Tag: Exemption clauses

Ministers use COVID-19 to destroy children’s safeguards

A statutory instrument published this afternoon makes unprecedented changes to regulations (secondary legislation) relating to the care and protection of vulnerable children and young people.

The changes to 10 sets of regulations come into force tomorrow (24 April 2020), and are due to expire on 25 September 2020 – though this expiry date can be revoked.

Article 39 understands the tremendous pressures local authorities and public services are under, and the risks to the lives and health of staff and children, young people and families at this time. We support changes to practice which help to protect lives and safeguard health.

However, many of the changes made by this statutory instrument have been proposed by government before.

Four years ago, the Government tried unsuccessfully to grant local authorities the power to opt out of their children’s social care duties for up to six years – as a trial for removing the duties altogether. The move was widely and strongly opposed. Ministers were forced to backtrack in March 2017. Further attempts were made in 2017/18 and then 2018/19.

An exchange in the Education Select Committee yesterday between former Deputy Chair of the Local Government Association and the Children’s Minister reheated some of the debates from four years ago, using much of the same language. The suggestion was that these ‘freedoms’ be made permanent once the effect of the suspensions is known.

Extract from Education Select Committee, 22 April 2020
(The official transcript can be found here; see Question 24)

Carolyne Willow, Article 39’s Director, said:

“The idea that local authorities have been clamouring to remove fundamental legal protections from vulnerable children during the middle of a global pandemic is just not credible. This is deregulation on steroids. It is soul-destroying that so much time and effort has been put into systematically eroding the rights of children.

Much of this disrupter’s wish-list has been in the public domain, one way or another, for at least four years. It’s an insult to children to suggest that COVID-19 is the cause of this.

“Having spent hours going through the statutory instrument line-by-line, I haven’t been able to find a single new protection for children. The whole document is about taking away, diminishing and undermining what has been built up for children over many decades.

“Ministers have not even bothered to make a statement about compatibility with the European Convention on Human Rights, because the statutory instrument will just go through on the nod. We have to assume that the UK’s obligations under the Convention on the Rights of the Child have not been considered either.”

Summary of key changes

  • Social worker visits to children in care – can now be via a phone call but clear 6-weekly duty removed
  • Six-monthly independent reviews of a child’s care no longer mandatory
  • Adoptions to “proceed swiftly”
  • Relaxation of notification duties in respect of criminal offences (fostering)
  • Placement plans no longer necessary for kinship care
  • Care standard weakened in children’s homes
  • Twice-yearly Ofsted inspections of children’s homes no longer required
  • Monthly independent visits and reports on children’s homes no longer mandatory
  • ‘Emergency’ foster care placements to last for nearly 6 months
  • Short breaks can last for 75 days without care planning safeguards
  • Local authority action in relation to children who are privately fostered becomes “reasonably practicable”
  • Adoption agencies no longer required to establish adoption panels, and fostering panels become optional
  • Suitability of foster carers can be assessed in the absence of health information and criminal records checks (still have to be obtained though not clear when)
  • “Reasonably practicable” caveat added to timings of independent review of children’s social care complaints
  • Children’s homes a place of detention for children potentially infected with COVID-19
  • Fostering services no longer required to report infectious disease to Ofsted

Social worker visits to children in care – can now be via a phone call but clear 6-weekly duty removed
The law currently requires local authorities to visit children in care one week after they started living in a placement (foster care, children’s home or unregulated accommodation for example) and then every six weeks.

From tomorrow, this basic protection for children in care is removed through a change which allows local authorities who are unable to meet the six-weekly time-scales to visit “as soon as is reasonably practicable”.

An accompanying change allows these six-weekly visits to be made by “telephone, video-link or other electronic means”. This means the law has been relaxed to such an extent that councils are not even required to make a telephone call to a child in care once every six weeks.

Six-monthly independent reviews of a child’s care no longer mandatory
The law requires an independent review of each child in care every six months. (A first review must be carried out within 20 days of a child entering care, and a second after three months).

From tomorrow, six-monthly reviews of children in care move to a “where reasonably practicable” time-frame. This is a substantial dilution of child protection. The requirement to undertake six-monthly reviews of children in care has been in place since 1946, following the manslaughter of a 12 year-old child, Dennis O’Neill, by his foster carers.

Ministers tried to change the law in 2016/17 to facilitate a weakening of this protection. Peers rejected the government’s plans when the ‘opt-out’ legislation was voted on in the House of Lords (November 2016). Then the former Education Secretary, Justine Greening, abandoned the plan altogether in March 2017, amidst huge opposition from parliamentarians, care experienced people, social workers, children’s lawyers and charities.

Adoptions to “proceed swiftly”
The law currently requires that only a ‘nominated officer’ of a local authority can approve the placement of a child with foster carers who are also prospective adoptive parents for that child. Such a placement can only be made after the local authority has prepared a placement plan for the child.

