With Alice Irving, barrister, Research Assistant
The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 make wide-ranging changes to, amongst other things, the role of social workers and local authorities in reviewing provision for children in care, inspecting children’s homes, and in the processes involved in arranging foster placements and adoptions.
The purpose of the Regulations, as set out in the accompanying Explanatory Memorandum, is said to be to make temporary amendments to the law relating to children’s social care, to enable services to manage during the coronavirus outbreak. The changes are characterised as a relaxation of “some administrative and procedural obligations”.
In response, the British Association of Social Workers has said, “hard won rights in law are not simply bureaucratic processes but exist to protect children and young people and promote their well-being.”
Further, there have been concerns raised that the amendments will be extended beyond the 25 September 2020 expiry date set out in the Regulations. Children’s rights charity Article 39 has pointed out that many of the amendments made by the Regulations are the same as those which the government tried unsuccessfully to make in 2016/2017. Those planned changes were abandoned in the face of huge opposition from parliamentarians, care experienced people, social workers, children’s lawyers and charities.
Concerns about permanence
In this context, there is understandable suspicion that the government may seek to make these amendments permanent under the cover of the current public health crisis. Further, on 30 April 2020, the Children’s Commissioner stated that she did not believe the changes made in the regulations were necessary. She stated that, if anything, she would expect to see increased protections to ensure that the needs of vulnerable children are met during this public health crisis. The Children’s Commissioner called for the regulations to be revoked.
This article will not attempt to summarise all of the amendments made by the Regulations (a summary – and robust critique – can be found here and a further critique here , and the Government’s response here). Instead, it will focus on one aspect of the Regulations most likely to impact readers of Special Needs Jungle: changes to safeguarding measures in relation to overnight short breaks, which are primarily (though not exclusively) a service for disabled children.
Of course, during the current pandemic the availability of overnight short break services will be significantly reduced, but the fact that these regulations have been amended is a clear indication that some such services are expected to continue.
Changes to the duration of short breaks and safeguarding measures
The Regulations make changes to the regime that governs short term placements arranged by a local authority, where the child’s parents remain responsible for their overall care (‘short breaks’).
Where such placements are made under section 20 of the Children Act 1989 but last for a limited period and are in only one setting, a modified form of ‘looked after’ status applies to the child, with less stringent safeguards in terms of streamlined care planning, the appointment of Independent Reviewing Officers, visiting requirements and so on: see Regulation 48 of the Care Planning, Placement and Case Review (England) Regulations 2010 and the statutory guidance.
However the Regulations remove the restrictions around the duration of each single placement. Previously, for the modified form of ‘looked after’ status to apply, no single short break placement could last for more than 17 days and, within any given 12-month period, placements could not total more than 75 days.
The Regulations change this, so that one placement can now last up to 75 days: Regulation 8(18)(a). This means in practice that more disabled children will have the modified ‘looked after’ status, with fewer safeguards, than was previously the case.
Short break changes
The Regulations also change the requirements for visits to be made to short break placements. Previously, the local authority had to ensure that a representative of the local authority visited the child at the placement at regular intervals, agreed with the Independent Reviewing Officer appointed and the child’s parents, and recorded in the care plan before the start of the first placement.
The first visit had to take place within three months of the start of the first placement, or as soon as practicable thereafter. Subsequent visits had to take place at intervals of not more than six months, for as long as the short breaks continued.
In addition, the local authority was required to review a child’s case within three months of the start of the first placement, with subsequent reviews being carried out at intervals of not more than six months. This regime ensured that the arrangements for short break placements were kept under observation and review, providing an important safeguard for children.
The coronavirus Regulations keep in place the requirement that a representative of a local authority must visit a child at their short break placement at regular intervals, as agreed between the Independent Reviewing Officer and the child’s parents. However, there is no longer any timeframe within which the first visit must be made, nor subsequent visits.
Further, the Regulations make it possible for visits to short break placements to be conducted by telephone, video link or other electronic means. As for a review of the child’s placement, this must be carried out “as soon as is reasonably practicable” from the start of the first placement and at “regular intervals” thereafter: Regulation 8(18)(b).
This represents a substantial watering down of the safeguarding mechanisms in place in relation to short break placements, both in that in person visits are no longer required and that there are no clear timeframes within which visits and reviews must be carried out.
Watch this space: new guidance is on its way
The Explanatory Memorandum accompanying the Regulations promises that the government will update the Coronavirus (COVID-19): guidance for local authorities on children’s social care to reflect the changes made in the Regulations. At the time of writing (3 May 2020), no update has been issued.
This is a notable omission, given that the in the parallel adult social care context, detailed guidelines have been issued that require local authorities to continue to comply with their pre-coronavirus statutory obligations, unless and until it is no longer reasonably practicable for them to do so.
The adult social care guidance further sets out the process which a local authority must follow in ‘triggering’ the downgrading of its adult social care duties: this process is structured and ought to be documented.
Nevertheless, the British Association of Social Workers have warned: “The risk is that significant changes are ‘dribbled in’ on a case by case basis with no explicit rationale either within or between local authorities.” Given this, it will be important to keep an eye out for any updates to the government guidance on children’s social care.
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- Changes to children’s social care – implications for disabled children’s short breaks - May 5, 2020
- Why the Coronavirus lockdown adjustment for people with disabilities and mental health conditions was the right thing to do - April 16, 2020
- Care in a time of coronavirus (ii): Using health direct payments to pay family members for care - April 2, 2020