More than a month after Statutory Instrument 445 – The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – made around 100 changes to 10 sets of children’s social care regulations, the government has still not published a full list of the safeguards removed or diluted.
These changes were laid before Parliament on 23 April 2020 and came into force on 24 April 2020, without any public consultation or Parliamentary scrutiny and debate.
We identify 65 separate removals or dilutions of children’s legal protections, which are set out below.
RESIDENTIAL FAMILY CENTRES REGULATIONS 2002
1. In Regulation 10 (Health and welfare of residents), the registered person was required to ensure that the residential family centre is conducted so as to (a) promote and make proper provision for the health and welfare of residents and (b) make such provision for the care, treatment, education and supervision of residents as is appropriate to their age and needs. Now the registered person must use reasonable endeavours to ensure the centre is conducted in this way.
2. In Regulation 20 (Complaints), the registered person was required to provide the outcome of a complaint within 28 days. Now the registered person must provide the outcome within 28 days as far as reasonably practicable.
3. In Regulation 25 (Visits by a registered provider), visits were required at least once a month. Now they are as far as reasonably practicable at least once a month.
4. In Regulation 25 (Visits by a registered provider), there was previously a duty to inspect the premises, its daily log and records of any complaints during the monthly visits. Now, these three tasks must be carried out as far as reasonably practicable.
(A further change is made clarifying that any interview undertaken during the Regulation 25 visits may be carried out by telephone, video-link or other electronic means. We have not counted this change since the requirement to interview in private remains unchanged).
THE ADOPTION AGENCIES REGULATIONS 2005
5. In Regulation 4 (Constituting an adoption panel), it was previously mandatory for an adoption agency to constitute one or more adoption panels. This has become optional (may constitute).
6. In Regulation 4 (Constituting an adoption panel), the adoption agency was previously required to ensure that the adoption panel has sufficient members. This has been deleted.
7. In Regulation 6 (Meetings of adoption panel), in addition to the chair or vice-chair and a social worker with at least three years’ experience, adoption panels previously could only conduct their business if three (if a single panel) or four (if a joint panel with another local authority) other members of the adoption panel were present at meetings. When the chair was not present, and the vice-chair was not an independent person, there was a requirement for at least one other panel member to be an independent person. These requirements have been deleted and replaced with a requirement for all meetings to have the chair or vice-chair, the social worker and one independent person.
8. In Regulation 17 (Requirement to prepare a permanence report for children where parents have consented to adoption), adoption agencies were required to send the following to the adoption panel – the child’s permanence report, the child’s health report and any other medical or psychiatric reports and information relating to the health of each of the child’s natural parents. In certain circumstances, health and medical information only had to be sent to the adoption panel if the agency’s medical adviser advised it to do so. Now the adoption agency has the power to decide itself whether to send any of this information to the adoption panel.
9. In Regulation 26 (Other pre-assessment information), the adoption agency was required to obtain a written report from a registered medical practitioner about a prospective adopter. In Regulation 27 (Pre-assessment decision), the adoption agency was required to consider other information, including police checks, before determining whether a prospective adopter is suitable to adopt a child. Now adoption agencies are able to make a pre-assessment decision before obtaining either the written medical report or police checks.
10. Further, in Regulation 26, if the prospective adopter was from another local authority area, the adoption agency was required to seek any relevant information from their home local authority. Now a pre-assessment decision may be made without such information.
(In addition, in Regulation 27, the adoption agency previously had to make a pre-assessment decision within a period of two months. This is now where reasonably practicable within a period of two months. This extended time frame is understandable during the current pandemic, and it has therefore not been counted.)
11. In Regulation 28 (Stage 2 assessment), prospective adopters who had been told they may be suitable to adopt had six months to notify the adoption agency that they wished to continue to Stage 2 assessment. Now there is no time limit.
(In addition, in Regulation 30, the adoption agency was required to notify prospective adopters that their application was to be referred to an adoption panel. This has become where applicable. We have already counted the loss of the adoption panel, so don’t count again here.)
