The government is extending some exemptions to children’s social care regulations – despite facing a judicial review and a Court of Appeal challenge.
The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, or statutory instrument 445 was introduced in April with minimal consultation and without the parliamentary process to relieve pressures on social workers as they faced the coronavirus pandemic.
However, the measures were criticised by different parts of the sector, including the children’s commissioner for England Anne Longfield who called for the measures to be revoked and children’s rights charity Article 39 which was granted permission for a judicial review to challenge the regulations.
Children’s minister Vicky Ford defended the introduction of the regulations saying “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.”
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.
Then in July, the government launched a consultation on plans to extend several of the measures that were introduced to relax statutory duties for social workers in response to COVID-19.
The monitoring data had suggested that while the regulations were being used infrequently, when they have been used, this mainly focussed on the amendments to fostering and adoption regulations, including: 1. Allowing medical reports to be considered at a later stage in the adoption process minimising delays in approving adopters for children needing a new, forever family. 2. Relaxations around fostering panels allowing for continued recruitment of foster carers and a continued functionality of processes.
The consultation stated that COVID-19 continues to present significant challenges to the country, including the way in which children’s social care services are delivered. While the 2020 Regulations will currently expire on 25 September 2020, the consultation proposed that certain amendments were extended for continued use to 31 March 2021.
The government proposes amending the timeframe where medical information is required, given the significant challenges the NHS continues to face. This does not remove the requirement for medical information to be provided but provides additional time for this to be provided- and it must be provided before approval.
Essential services must remain operational during lockdown where households are required to self-isolate or where there is a suspected or confirmed case of COVID-19. Contact in these situations should continue to be virtual but only where a face-to-face visit is not practicably possible.
Ofsted are planning a phased return to inspections. The government proposes to continue the suspension of the frequency regulation which sets out the minimum number of inspections required in various settings to be carried out.
Other than that, the regulations introduced on 24 April will lapse on 25 September. The consultation expired on 5 August 2020. In total there were 189 responses, most of the responses were individuals who worked with or had contact with children in care such as social workers, health professionals, adoption/fostering panel members.
A majority of responses were in favour of each of the proposals to extend individual regulations on medical reports, virtual visits, and the continued suspension of the regular cycle of Ofsted inspections of children’s services providers. The majority of responses also agreed that all other temporary flexibilities introduced in April 2020 should lapse and the need to introduce additional safeguards.
However, many consultees also raised concerns in the way the regulations were introduced, and many felt the regulations should not be extended and should be revoked immediately.
"On the basis of responses to the consultation the government has decided to continue with plans to allow the majority of regulations to lapse on 25 September, save those specifically set out in this document, on medical assessments, virtual visits and Ofsted inspections," the government’s response concluded.
The government has no plans to extend the regulations beyond March 2021.
Children’s Social Care Government consultation response