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Charity threatens DfE with legal action over secondary legislation

A children’s rights charity has threatened legal action against the Department for Education unless it withdraws a statutory instrument which relaxes safeguarding duties towards children .

Article 39 claims the government has acted unlawfully in its failure to consult on the changes outlined in The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 (statutory instrument 445) and in not giving any time for Parliamentary scrutiny.

The secondary legislation removes or weakens 65 children’s safeguards, without any evidence of their connection to the current serious health crisis, the charity warns.

Carolyne Willow, Article 39’s Director, said: “This is an outrageous attack on safeguards which have been built up over 70 years, often in response to terrible failures to protect children.

“Legal action is always a last resort but we consider that this is the only way to ensure the rights of children in care are quickly reinstated. There is no obvious link between COVID-19 and the vast majority of the protections snatched away from vulnerable children. Indeed, since 2016 there have been three failed attempts by government to remove some of the most significant safeguards taken away this time – actions which were, in the past, strongly resisted by parliamentarians, care experienced people, social workers, children’s lawyers, charities and others,” she added.

Article 39 is not the only organisation to criticise the move. WillisPalmer has been worried about the safety of vulnerable young people during lockdown for weeks.

Chief executive of WillisPalmer Mark Willis said: “The relaxing of systems and timescales put in place to safeguard vulnerable children is of grave concern to us. This is not the answer. While it may alleviate pressures on local authorities currently working with fewer staff during the outbreak, it is merely storing problems up for post-lockdown when children’s services departments will be inundated with referrals to the many problems we already know are being exacerbated in lockdown such as a rise in domestic abuse.”

A frontline social worker told us: “What worries me is that children in care who are in new placements may not be seeing their social worker regularly and so if they are experiencing any problems or even abuse in their placements, they would not be able to disclose this to a social worker because statutory visits are not being carried out or are being done virtually. For children in care who are in a long-term stable placement with no concerns, this may not be so much of an issue, but in other placements it could leave children at risk.

“The local authority is the corporate parent to any child in care, therefore, if we are not fulfilling our statutory duty, we are effectively abandoning these children," she added.

The children’s commissioner for England Anne Longfield said the measures set out in the secondary legislation on children in care should be revoked, saying she does not believe that the changes made in these regulations are necessary.

The leader of the Labour Party Keir Starmer has tabled an early day motion calling for the Adoption and Children (Coronavirus) (Amendment) Regulations 2020, which came into force on 24 April in response to the COVID-19 pandemic, to be annulled.

Article 39 has raised concerns about the dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory. The charity has also warned about:

The removal of the duty to hold six-monthly reviews of children in care

The loss of safeguards for children placed out of area with people who are not connected to them

The loss of safeguards in relation to short breaks, particularly affecting disabled children

The loss of independent scrutiny (pre-court stage) and other safeguards in adoption and

The dilution of the duty on children’s homes to ensure independent visits and reports on children’s welfare there.

The charity is urging the government to withdraw the statutory instrument with immediate effect and to give an assurance that any new regulations will be subject to proper consultation, Parliamentary scrutiny and children’s human rights and equality impact assessments.

Oliver Studdert, partner at Irwin Mitchell which is representing Article 39 alongside Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers, said: “The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 remove a number of the essential protections put into place by law to safeguard children in the care system. The government should not use the COVID-19 crisis as an excuse to implement a large number of unnecessary and potentially dangerous changes to the way in which looked after children are supported. Many of the changes expose these children, who are some of the most vulnerable children in society, to additional risk. The regulations, which are widely opposed, have been rushed through without any meaningful attempt to consult, at a time where children in care are likely to be in need of greater levels of support.”

The government has been given 14 days to respond.

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