12. In Regulation 30B (Adoption agency decision and notification), the adoption agency had four months to complete their assessment and make a decision after being notified by prospective adopters that they wanted to proceed to a Stage 2 assessment. Now this is within four months where reasonably practicable.
(In addition, in Regulation 30B, prospective adopters had the right to make a request to the Secretary of State for a review by an independent review mechanism. This has been removed when a decision not to proceed has been made by the adoption agency on the basis of information received from medical and police checks. This is a consequential amendment so we do not count it here.)
13. In Regulation 30D (Review and termination of approval), adoption agencies had to review the approval of (the majority of) prospective adopters each year and, if they concluded that the prospective adopter may no longer be suitable to adopt a child, send a written report of the reasons why to an adoption panel. This referral to an adoption panel is now optional.
14. In Regulation 30E (Duties of the adoption agency in relation to intercountry adoption), adoption agencies were required to send the Secretary of State all the information and documents sent to, and the record of proceedings of, adoption panels in respect of intercountry adoption applications. This has become where applicable, because adoption panels are now discretionary even in intercountry adoption applications.
15. In Regulation 31 (Proposed placement / matching of children with prospective adopters), where an adoption agency was considering placing a particular child with a particular prospective adopter, the placement had to be referred to an adoption panel. This is now optional.
16. In Regulation 36 (Reviews), where an adoption agency was authorised to place a child for adoption, but the child has not yet been placed, a review had to be carried out of the child’s welfare and circumstances after three months and then every six months. Now, if the adoption agency decides that it is not reasonably practicable to undertake such a review, it is not required to do so – unless it considers a review is necessary to safeguard and promote the child’s welfare.
CHILDREN (PRIVATE ARRANGEMENTS FOR FOSTERING) REGULATIONS 2005
17. In Regulation 4 (Action to be taken by local authority on receipt of notification of proposal to foster a child privately), there was a duty before to visit premises, speak to the proposed private foster carers, visit and speak to the child alone (unless considered inappropriate), visit and speak to (if practicable) the child’s parents and consider a range of matters relating to the child’s welfare within seven working days. This has been changed to within seven working days or as soon as is reasonably practicable.
18. In Regulation 7 (Action to be taken by local authority on receipt of notification about a child being fostered privately), there was a duty before to visit premises, speak to the private foster carers, visit and speak to the child alone (unless considered inappropriate), visit and speak to (if practicable) the child’s parents and consider a range of matters relating to the child’s welfare within seven working days. This has been changed to within seven working days or as soon as is reasonably practicable.
19. In Regulation 8 (Subsequent visits to children who are being fostered privately), the local authority had a duty to visit every privately fostered child in their area every six weeks during the first year, and then every 12 weeks. This has been changed to at intervals of 6 and 12 weeks respectively where reasonably practicable.
CHILDREN ACT 1989 REPRESENTATIONS PROCEDURE (ENGLAND) REGULATIONS 2006
20. In Regulation 19 (Review panel), where a panel of three independent persons considered a child’s (or adult’s) social care complaint, they were required to meet within 30 working days. This has been changed to within 30 working days or as soon as is reasonably practicable.
21. In Regulation 20 (Recommendations), where the independent panel had met, it was required to send its report to the local authority, the complainant, the independent person who formerly investigated the complaint and any other relevant person within 5 working days. This has been changed to within 5 working days or as soon as is reasonably practicable.
22. In Regulation 20, the local authority and the independent person who formerly investigated the complaint had to provide a response to the panel’s report within 15 working days. This has been changed to within 15 working days or as soon as is reasonably practicable.
EDUCATION AND INSPECTIONS ACT 2006 (INSPECTION OF LOCAL AUTHORITIES) REGULATIONS 2007
23. In Regulation 3 (Publication of a written statement of proposed action), local authorities were required after receiving an Ofsted inspection report to publish a written statement of action within 70 working days by sending it to Ofsted’s Chief Inspector, the Education Secretary, relevant people or bodies within the local authority, as well as make it available free of charge at its offices or provide it to a member of the public for a reasonable fee. This has been changed to 70 working days or as soon as is reasonably practicable.
