30th April 2020

Statement on changes to regulations affecting children’s social care

Statement by the Children’s Commissioner for England

On Friday 24th April the ‘Adoption and Children (Coronavirus) (Amendment) Regulations 2020’ came into force, and are not due to expire until 25th September. These regulations make significant temporary changes to the protections given in law to some of the most vulnerable children in the country – those living in care.

I appreciate that Local Authority children’s services are likely to be experiencing challenging working conditions during the pandemic, and there are many inspiring examples of frontline workers going above and beyond the call of duty to keep children safe. Nevertheless, I do not believe that the changes made in these regulations are necessary– except perhaps for some clarifications (in guidance) about contact with children taking place remotely during the lockdown. Children in care are already vulnerable, and this crisis is placing additional strain on them – as most are not in school, less able to have direct  contact with family and other trusted professionals, and facing the challenges of lockdown and anxiety about illness – all on top of the trauma they have already experienced. If anything, I would expect to see increased protections to ensure their needs are met during this period.

These changes have been made with minimal consultation, and without complying with the usual 21 day rule of being published three weeks before coming into force. The explanation for this is that ‘waiting 21 days will put extraordinary pressure on local authorities, providers and services to try to meet statutory obligations while continuing to provide care for vulnerable children and young people during the outbreak.’ However, the reports I have been receiving from local authorities are that staffing for social care is holding up well.  It therefore appears that bringing in these regulatory changes to ease excessive strain on a depleted workforce, and to do so without the opportunity for public scrutiny, is not justified.

I am extremely concerned about the following changes in the regulations meaning that:

  • The requirement that social workers must visit children living in care, or who are privately fostered, in accordance with strict statutory timescales – within one week when they have gone into care, and every six weeks for the year after that – have been relaxed. Now if they are unable to visit within the timescales they must do so as soon as ‘reasonably practicable’ thereafter. This applies even if the ‘visits’ are done by phone or video call.
  • Requirements to review plans for children in care to set timescales have been relaxed, meaning that children will not have this opportunity to raise issues about their care and to have this independently scrutinised.
  • Children’s Homes can now enforce the deprivation of liberty of children if they are showing symptoms of Coronavirus, in accordance with the Coronavirus Act. Guidance for Children’s Homes and Public Health Officers on how this can be enforced, and setting out a clear scheme for how these deprivations will be monitored will be essential to ensure children’s rights are protected.
  • The independent panels which approve foster carers and adoption placements have become optional, removing a layer of scrutiny for these highly important decisions.
  • Local Authorities can now approve anyone who meets the requirements as a temporary foster carer, rather than only those who are connected to a child, such as friends or family, as was the case previously.
  • Independent visits to Children’s Homes no longer have to occur monthly, so long as ‘reasonable endeavours are made’ to do so, and Ofsted inspections no longer need to take place twice a year.
  • Children can be placed with emergency foster carers – who will be approved as carers, but may for example not be approved to care for the number of children placed with them – for 24 weeks rather than the usual 6 days. Some flexibility if carers fall ill is understandable, but I believe the change to 24 weeks is excessive.
  • Children can now be placed in a ‘short break’ placement for up to 75 days, rather than the usual 17, with reduced requirements on visits and care plans.
  • Decisions to place children into care outside their local area with connected foster carers do not need to be approved by a nominated officer – this now also applies to those approved as temporary carers, who may not be connected to the child

I would like to see all the regulations revoked, as I do not believe that there is sufficient justification to introduce them. This crisis must not remove protections from extremely vulnerable children, particularly as they are even more vulnerable at this time. As an urgent priority it is essential that the most concerning changes detailed above are reversed.

As an absolute minimum, if the Government refuses to revoke these Regulations, I wish to see guidance make clear that these changes will only ever be used as a last resort, and for as short a time as possible. Similar protections must be introduced for children as those set out for adults when changes to the Care Act were introduced by the Coronavirus Act. This would mean that Local Authorities can only relax their adherence to duties if they can show their workforce has been significantly depleted, and that this decision must involve the Principal Social Worker and be evidenced and recorded. In addition, guidance would have to be clear that all the ‘reasonable endeavours’ to meet timescales should be recorded and evidenced if the decision was taken to relax adherence to duties. The Department for Education and Ofsted should be notified by any Local Authority that decides to do so.

In addition, these decisions taken by Local Authorities, as well as the data that informed them, should be closely monitored by the Department for Education and feed into monthly reviews of the regulations. The Department should also immediately publish an assessment of the impact of these changes on children’s rights.

