The Labour frontbench forced a debate in the House of Commons yesterday urging the changes to care legislation made in response to the COVID-19 to be revoked.
The government published statutory instrument 445 in April in order to make changes to regulations (secondary legislation) relating to the legal protections for children in care as an emergency response to the COVID-19 pandemic without parliamentary scrutiny or in-depth consultation.
However, children’s rights charity Article 39 said the changes outlined in The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 removes or weakens 65 children’s safeguards, “without any evidence of their connection to the current serious health crisis”.
The charity has now applied to the High Court for a judicial review of changes.
The children’s commissioner for England Anne Longfield has also called for the secondary legislation to be revoked. She said: “I would like to see all the regulations revoked, as I do not believe that there is sufficient justification to introduce them.”
The Labour leader Keir Starmer tabled an early day motion urging the secondary legislation to be abolished.
The Labour party then forced the debate yesterday around the regulations which “relax to a significant degree the safeguarding responsibilities of local authorities in relation to children going into and in the care system”.
Shadow education secretary Rebecca Long Bailey highlighted some of the measures included in the regulations which include:
- Social workers had been required to visit privately fostered children or those in care within one week when they go into care and every six weeks for the year after that. This requirement has been changed to “as soon as is reasonably practical” even for a phone or video call. The requirements to review plans for children in care to set timescales have also been relaxed.
- Independent panels, which approve foster carers and adoption placements, have become optional, and local authorities can now approve anyone who meets the requirements as a temporary foster carer.
- There now only have to be “reasonable endeavours” made to visit children’s homes, instead of monthly visits, and Ofsted inspections no longer need to take place twice a year.
- Children can be placed with emergency foster carers for 24 weeks, rather than the usual six days, and children can be placed in short break placements for up to 75 days, rather than 17 days.
- 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 2020.
Shadow education secretary Rebecca Long Bailey said: “It is easy to see how a whole generation of looked-after children could be adversely affected during the six months the relaxed duties are in place—if, indeed, the government do reverse them later this year.”
“It is important to recognise the group of children we are talking about in this debate. As of 31 March 2019, just over 78,000 children were in the care of local authorities, up 4% on the previous year. On top of this, many more are classified as in need or at risk, and may flow in and out of the care system; about 100,000 children flow through the care system each year.”
“Looked-after children have, almost by definition, faced great trauma in their lives. They may have started life in child poverty, in abusive households, in households that suffer from substance abuse or domestic violence, or with parents who suffer from mental illness. They could have been at risk of female genital mutilation, gang violence, child sexual exploitation, or radicalisation; or they could have been an unaccompanied child seeking asylum,” she added.
She pointed out that as these children are, by definition vulnerable, in the context of the pandemic “they need more support, not less”.
Citing criticism of the regulations from the children’s commissioner for England Anne Longfield, BASW, the National Youth Agency and Become, the charity for children in care and care leavers, Rebecca Long Bailey said: “There is clearly consensus across the board that these regulations are not necessary. They are disproportionate to the need expressed by local authorities; will significantly increase the risk that these children and young people are already exposed to; are likely to be detrimental to children’s outcomes; were introduced with no scrutiny and minimal consultation; and have no guarantee that they will be revoked in September. As such, the Labour party opposes these regulations and urges the government to revoke them with immediate effect.”
During the debate, children’s minister Vicky Ford highlighted some of the measures that the government has introduced to protect vulnerable young people:
- Networks of support has been set up across the country for different groups of vulnerable children.
- Schools, colleges and early years providers have remained open for vulnerable children throughout lockdown.
- When children have not attended, the government has worked with education settings and local authorities to ensure that social services are in touch with children.
- A wide range of specific online resources have been produced so that those staying at home can continue their education.
- £37 million has been allocated to the Family Fund to support more than 75,000 low-income families with disabled or critically ill children.
- Some 39,000 adoptive families have had extra help from the increase that we have made to the adoption support fund.
- Care leavers can remain in their current home rather than transition during this period.
- Increased mental health and wellbeing support and guidance has been provided for children, teachers and parents and the government has invested in mental health charities.
- The See, Hear, Respond project, led by Barnardo’s, will further support vulnerable children at risk of harm.
However, Ms Ford acknowledged: “The protection of vulnerable children relies on those on the frontline, especially children’s services in local authorities, so we have supported local authorities with additional investment to help social workers to return to the frontline and by deploying more than 250 Ofsted staff directly into local authorities, as well as through new regional teams. But those on the frontline have faced challenges that they have never seen before. I have heard directly from many social workers about those challenges; hence we have needed to give them some regulatory flexibilities.”
“The regulations on children’s social care are intended to support local authorities and providers, but do not remove any fundamental protections. Let me be really clear: section 22 of the Children Act 1989 remains in place, meaning that local authorities still have a duty to safeguard and promote the welfare of any child they are looking after, and section 1 of the Adoption and Children Act 2002 remains, meaning that the child’s welfare is paramount in all decisions on adoption. We have made no changes to primary legislation and the vast majority of secondary legislation has remained unchanged.
“The amendments do not reduce the responsibilities that local authorities have to protect children from significant harm and to promote their welfare, nor should they be at the expense of the rights and protection of children in care,” she added.
Ms Ford continued that the government needed to prepare for the risk that local services may be unable to fully respond to significant pressures caused by COVID-19. Serious staff absences, coupled with an increase in demand for services, could lead to the most vulnerable children being put at risk if services struggle to cope with the requirements of legislation. Some of the changes made, therefore, provide for the ability to diverge from established timescales for a limited number of activities or to cater for situations where there may be staff absences or a need to reduce personal contact. For example, it may not be appropriate for a social worker to physically visit a looked-after child if COVID-19 is present or if the household is self-isolating.
Some changes are designed to help ensure that there are minimal delays in the adoption or fostering process, she added, for example, in order to make sure that we have enough foster carers available at a time when potential need has increased, there is flexibility on who could be a temporary foster carer, while still requiring that carers must be properly assessed for this vital role.
“The flexibilities were developed rapidly and they needed to be, so the scope for formal consultation was more limited than normal and it was necessary to forgo the standard 21-day rule for their coming into force, but the views of a wide range of organisations did influence the regulations that were laid before the House,” said Ms Ford.
“Statutory timescales remain in place. Social workers always must endeavour to meet those timetables, and in the small number of cases where they cannot meet them, for reasons such as sickness or self-isolation, they must be able to demonstrate that they can meet them and why the temporary amendment can be used,” she added.
“The changes will expire on 25 September. There is no plan to extend them. If there is a need for further flexibility, it will be on a case-by-case basis after discussion with stakeholders and subject to full parliamentary process. The regulation changes are temporary. They are not permanent. I am committed to keeping a close eye on the situation and will report back to Parliament before the summer recess.
“The government are absolutely committed to supporting vulnerable children and ensuring that they are properly safeguarded. We have demonstrated that through the initiatives I have outlined today. Supporting vulnerable children will continue to be my No. 1 priority, the No. 1 priority of the Department for Education, and the number one priority of the government during this time,” she concluded.
Following the vote, 123 people voted for the changes to the legislation to be annulled while 260 opposed it.
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