CARE PLANNING, PLACEMENT AND CASE REVIEW (ENGLAND) REGULATIONS 2010
24. In Regulation 5 (Preparation and content of the care plan), this required that the child’s care plan included their placement plan (unless the child was in the care of the local authority but not provided with accommodation by them), and the child’s wishes and feelings about the local authority’s arrangements to meet their needs and their placement plan. The references to the child’s placement plan has been changed to once prepared (see change to Regulation 9 below) for the placement plan).
25. In Regulation 9 (Placement plan), if the local authority could not prepare a placement plan before a child was moved into a placement, it had to prepare such a plan within five working days. This has been changed to as soon as is reasonably practicable.
26. In Regulation 11 (Placement decision), a decision to place a child outside their home local authority (including outside England) had to be approved by a nominated officer or a director of children’s services – unless this placement was with a connected person or one of the local authority’s foster parents. The reference to connected person has been deleted and replaced with any local authority foster parent, meaning nominated officer or director of children’s services approval is not required for any out of home area placements with local authority foster parents.
27. In Regulation 18 (Decision to place a child with a parent or other person with parental responsibility or a person for whom a court has made a child arrangements order), required the local authority to prepare a placement plan before the child was placed. This requirement has been deleted.
28. In Regulation 19 (Circumstances in which a child may be placed with a parent or other person with parental responsibility or a person for whom a court has made a child arrangements order before assessment completed), an assessment of and review of the child’s case was required within ten working days of the placement starting. This has become as soon as soon as is reasonably practicable after the child’s placement.
29. In Regulation 22A (Placement with a local authority foster parent who is also a prospective adopter), a child could only be placed with a local authority foster parent who was also an approved prospective adopter on the approval of a nominated officer. This requirement has been deleted.
30. In Regulation 22A (Placement with a local authority foster parent who is also a prospective adopter), a child could only be placed with a local authority foster parent once a placement plan had been prepared. This requirement has been deleted.
31. In Regulation 22B (Conditions to be complied with before placing a child in a long term foster placement), the local authority had to prepare a placement plan for the child. This requirement has been deleted.
32. In Regulation 23 (Emergency placement with a local authority foster parent), an emergency placement of a child with a local authority foster parent was permitted, even if the foster carer approval did not match the child’s needs / circumstances, so long as the placement lasted no longer than six working days. This has been extended to 24 weeks.
33. In Regulation 24 (Temporary approval), a local authority was able to temporarily approve as a foster parent a relative, friend or other person connected to the child for a period of 16 weeks where they met certain requirements. This has been deleted, which means any person can be approved as a temporary foster parent where they meet certain requirements.
34. In Regulation 24 (Temporary approval), a local authority was able to temporarily approve as a foster parent a relative, friend or other person connected to the child for a period of 16 weeks where they met certain requirements. As well as changing this from a connected person, the period of temporary approval has been extended to 24 weeks.
35. In Regulation 28 (Frequency of visits), as part of fulfilling their duties to supervise looked after children’s welfare, local authorities were required to visit children within one week of the start of any new placement, then at least every six weeks for the first year of the placement and then at intervals of every three months if it’s planned that the child will stay in that placement until they are 18 (every six weeks otherwise). For children in long-term foster placements, visits could be twice a year with the child’s agreement. Now, where the local authority is unable to visit within these statutory timescales, it must ensure visits take place as soon as is reasonably practicable thereafter.
36. In addition to the above changes on the frequency of visits, Regulation 28 has been amended to permit visits to be conducted by telephone, video-link or other electronic means. (While we understand and support this change, we have counted it as a dilution because no provision has been made in Regulation 28 for this alternative means of visiting to be conducted in private – whereas the equivalent amendment to the Children’s Homes Regulations – see the text in italics after 60 below – specifies “to speak privately over the telephone, a video-link or other electronic method”).
