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House of Commons votes against revoking secondary care legislation

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 were introduced this April as an emergency response to the COVID-19 pandemic. Without parliamentary scrutiny or in-depth consultation, the changes were made with minimal consultation and without adherence to the usual 21-day notice period.

The Labour Party forced a debate on the 10 June 2020 around the legitimacy of the regulations. They claim that the regulations "relax to a significant degree the safeguarding responsibilities of local authorities in relation to children going into and in the care system" to the detriment of vulnerable children. Shadow Education Secretary, Rebecca Long Bailey highlighted some of the Labour Party's principal issues of concern which include:

• Social Worker visits to privately fostered children or those in care (previously required within one week of admission into care and every six weeks thereafter) is now reduced to "as soon as reasonably practical."
• Relaxation of timescales for care planning reviews.
• Independent panels approving prospective foster carers and adoption placements have become optional, and local authorities can now approve anyone who meets the requirements as a temporary foster carer.
• Monthly visits to Children's Homes have been relaxed to making "reasonable endeavours" to visit, and Ofsted inspections no longer need to take place twice yearly.
• Children can be placed with emergency foster carers for 24 weeks, rather than the usual six days, and children can be placed in short break placements for up to 75 days, rather than 17 days.
• Children's Homes can now deprive a child's liberty if the child is showing symptoms of coronavirus, in accordance with the Coronavirus Act 2020.

Mrs Long Bailey criticises the measures stating.

"Looked-after children have, almost by definition faced great trauma in their lives. They have started life in child poverty, in abusive households, in households that suffer from substance abuse or domestic violence, or with parents who suffer from mental illness. They could have been at risk of female genital mutilation, gang violence, child sexual exploitation or radicalisation; or they could have been an unaccompanied child seeking asylum…. they need more support. "

Children's Minister, Vicky Ford, highlighted some of the measures that the government has introduced to protect vulnerable children including the continuing provision of school places, college placements and early years provision during the period of lockdown. She disputed that the amendments had reduced the responsibilities that local authorities hold to protect children from significant harm and promote their welfare, and argued instead that the government regulations had been implemented in case local services found themselves unable to respond to pressures caused by the pandemic due to potential staff reductions and an increase in demand.

Children's Commissioner, Anne Longfield, has reported that local authorities' staffing of social care was holding up well arguing that the regulatory changes are not therefore justified. She wishes to see the regulations used as a last resort only.

Children's Minister Vicky Ford repeated that the changes would expire in September 2020 and that there was no plan from the government to extend these, adding that "the government are absolutely committed to supporting vulnerable children and ensuring that they are properly safeguarded…."

Following a vote, 123 ministers voted for Labour's motion to revoke the legislation with immediate effect whereas 260 ministers voted against the motion, leaving the Regulations in place. Charity Article 39 have indicated their intention to apply for judicial review.

Forbes Comment

The childcare legislation and procedures, pre-COVID, are an amalgam of lessons learned, improvements and expert guidance, brought together over several decades. Strict requirements around placements and reviews were put in place to avoid children languishing in inappropriate placements for significant periods of time. The current concern is that these relaxations could lead to a weakening of those safeguards and subsequently damage to children. However, it would also appear that the government are seeking to strike a balance between COVID-19 affected social work resources during this period of lockdown, and their obligations to both vulnerable children and public sector social care workers.

Future claims against the Local Authority during lockdown, may be more easily defended, if the Social Workers record why they took the decision they did, and how that decision complies with the new legislation that has been introduced. However, Social Workers should continue to assess each case on the circumstances and, if frequent visits would in normal circumstances be required, clear explanation will have to be provided as to why that was not possible and what alternative safeguards have been considered and attempted.

The recording of decision making remains essential and the lack of resources being presented as a reason why evidence is not available regarding the decision-making process is unlikely to go down well with the Court.

For more information contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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