The government has confirmed that local authorities should no longer be using flexibilities set out in the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 and, where they are used, there should be “strong justification”.

The Department for Education introduced secondary legislation in April in response to COVID-19 and the problems it presented which provided local authorities and other providers with temporary flexibilities to support them to focus on core safeguarding duties during the pandemic.

However, the move was met with criticism, not least from children’s rights charity Article 39 which threatened the DfE with legal action and was granted permission for a judicial review of the changes made to care legislation.

In response to a written parliamentary question yesterday, children’s minister Vicky Ford said: “The extraordinary measures the government has taken over the last few months means that we are now in a much better position to ease the restrictions that everyone has faced. Given the lower level of coronavirus now present, there is a significantly reduced need for local authorities and providers to use these flexibilities. I therefore intend to update guidance immediately to make it clear that there should no longer be a need to use most of these flexibilities and will be writing to local authorities and providers accordingly. Where they do use flexibilities, local authorities and providers should ensure that they have strong justification.”

“I would also like to provide further clarity about the future of these flexibilities and am today announcing that, subject to a short period of consultation, the overwhelming majority of these regulations will expire as planned on 25 September,” she added.

Article 39 took legal advice after identifying “65 separate removals or dilutions of children’s legal protections” in the regulations outlined in the Adoption and Children (Coronavirus) (Amendment) Regulations 2020.

However, in Parliament, Vicky Ford said the measures were introduced in “exceptional circumstances, with social workers and others facing decisions that they had never faced before”.

“There was an urgent need to take action to ensure that local authorities and others supporting children and young people could focus on core safeguarding responsibilities should the worst-case scenario come to pass. We needed to prepare for very significant rates of staff sickness coupled with family illness potentially leading to many more children needing to be found emergency care. We were aware that the coronavirus pandemic would have a real impact on the lives of children and families, and that this would be a difficult time for them,” said the children’s minister.

Ms Ford continued that the government has always been clear that these temporary amendments should be used only when absolutely necessary and only if consistent with the overarching safeguarding and welfare duties that have remained in place. The guidance sets out clear safeguards about how and when they should be used:

- where staff shortages, due to sickness or other reasons, make it difficult or impossible to meet the original requirements.

- where making use of flexibilities to take a different approach is the most sensible, risk-based response in light of other demands and pressures on services, this might involve focusing services on those most at risk.

- where there is a consequential reason to make use of flexibilities, for example, due to limited capacity in other providers or partners making it difficult or impossible to comply with the original requirements.

She said that monitoring has shown that the majority of the regulatory flexibilities have been rarely used and only when needed in response to coronavirus. Out of 128 local authorities the government had spoken to in June and July, 87 have used at least one regulation, although many have only used them on a limited number of occasions and in a limited number of areas. The most frequently used flexibilities were related to the fostering and adoption regulations, such as allowing medical reports to be considered at a later stage in the adoption and fostering process though still prior to approval. This has minimised delays in approving adopters for children. Similarly, relaxations around panels have allowed for the continued recruitment of foster carers and a continued functionality of processes.

Furthermore, virtual engagement with children and families has often been used alongside face to face visits and, in some cases, this has resulted in greater levels of contact between children, young people, parents, and carers – and improved engagement from some young people, the children’s minister added.

The government has always been clear that these temporary amendments will remain in place only for so long as they are needed. However, while the overwhelming majority of these regulations will expire as planned on 25 September, the government believes that there may be circumstances in which some services continue to face specific and exceptional challenges into the autumn. As more children are seen by schools, and social distancing eases further and hitherto hidden harms come to light, we must be prepared for the potential additional demands that may still be placed on services.

“I am therefore minded, subject to consultation, to extend a very small number of temporary changes for a further period,” said Ms Ford.

These regulations would be in relation to the following areas:

Medical reports

In order to become a foster carer or adoptive parent, a medical report from a GP is required. As restrictions are eased and schools return, there may be more children needing care, and therefore there will be a higher need for potential adopters and foster carers. As the NHS still faces significant challenges, the amendments that allow more time for GPs and other health professionals to provide information to support the process of approving much needed potential adopters and foster carers will be extended.

Virtual visits

Essential services, such as social worker visits, should be operating during any local lockdowns, and in cases where households are being required to self-isolate due to a case, or suspected case, of coronavirus, or contact with someone who has tested positive for coronavirus, in line with medical advice from the NHS test and trace service. It may therefore be appropriate to continue to enable visits in these situations to happen virtually while in all other situations face to face visits should take place.

Ofsted inspections

Ofsted inspections have not taken place since March so Ofsted will need a period of catch-up before it can resume normal service. As announced last week, Ofsted are planning to carry out a phased return to routine inspections. This will include risk-based assurance visits to children’s social care settings, based on the previous inspection judgement, the amount of time since a setting was last inspected and other information Ofsted hold about the setting. These assurance visits will occur between September 2020 and March 2021. At this point full graded inspections will recommence. The government is therefore recommending that the suspension of the existing frequency regulation for Ofsted inspections be extended until 31 March 2021, to allow Ofsted to provide the most assurance, to the sector and the wider public, about the safety and care of children.

A short consultation will launch later this week to inform final decisions and should a new Statutory Instrument be proposed to extend any flexibility beyond 25 September 2020, Parliament will be provided with the customary 21 days opportunity to scrutinise the regulations before they come into force, Ms Ford explained.

As inspections resume, Ofsted will want to be assured that any flexibilities have been used in the best interests of children, following careful risk assessment and with clear records of decisions made by local authorities and providers. As such, local authorities and providers must maintain a focus on child-centred practice and continue to record their decisions and ensure that these records are available for Ofsted. Inspectors will want to see the best possible practice for children.

“Throughout this pandemic, social workers, charities, and others working to support our most vulnerable children and families have worked tirelessly to ensure that they continue to receive the support they need. I would like to place on record my personal gratitude, and that of the whole government, for everything they have done and continue to do. I would also like to acknowledge the extremely difficult circumstances many children and families have faced during this pandemic,” said Ms Ford.

“Protecting vulnerable children remains our top priority, as it does for local authorities and children’s social care providers across the country. As the country begins to return to a more normal way of life, it is absolutely right that this also applies to children’s social care,” she concluded.

Children’s Social Care Update: Written statement - HCWS368