37. In Regulation 33 (Timing of reviews), local authorities were required to ensure a review of the child’s welfare after 20 working days of the child becoming looked after, then three months after the first review, followed by six-monthly reviews. The requirement for six monthly reviews after the first and second reviews has been deleted and replaced with where reasonably practicable thereafter.
(This change to regulation 33(2) also affects the duty of local authorities to carry out a review if requested by an independent reviewing officer (Regulation 33(3)(a)) or a child (Regulation 33(3)(ac)) since the power to make such a request is tied to the times specified, and the six-monthly time period has been deleted).
38. In Regulation 36 (The role of the IRO), independent reviewing officers (IROs) had the power to adjourn a review meeting on one occasion for up to 20 working days if insufficient information had been provided by the child’s local authority. Now the IRO may adjourn the meeting for any, unspecified reason and on more than one occasion (no upper limit specified).
39. Regulation 47C (Application of these Regulations with modifications to children on remand) required a placement plan to be prepared for a child within five working days of them being remanded to local authority accommodation. This has been changed to as soon as is reasonably practicable.
40. In Regulation 48 (Application of these Regulations with modifications to short breaks), care planning and review safeguards applied to children in short breaks once a single placement lasted longer than 17 days (or exceeded a total of 75 days in a 12-month period). The 17-day condition has been deleted. Full care planning safeguards now only apply after 75 days.
41. In Regulation 48 (Application of these Regulations with modifications to short breaks), where children did not receive full care planning safeguards, the local authority was required to visit the child at regular intervals agreed between the IRO and the child’s parents but at least within three months of the start of the first placement, or as soon as practicable thereafter, and every six months thereafter, for as long as the short breaks continued. These (already modified) minimum timescales for visits have been deleted. (The regular intervals requirement remains).
(We have not counted a further change to visits under Regulation 48, which permits them to be conducted by telephone, video-link or other electronic means, but does not specify that this should be conducted in private. This is because the majority of short breaks are made in respect of disabled children and the likelihood is that many of these children would have a carer present during any such visits).
42. In Regulation 48 (Application of these Regulations with modifications to short breaks), where children did not receive full care planning safeguards, the local authority was required to review the child’s welfare within three months of the start of the first placement and then at intervals of not more than six months. These (already modified) timescales for reviews have been deleted and replaced with as soon as is reasonably practicable from the start of the first placement, and at regular intervals thereafter.
FOSTERING SERVICES (ENGLAND) REGULATIONS 2011
43. In Regulation 4 (Review of statement of purpose and children’s guide), fostering services were required to notify Ofsted’s Chief Inspector within 28 days of any changes to their statement of purpose and children’s guide. This has been deleted and replaced with as soon as is reasonably practicable.
44. In Regulation 6 (Appointment of manager), fostering services were required to notify Ofsted’s Chief Inspector without delay of the name of the person appointed to manage their fostering service. This has been deleted and replaced with as soon as is reasonably practicable.
45. In Regulation 9 (Notification of offences), where a registered person or manager of a fostering service was convicted of any criminal offence, in England and Wales or elsewhere, they were required to notify Ofsted’s Chief Inspector in writing without delay of the date and place of the conviction, the offence/s and the penalty. The “without delay” requirement has been deleted and replaced with as soon as is reasonably practicable.
46. In Regulation 10 (Manager), local authorities were required to notify without delay Ofsted’s Chief Inspector of the name of their fostering service manager. This has been deleted and replaced with as soon as is reasonably practicable.
47. In Regulation 23 (Constitution and membership of fostering panel), fostering service providers were required to constitute one or more fostering panels. This is now optional.
48. In Regulation 23 (Constitution and membership of fostering panel), fostering service providers were required to ensure fostering panels had sufficient members. This has been deleted.
49. In Regulation 24 (Meetings of fostering panel), fostering panels were only permitted to conduct their business when the chair was present, one member who is a social worker of at least three years’ experience was present and three or four (if a joint panel with one or more other fostering providers) other members were present. If the chair was not present and the vice-chair was not independent of the service, at least one other panel member was required to be independent of the service. Now fostering panel meetings only need the chair, social worker member and one other independent person. When the chair is not present, and the vice-chair is not independent, only one other independent person is required (as opposed to three or four members plus an additional independent person).