Some of the key changes are detailed in this table:

Regulation What the change does
Care Planning, Placement and Case Review (England) Regulations 9, 19 and 47C This amends the requirements to complete placement plans once a child has been placed within five or ten days (depending on circumstances) to as soon as reasonably practicable. This also applies to children on remand.
Care Planning, Placement and Case Review (England) Regulation 11 This means that a child can be placed outside their local area with a carer, even if this carer is not ‘connected’ to them, without approval by a nominated officer.
Care Planning, Placement and Case Review (England) Regulation 23 An emergency placement with an approved foster carer can now last 24 weeks, rather than 6 days, even if that foster carer is eg not approved to look after that many children
Care Planning, Placement and Case Review (England) Regulation 28  This sets out that ‘visits’ to children in care can be done by phone or video call. It states that  ‘Where (a social worker) is unable to visit (a child) within the timescales set out in this regulation the responsible authority must ensure that R visits C as soon as is reasonably practicable thereafter.’ This is a relaxation of the requirement to visit to those timescales.
Care Planning, Placement and Case Review (England) Regulation 33 and 48 This changes the requirement for care plan reviews to take place every six months – it is now ‘as soon as reasonably practicable’ after that if six months is missed. This also applies to children in short breaks care.
Care Planning, Placement and Case Review (England) Regulation 48 Children can stay with short breaks carers for up to 75 days in one go, rather than 17 days in one go (the 75 day per year total remains the same)
Fostering Services (England) Regulation 23 This removes the requirement for foster panels to be set up to approve new carers or review foster carers.
Fostering Services (England) Regulation paragraph 2 of Schedule 3 This removes the requirement for a medical report at the initial stages of foster care approval
The Children’s Homes Regulation 6 Changes the requirement for care from staff outside the home to be delivered by someone with the knowledge and skills to do it, to make this only ‘as far as reasonably practicable’
The Children’s Homes Regulation 8 This sets out a ‘reasonable endeavour’ to make sure children achieve the education standard in Children’s Homes
The Children’s Homes Regulation 20 This sets out that children can be deprived of their liberty under public health powers of the Coronavirus Act 2020 if they are symptomatic
The Children’s Homes Regulation 22 Allows for contact with family to take place remotely
The Children’s Homes Regulation 44 This sets out independent visitors should ‘make reasonable endeavours’ to visit monthly, rather than that they have to
Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (Fees and Frequency of Inspections) (Children’s Homes etc) Regulation 27 This stops the requirement for children’s homes to be inspected twice a year
Residential Family Centres Regulation 10 This states that for residential family centres (such as mother and baby units) the provider must only make ‘reasonable endeavours to ensure’ that they promote and provide for the health, welfare, care, treatment and education of residents rather that that they ‘shall’ do so.
Residential Family Centres Regulation 20 This allows for complaints to be responded to within 28 days ‘as far as reasonably practicable’ rather than a hard time limit
Residential Family Centres Regulation 25 This allows for the registered provider to only have to make ‘reasonable endeavours’ to visit the unit once a month.
Adoption Agencies Regulation 17 and 30D and 31 This allows for a Local Authority to choose not to have an adoption panel approve placements for adoptions and to have the decision for whether adopters remain suitable approved by the panel
Adoption Agencies Regulation 4 This reduced the number of people required on an adoption panel, if it does go ahead
Adoption Agencies Regulations 27 This means that a potential adopter can go through the first stage of pre-assessment without medical or DBS checks, although these would still be needed before final approval
Adoption Agencies Regulations 36 This stops the requirement for reviews when a child has either been approved or placed with adopters if this is not reasonably practicable, but an adoption order has not yet been made, unless the agency thinks there is a safeguarding issue
Private Arrangements for Fostering Regulations 4,7 and 8 This means that if a LA becomes aware of a child who is, or is about to be, privately fostered they now only need to visit them ‘as soon as is reasonably practicable’ rather than within seven days, and then only make reasonable steps to visit every six or 12 weeks in subsequent years
Children Act 1989 Representations Procedure Regulations 18, 19 and 20 These regulations mean that review panels into complaints only have to respond to complainants ‘as soon as reasonably practical’ rather than to statutory timescales
Education and Inspections Act 2006 (Inspection of Local Authorities) Regulation 3

AND

Children Act 2004 (Joint Area Reviews) Regulation 4

This change relaxes the requirement to provide a response and proposed plan of action within 70 days of an Ofsted inspection of LA services. The same change applies after joint area inspections
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