From tomorrow, both these safeguards are removed. Explanatory notes to the statutory instrument state: “This means that these placements are able to proceed swiftly, ensuring children are not waiting due to procedural delays”. In other words, during a global pandemic, when family courts are conducting hearings remotely and access to justice is even further constrained, Ministers have removed safeguards in order to speed up adoptions.

Relaxation of notification duties in respect of criminal offences (fostering)
The law currently requires providers, managers or directors of fostering services who are convicted of a criminal offence to notify Ofsted’s Chief Inspector in writing without delay.

From tomorrow, this is diluted to “as soon as is reasonably practicable”. This is an astonishing change, since the ability to notify in writing via email is not at all affected by COVID-19.

Placement plans no longer necessary for kinship care
The law currently requires that children in care who go to live with family members or friends only do so after a placement plan has been agreed for the child. This is to ensure that this arrangement is right for the child.

From tomorrow, a placement plan will no longer be necessary. Moreover, whereas the law previously allowed children to be placed in kinship care on an emergency basis, followed by an assessment of its suitability within 10 working days, this has now been changed to “as soon as is reasonably practicable”. When Ministers were trying to push through the exemption clauses in 2016/17, this was one of the areas of law they hoped to change.

Care standard weakened in children’s homes
Children’s homes have been required to meet quality standards since April 2015. One of the standards relate to the quality of care. It requires that children are cared for by people who have the experience, knowledge and skills necessary to deliver that care, and that staff are supervised by appropriately skilled and qualified people.

From tomorrow, this will change to “as far as reasonably practicable”. We are not aware of any other children’s setting – paediatric wards, schools or nurseries for example – where statutory requirements relating to the experience, knowledge and skills of staff have been similarly relaxed. Earlier this month, the Independent Children’s Homes Association reported that just 5 per cent of staff in 150 settings had taken time off sick, so it appears unlikely that this dilution of the care standard has been drafted to cover temporary staffing challenges.

Twice-yearly Ofsted inspections of children’s homes no longer required
The law currently requires Ofsted to inspect registered children’s homes at least twice a year. From tomorrow, this duty no longer exists.

Duties relating to the frequency of inspections have similarly been removed in respect of fostering and adoption agencies, residential family centres and holiday schemes for disabled children.

Ofsted continues to have statutory powers to inspect in accordance with the Care Standards Act 2000 and is reported to be “content with this change” to inspection frequency.

Monthly independent visits and reports on children’s homes no longer mandatory
The law requires that every children’s home appoints an independent person to visit the home at least once a month. The independent person must write a report on the home which in particular addresses whether a) children living there are effectively safeguarded and b) the conduct of the home promotes children’s well-being. This report must be sent to Ofsted and local authorities.

From tomorrow, instead of these independent visits and reports being required to happen at least once a month, children’s homes’ providers will be simply required to “use reasonable endeavours” to ensure they occur. This is a significant relaxation of an independent safeguard.

The majority (three-quarters) of children’s homes are run by the private sector and only 49 per cent of children living in children’s homes live within 20 miles of their home area. These independent visits and reports are a vital safeguard for children living far away from their local authorities, in establishments not under council control.

Emergency’ foster care placements to last for nearly 6 months
Currently the law allows local authorities to temporarily approve a child’s relative, friend or other connected person as a foster carer for a period no longer than 16 weeks.

From tomorrow, this period has been extended to 24 weeks and there is no requirement for the temporary foster carers to have an existing family or other connection to the child.

Short breaks can last for 75 days without care planning safeguards
Social worker visits, independent reviews, leaving care entitlements and other safeguards currently apply when a disabled child has a single short break (in a children’s home for example) lasting longer than 17 days, or has short breaks amounting to more than 75 days in a year.

From tomorrow, safeguards only apply when a disabled child has had short breaks amounting to more than 75 days in a year. (The single short break of more than 17 days does not trigger the safeguards.) Moreover, duties around social worker visits and independent reviews have been specifically modified for these children.

Local authority action in relation to children who are privately fostered becomes “reasonably practicable”
Private fostering is where a child under 16 (or 18 if the child is disabled) lives with another family, the arrangement having been made privately – without the involvement of children’s social care. Legal safeguards developed (slowly) following the murder of eight-year-old Victoria Climbié in 2000.

The law currently requires that local authorities (social workers) visit a child within seven days when first notified that there is a plan to privately foster the child, or the child has been privately fostered. From tomorrow, this duty dilutes to seven working days “or as soon as is reasonably practicable”. Similarly, “where reasonably practicable” has been added to local authority duties to visit the child.

Adoption agencies no longer required to establish adoption panels, and fostering panels become optional
The law currently requires every adoption agency to establish a panel which scrutinises adoption applications and make recommendations on the suitability of prospective adoptive parents. It also requires fostering providers to have fostering panels which approve and review foster carers. These are two further safeguards which this government has previously sought to delete.