50. In Regulation 25 (Functions of fostering panel),fostering panels were required to give advice on matters related to the fostering service, including the termination of foster parent approval. They were also required to oversee the conduct of fostering assessments. These requirements have become optional.
51. In Regulation 26 (Assessment of prospective foster parents), fostering service providers were required to obtain information about the prospective foster parent’s health (including a medical report) and an enhanced criminal record certificate for anyone in the household aged 18 or over. Fostering service providers are now permitted to proceed to Stage 2 of a fostering assessment without this medical and criminal record information.
(In addition, in Regulation 27, a fostering service provider was not allowed to approve a foster parent until the fostering panel had considered the application. The fostering service provider was required to take into account the recommendation of the fostering panel. These provisions have become optional. We have already counted the loss of the mandatory fostering panel, so do not count it again here.)
52. In Regulation 28 (Reviews and terminations of approval), fostering service providers were required to review the approval of each foster parent – not more than a year after approval and thereafter whenever they considered it necessary but at intervals of not more than a year. These timescales have been deleted and replaced with a requirement that a review must, where reasonably practicable, take place not more than a year after approval, and thereafter whenever the fostering service provider consider it necessary.
(In Regulation 30, the fostering service provider was required to maintain a care record relating to foster parents and others, which included documents submitted to the fostering panel. This has been amended now that fostering panels are no longer mandatory. We have already counted the loss of the fostering panel, so do not count it again here.)
53. In Regulation 42 (Application of these Regulations with modifications to short breaks), the fostering service regulations applied to children in short breaks once a single placement lasted longer than 17 days (or exceeded a total of 75 days in a 12-month period). The 17-day condition has been deleted.
54. In Schedule 3, fostering service providers were required in Stage 1 to obtain information relating to prospective foster parents and other members of their household and family. This included details of their health supported by a medical report. The requirement for a medical report has been deleted.
55. In Schedule 7, concerning notification of certain events to Ofsted’s Chief inspector, fostering service providers were required to inform Ofsted of an outbreak of an infectious disease which a general practitioner considered was sufficiently serious to be notified. This requirement has been deleted.
CHILDREN ACT 2004 (JOINT AREA REVIEWS) REGULATIONS 2015
56. In Regulation 4 (Written statement of proposed action), local authorities were required to make a written statement of proposed action within 70 working days of receiving a statutory notice from Ofsted’s Chief Inspector. This has been changed to within 70 working days or as soon as is reasonably practicable.
CHILDREN’S HOMES (ENGLAND) REGULATIONS 2015
57. In Regulation 6 (The quality and purpose of care standard), children’s homes providers were required to ensure that any care that is arranged or provided to a child relating to their physical, intellectual, emotional, social or behavioural development or health (though not as part of a health service) is delivered by a person who has the experience, knowledge and skills to deliver the care and under the supervision of a person who is appropriately skilled and qualified to supervise that care. This is now preceded by the caveat as far as reasonably practicable.
58. In Regulation 8 (The education standard), the registered person of a children’s home was required to ensure that staff:
- help each child to achieve the child’s education and training targets, as recorded in the child’s relevant plans;
- support each child’s learning and development, including helping the child to develop independent study skills and, where appropriate, helping the child to complete independent study;
- understand the barriers to learning that each child may face and take appropriate action to help the child to overcome any such barriers;
- help each child to understand the importance and value of education, learning, training and employment; promote opportunities for each child to learn informally;
- maintain regular contact with each child’s education and training provider, including engaging with the provider and the placing authority to support the child’s education and training and to maximise the child’s achievement;
- raise any need for further assessment or specialist provision in relation to a child with the child’s education or training provider and the child’s placing authority;
- help a child who is excluded from school, or who is of compulsory school age but not attending school, to access educational and training support throughout the period of exclusion or non-attendance and to return to school as soon as possible;
- help each child who is above compulsory school age to participate in further education, training or employment and to prepare for future care, education or employment;
- help each child to attend education or training in accordance with the expectations in the child’s relevant plans; and that each child has access to appropriate equipment, facilities and resources to support the child’s learning.
