Category: Children’s rights in care

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

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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.

Legal action launched to protect children in care

Children’s rights charity Article 39 has today (5 June) applied to the High Court for a judicial review of changes made to children’s social care law by the Department for Education. This was done without any public consultation or time given for parliamentary scrutiny and debate. 

We are raising funds to help our legal action. Please donate if you can.

On 23 April 2020, Statutory Instrument 445 was laid before Parliament. This was the first public announcement of government plans to make around 100 changes to 10 sets of children’s social care regulations. All of the changes came into force the very next day, on 24 April 2020, affecting many thousands of vulnerable children.

We count 65 separate removals or dilutions of children’s legal protections – affecting children in care, and children who could come into care. The changes apply only to England; the Welsh government has stated it has no plans to amend its legislation in relation to vulnerable children.

Carolyne Willow, Article 39’s Director, said:

“It comes to something when a small charity has to take the government to court to reinstate safeguards for children in the care of the state. Local authorities have parental responsibility for three-quarters of the children affected by this radical deregulation. The legal protections snatched away were carefully built up from the 1940s onwards, and the government’s actions are dangerous. Its own statutory guidance explains in fine detail why children need the safeguards now gone. They were the culmination of decades of children’s experiences, testimony, learning and positive social work development. Terrible failures to protect children are also a significant part of that history. 

“Ministers have claimed people working in children’s social care asked for these extensive legal changes, but documents released to us show this was driven by central government and deliberately kept secret. Civil servants briefed Ministers that some may view their actions as watering down children’s safeguards, and said robust media responses were being prepared accordingly. Ministers were advised to announce a wider package of support to coincide with the changes to children’s law.

“No consultation occurred with children and young people affected by the government’s actions, and the Children’s Commissioner for England, who is required by law to promote and protect the rights of children, especially those in care, was only informed of the plans after they had been approved by the Children’s Minister. Children’s invisibility in the corridors of power is one of the principal reasons they have their own statutory body to champion their interests, so not properly involving the Commissioner adds insult to injury.” 

Oliver Studdert, partner at Irwin Mitchell, said:

“These Regulations were rushed through with little, if any, attempt to consider the views of those most impacted by the significant and wide-ranging changes which they introduced – children and young people in our care system. These are some of the most vulnerable people in society. They rely on the state to keep them safe, yet these Regulations remove essential safeguards and expose them to risk. In bringing this claim and challenging the lawfulness of the Regulations, Article 39 is giving them a voice.”

Our grounds for legal challenge concentrate on six areas of policy in particular:

  • The dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory;
  • The removal of the duty to hold six-monthly reviews of children in care;
  • The loss of safeguards for children placed out of their home area with people who are not connected to them;
  • The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
  • The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
  • The dilution of the duty on children’s homes to ensure that an independent person visits each month and reports on children’s welfare there.  

Article 39 is seeking a court order quashing Statutory Instrument 445. We contend that the changes to children’s legal protections are a disproportionate response to the Covid-19 crisis and significantly increase the level of risk to many children who are already exceptionally vulnerable. These changes were rushed through without the opportunity for any parliamentary scrutiny, and with no meaningful consultation. They are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989. We believe the Secretary of State for Education breached his statutory duty to consider the need to promote the welfare of children when laying the statutory instrument, required by the Children and Young Persons Act 2008.

Ministers have claimed the 65 changes were made in response to requests from ‘the sector’. However, correspondence disclosed by the Department for Education at the end of last week 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.

Article 39 sees overlap in what was achieved overnight in April and other government deregulation attempts in 2016/17 and 2018/19.

In May 2016 a Bill was brought before Parliament which proposed to allow councils to opt out of their children’s social care duties for up to six years, as a trial for removing them from all local authorities. Ministers were forced to backtrack after Peers voted to delete the ‘exemption clauses’, and following very strong opposition from children’s rights campaigners, social workers, lawyers and others.

Then in 2018, the Department for Education published a guide which it said corrected so-called myths about councils’ legal responsibilities. Fifty organisations and social work experts wrote to the then Children’s Minister asking for the document to be withdrawn. It was eventually removed once Article 39 took legal action.

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. Ministers have reiterated it will expire on 25 September 2020 “unless extended”. Several provisions will continue beyond this date, irrespective of the actions of Ministers.

3.      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.

Please sign the #ScrapSI445 campaign petition here.

VIDEO: Watch Article 39’s Director explain why we threatened legal action (from May 2020):

65 safeguards removed or diluted overnight

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.