During the passage of the Children and Social Work Act 2017, the Government said it wanted local authorities to be able to trial opting out of their duties to establish adoption and fostering panels. As with all of the other exemption proposals, this was widely and strongly condemned. John Simmonds, from CoramBAAF, wrote at the time:

It is also suggested that adoption and fostering panels will be made optional or subject only to electronic forms of communication. This is a major turning away from their long established and critical role in big decisions that affect children throughout their lives.

John Simmonds, Director of Policy, Research and Development, CoramBAAF, January 2017, when government first tried to remove these duties

Suitability of foster carers can be assessed in the absence of health information and criminal records checks (still have to be obtained though not clear when)
The law currently requires that health information (including a medical report) and criminal record checks are part of the fostering assessment and approval process.

From tomorrow, fostering agencies will be able to proceed with assessments of prospective foster carers without this information (though it must still be obtained). This is an incredible relaxation of basic safeguards. During this global pandemic, health information about prospective carers is more, not less, critical.

Reasonably practicable” caveat added to timings of independent review of children’s social care complaints
Adults and children who make a formal complaint about children’s social care have the legal right to request that it be investigated by a review panel. Three independent people form this review panel.

From tomorrow, instead of the regulations stating that the review panel must meet within 30 working days of a complainant’s request for a review panel, the requirement is 30 working days “or as soon as is reasonably practicable”. In a similar vein, the requirement for the panel to send a report to the complainant and the local authority within 5 days of its meeting has been changed to 5 working days “or as soon as is reasonably practicable”. This dilutes important procedural safeguards around the independent investigation of complaints.

Children’s homes a place of detention for children potentially infected with COVID-19
The law currently provides that children’s homes may only deprive children of their liberty if this is authorised by a court order. From tomorrow, this can be in accordance with an exercise of powers under Schedule 21 to the Coronavirus Act 2020. These are powers of detention given to health officials and immigration and police officers.

Fostering services no longer required to report infectious disease to Ofsted
Currently fostering services have a number of ‘notification duties’, including a duty to report infectious disease to Ofsted’s Chief Inspector.

From tomorrow, this particular duty will no longer apply – even within the middle of a global pandemic.

Read the statutory instrument here.

PLEASE NOTE: This summary has been prepared at speed. It is not an exhaustive review of the statutory instrument. We will add further information (and links) over the coming days.

Government document tells councils they can bypass legal obligations

A document recently published by the Department for Education tells councils what they are allowed to do in respect of the care and protection of children and young people. It is published on the Children’s Social Care Innovation site.

As we wait for responses to our freedom of information (FOI) requests – see below – we have produced a table showing what’s wrong with the document:

What’s wrong with the ‘myth busting’ document Nov 2018

As can be seen, the ‘myth busting’ document claims to be focused on statutory guidance, though it also concerns primary and secondary legislation.

Acts of Parliament are primary legislation. Secondary legislation is also approved by Parliament though with much less scrutiny and debate. Other terms for secondary legislation are regulations and statutory instruments.

Both primary and secondary legislation must be followed.

In addition to complying with the law, local authorities must follow statutory guidance (issued by government departments) unless there is very good reason not to.

Through a series of so-called ‘myth busting’ questions, the Department for Education document claims to summarise the obligations in statutory guidance and then proceeds to set out what the guidance allows. The document states “all of the responses [that is, the ‘what does the guidance allow’ content] have been agreed by the Department for Education and their lawyers in consultation with Ofsted”.

Action to date
Article 39 co-ordinated a letter (with 50 signatories) to the Children’s Minister setting out the legal inaccuracies in the ‘myth busting’ document. We asked him to withdraw the parts of the document which are inaccurate. Six days later we received a response from the Minister. Very regrettably, the Minister did not agree to withdraw the inaccurate content.

Minister's response to joint letter of concern 10 September 2018

After seeking further legal advice, and convening a meeting of concerned organisations, Article 39 submitted the following FOI questions to the Department for Education and Ofsted. Answers to these FOI questions are due tomorrow (16 November).

Our questions to the Department for Education
1) Please provide a copy of the equality impact assessment completed in respect of the Children’s Social Care statutory guidance myth busting document published by the Department for Education (attached with this request).
2) Please provide copies of correspondence between local authorities and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document published by the Department for Education.
3) Please state the date of publication of the Children’s Social Care statutory guidance myth busting document.
4) Please state the date or dates agreement from Department for Education lawyers was sought on the content of the Children’s Social Care statutory guidance myth busting document, and by whom.
5) Please state the date or dates agreement was provided by Department for Education lawyers on the content of the Children’s Social Care statutory guidance myth busting document.

Our questions to Ofsted
1) Please provide copies of correspondence between Ofsted and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document (attached with this request).
2) Please state the date or dates Ofsted was asked to agree the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.
3) Please state the date or dates Ofsted gave its agreement to the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.