This requirement is now preceded by the caveat use reasonable endeavours to.
59. In Regulation 20 (Restraint and deprivation of liberty), the statutory safeguards relating to the deprivation of liberty of children did not apply where a court had authorised such deprivation. This has been extended to or in accordance with an exercise of powers under Schedule 21 to the Coronavirus Act 2020.
(Schedule 21 powers include directions, instructions, requirements or restrictions placed on potentially infected persons).
60. In Regulation 44 (Contact and access to communications), registered persons of children’s homes were required to ensure that an independent person visited the children’s home at least once a month. This has been changed to use reasonable endeavours to ensure that an independent person visits the children’s home at least once each month.
(We support the linked change to Regulation 22, in respect of the duty to ensure suitable facilities for children to meet in private family members, social workers, lawyers, advocates or others. This requirement has been extended to include ensuring children can speak privately over the telephone, a video-link or other electronic communication.)
HER MAJESTY’S CHIEF INSPECTOR OF EDUCATION, CHILDREN’S SERVICES AND SKILLS (FEES AND FREQUENCY OF INSPECTIONS) (CHILDREN’S HOMES ETC) REGULATIONS 2015
61. In Regulation 27 (Frequency of inspections), Ofsted’s Chief Inspector was required to ensure children’s homes were inspected twice a year (unless they had in the past year been judged good or outstanding – in which case, they had to be inspected annually). This requirement has been deleted.
62. In Regulation 27 (Frequency of inspections), Ofsted’s Chief Inspector was required to ensure residential family centres were inspected at least once in every three year period. This requirement has been deleted.
63. In Regulation 27 (Frequency of inspections), Ofsted’s Chief Inspector was required to ensure voluntary adoption agencies and adoption support agencies were inspected at least once in every three year period. This requirement has been deleted.
64. In Regulation 27 (Frequency of inspections), Ofsted’s Chief Inspector was required to ensure fostering agencies were inspected at least once in every three year period. This requirement has been deleted.
65. In Regulation 27 (Frequency of inspections), Ofsted’s Chief Inspector was required to ensure holiday schemes for disabled children were inspected at least once in every year. This requirement has been deleted.
CHANGES WHICH CONTINUE EVEN AFTER THE STATUTORY INSTRUMENT HAS EXPIRED
Statutory Instrument 445 is due to expire on 25 September 2020, unless extended by Ministers. However, some changes continue to have effect even after the expiry date, as below:
- Assessments of the suitability of prospective adopters which began before SI 445 expires must continue beyond the expiry date as if the revised Regulations were still in force.
- Assessments of the suitability of prospective foster carers which began before SI 445 expires must continue beyond the expiry date as if the revised Regulations were still in force.
- Any notifications in respect of a child being privately fostered may proceed beyond the expiry date as if the revised Regulations were still in force.
- Any representations made using the children’s social care statutory procedure which go on to the independent panel stage (even after the Regulations have expired) may be handled beyond the expiry date as if the revised Regulations were still in force.
- Any placement of a child with their parent or someone with parental responsibility under Regulation 19 of The Care Planning, Placement and Case Review (England) Regulations 2010 may proceed beyond the expiry date as if the revised Regulations were still in force.
- Any emergency foster placement made under the amended version of Regulation 23 of The Care Planning, Placement and Case Review (England) Regulations 2010 must continue beyond the expiry date as if the Regulations were still in force.
- Any temporary approval of foster parents made under the amended version of Regulation 24 of The Care Planning, Placement and Case Review (England) Regulations 2010 started when SI 445 was in force must proceed beyond the expiry date as if the revised Regulations were still in force.
- For any child who had a short break placement from 24 April 2020, the changes to short break safeguards continue beyond the expiry date as if the revised Regulations were still in force.
- Where a child is being deprived of their liberty in accordance with powers under the Coronavirus Act, the Regulations continue beyond the expiry date as if the revised Regulations were still in force.