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.”
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:
- The Association of Directors of Children’s Services said in a tweet: “We were informed of the list of their proposed changes rather than asked to submit our own proposals”.
- The Local Government Association said: “We were told consideration was being given to what changes might be made, but we weren’t consulted on them”.
- The Chair of the Principal Children & Families Social Worker (PCFSW) Network said: “I don’t know who was consulted but myself & network were not”.
- In an online exchange with Article 39’s Director, the Chief Executive of the Independent Children’s Homes Association (ICHA) said: “… all I asked for was clarity re the use of virtual means of visiting and meeting. I had no sight of proposed changes, my first awareness of them was when they were published. ICHA does not see the need for the changes other than the clarification that we originally sought”.
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
- 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.
- 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.
- 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.
- 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”.
- 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.
- 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.
- 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.
- 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”.
- 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”.
- Ofsted inspection frequencies have been deleted, including for children’s homes.
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 – 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. 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:
- On 22 April, while giving oral evidence before the Education Select Committee, the Children’s Minister was asked by David Simmonds MP: “coming back to this point about statutory duties, a review by the Department has found that some of 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 Minister 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”.
- The Explanatory Memorandum, published 23 April, states: “Beyond monitoring these regulation amendments, the Department will be considering their longer-term impact and what future action may be required once the changes are no longer in force”.
- On 7 May, the House of Lords Secondary legislation Committee observed: “The Committee understands the need for temporary measures during the pandemic but is fundamentally concerned about the changes potentially being made permanent by the Secretary of State. These are issues that the House may wish to explore”. It noted that, “We asked DfE whether any assessment of the impact would be published. The Department explained that it “intends, as required, to monitor the use of provisions within this Statutory Instrument. The form of this monitoring is to be determined. In doing so it will want to take account of any longer-term lessons for the operation of the children’s social care system”. The Committee concluded: “Given the concerns that have been raised about the changes and their potential impact on vulnerable children, the Committee calls on the Department to be open and transparent in its assessment of any longer-term impact and lessons that may be learned, and to involve the Children’s Commissioner’s and other relevant organisations in this process. The House may wish to press the Minister for an assurance that this will happen” [Emphasis in original].
- On 3 June, Ofsted responded to two freedom of information requests which asked for copies of its correspondence with the Department for Education. It refused to provide the information and relied on a policy development exemption, stating that: “The latest regulations are due to expire on 25 September 2020. Ofsted and the DfE will be engaged in continuing discussions to develop suitable regulations to succeed these. No final decision has yet been made on the content of those future regulations. As such we believe the policy making process, associated with the information you have requested, to be ongoing until such time as replacement regulations have been implemented”.
- In the debate yesterday (10 June), the Children’s Minister said: “The changes will expire on 25 September. There is no plan to extend them. If there is a need for further flexibility, it will be on a case-by-case basis after discussion with stakeholders and subject to full parliamentary process. The regulation changes are temporary. They are not permanent. I am committed to keeping a close eye on the situation and will report back to Parliament before the summer recess”.
 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.
 After Royal Assent on 27 April 2017, the Bill became the Children and Social Work Act 2017.