of Lords Secondary Legislation Scrutiny Committee reviewed the changes, it concluded: “This instrument makes extensive changes to a very sensitive policy area”.

Ministers claim the legal changes were made in response to requests from ‘the sector’. However, correspondence disclosed by the Department for Education to Article 39 as part of our legal challenge shows that it was the government which decided to review “all relevant children’s social care regulations” and only after this point did it select a number of organisations and individuals to consult in haste and in private. Public denials that they had asked for changes were made by four of the five organisations named in the Explanatory Memorandum, in the days following the Statutory Instrument 445 coming into force:

Ofsted was the fifth organisation named as having been consulted by the Department for Education. It recently wrote in freedom of information responses: “We did not have sight of the regulations in draft form, nor were we aware what the final version would look like until the regulations were published”.

Examples of safeguards lost or diluted

  1. Social worker visits to children in care – can now be via a phone or video call, yet statutory timescales for such ‘visits’ have effectively been removed. Since 24 April, where a local authority is unable to visit within the statutory timescales, it must ensure visits take place “as soon as is reasonably practicable thereafter“. This has no legal precision, and removes a right that could be readily communicated to children in care. Moreover, there could be many reasons, entirely unrelated to COVID-19, why a local authority considers it is unable to meet the timescales. The duty to visit children in care has been in secondary legislation since 1946, following the manslaughter of 12 year-old Dennis O’Neill in foster care. It has been in primary legislation since 2008.
  2. Six-monthly independent reviews of a child’s care are no longer mandatory. This is another bedrock of children’s social work, introduced after the public inquiry into Dennis O’Neill’s death. Statutory guidance itself emphasises the importance of these reviews to safeguarding and promoting the child’s welfare, and it is often only through this process that children are able to express their own hopes and worries. Critically, it is also the statutory mechanism through which the local authority’s conduct is monitored by the child’s independent reviewing officer.
  3. Adoption agencies are no longer required to establish adoption panels. These panels provide vital checks and balances in the adoption process, providing advice on prospective adopters, ‘matching’ individual children with prospective adopters and critical matters such as post-adoption contact and post-adoption support.
  4. Fostering panels are no longer required. These provide a vital safeguard in approving the suitability of foster carers. The Chief Executive of the Nationwide Association of Fostering Providers has observed: “Where panels are effective and well run, they provide an important level of independent scrutiny for approving new foster carers and making changes for existing foster carers. If they’re not well run, someone in the agency needs to sort that out – it doesn’t make panels a bad idea”.
  5. Senior officer approval for placing children out of their home area is no longer required for any type of local authority foster care, including outside of England (before only connected people, or foster carers approved by the child’s local authority, were exempted from this senior officer scrutiny). At a time of grave concern about increasing rates of children being placed many miles from home, this is a seriously retrograde move.
  6. Senior officer approval is no longer required before placing a child (usually an infant or very young child) in a ‘fostering for adoption’ placement. Such decision-making goes to the heart of a child’s human rights (and the rights of their birth parents). Poor decision-making, lacking in sufficient rigour and scrutiny, at an early stage can have devastating consequences for carers too, should the family court not make a placement order authorising the child to be placed for adoption.
  7. Short breaks can last for 75 days without children having all of the safeguards provided by care planning, reviews and visiting duties. Prior to 24 April, these were provided to children in short breaks (most of whom are disabled) when a single placement lasted longer than 17 days. This followed longstanding concerns about the heightened risk of abuse among disabled children and disabled children’s disproportionate experience of living in institutional settings.
  8. The legal duty on fostering services to report criminal convictions has been diluted. Instead of being required to report the conviction to Ofsted “without delay”, from 24 April the reporting duty is “as soon as is reasonably practicable”.
  9. Children’s homes quality standards, designed to ‘raise the bar’, have been weakened with regard to knowledge, skills and experience of staff, as have monthly independent visits and reports through the use of caveats “as far as reasonably practicable” and “use reasonable endeavours”.
  10. Ofsted inspection frequencies have been deleted, including for children’s homes.

Permanent effects
There are provisions in the Regulations which outlive the expiry date, including any short break made since 24 April. Furthermore, decision-making in respect of individual children, particularly around adoption and out-of-area placements, is likely to have long-lasting if not permanent impact on children.

Achieving earlier goals
Even with an expiry date of 25 September 2020, we have cause to believe that, through these Regulations, the government has achieved the deregulation breakthrough it has been seeking for years.

In May 2016, a Bill (the Children and Social Work Bill) was published with clauses to facilitate local authorities opting-out of any of the children’s social care duties contained in Acts of Parliament or statutory instruments since 1933. This was for a maximum period of six years, and the intention was for these to be trials to test whether the legal protections could be removed altogether across all local authorities in England. There had been no Green or White Papers, and no other public consultation ahead of these clauses being introduced. We considered them to be a grave and unprecedented threat to child protection.

Peers voted in support of an amendment which removed the exemption clauses from the Bill in November 2016. Revised clauses were reinserted when the Bill reached the Commons. Amid widespread opposition – including from the Association of Lawyers for Children, The Law Society, the Family Law Bar Association and Resolution[1] – the Secretary of State for Education added her name to an amendment to delete the clauses in March 2017. They were formally removed from the Bill in April 2017.[2] A statement from the Department for Education explained: “We have listened to concerns … In recognition of this we are not taking forward that particular aspect of the Bill”.

The following year, the Department for Education published a ‘myth busting’ guide which claimed to correct misinterpretations of legal obligations. However, it contained many inaccuracies about the statutory framework. It was only withdrawn after Article 39 began legal proceedings, despite wide criticism among the children’s social care sector.

At least five of the most significant changes made through Statutory Instrument 445 were targets for the exemption clauses and/or the ‘myth busting’ guide: reducing social worker visits, loss of statutory reviews, changes to short break safeguards and foster and adoption panels no longer being mandatory. In addition:

READ THE FULL DEBATE HERE.


[1] These organisations wrote a joint letter to The Times, which concluded “We must not allow these clauses to pass into law” published 22 February 2017.

[2] After Royal Assent on 27 April 2017, the Bill became the Children and Social Work Act 2017.

[3] Question 24: https://committees.parliament.uk/oralevidence/299/pdf/

House of Commons debates the loss of children’s safeguards

On 10 June 2020, seven weeks after the government removed or diluted 65 safeguards for children in care without prior public consultation or time allowed for parliamentary scrutiny, the Labour Party led a vote against the radical changes.

Labour’s motion was to annul (withdraw) The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (Statutory Instrument 445).

  • 123 Members of Parliament supported Labour’s motion which would have reinstated the protections children in care had before 24 April 2020.
  • 260 Members of Parliament voted to keep the government’s changes.

You can read the debate here.

Article 39 has issued judicial proceedings against the Department for Education. Please donate to our legal fund if you can.