Relaxation of statutory duties: what we know so far

As part of its response to the Covid-19 pandemic, the government has passed emergency changes to relax local authorities' statutory duties to vulnerable children.

Children's minister Vicky Ford published the changes on 23 April. Picture: Parliament UK
Children's minister Vicky Ford published the changes on 23 April. Picture: Parliament UK

The move has drawn criticism from sector leaders and children’s rights groups who claim it is a “dangerous” relaxation of safeguards, however, the government has dismissed these claims, saying the crisis “means that in some circumstances, local authorities, providers, agencies, and partners may find it more difficult to meet the full range of statutory duties relating to vulnerable children”.

What changes have been imposed?

The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 relax or remove around 65 legal protections across 10 separate acts on issues including social worker visits, adoption and fostering processes and children’s residential care.

Some of these changes include:

  • Social worker visits to children in care – can now be via a phone call but clear 6-weekly duty removed

  • Six-monthly independent reviews of a child’s care no longer mandatory

  • Adoptions to “proceed swiftly”

  • Relaxation of notification duties in respect of criminal offences (fostering)

  • Placement plans removed for kinship care

  • Care standards weakened in children’s homes

  • Twice-yearly Ofsted inspections of children’s homes no longer mandatory

  • Monthly independent visits and reports on children’s homes no longer mandatory

  • ‘Emergency’ foster care placements to last for nearly six months

  • Short breaks can last for 75 days without care planning safeguards

  • Local authority action in relation to children who are privately fostered becomes “reasonably practicable”

  • Adoption agencies no longer required to establish adoption panels, and fostering panels become optional

  • Suitability of foster carers can be assessed in the absence of health information and criminal records checks 

  • Independent review of children’s social care complaints to take place when “reasonably practicable”

  • Children in residential care who show symptoms of Covid-19 can be deprived of their liberty

  • Fostering services are no longer required to report infectious disease to Ofsted

When were the changes made?

The amendments were imposed on 24 April, just 24-hours after being passed through parliament on 23 April.

On 6 May, the Department for Education published updated guidance for professionals working in children’s social care laying out the changes. The document is designed to give more clarity, DfE said.

The guidance states that any use of the flexibilities, which cover issues including children’s social care processes, adoption, foster care and residential placements, should only be used in specific circumstances such as:

  • 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 focussing 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.

It adds that any use of the flexibilities should be approved at chief officer level in local authorities, and top tier management level in other services and providers and reported to Ofsted.

The guidance also reiterates that the temporary measures are due to expire on 25 September, however, the memorandum published alongside the changes states that  could also be reviewed and extended in some specific cases.

Was there any consultation?

The changes bypassed parliament’s usual 21-day period of consultation and parliamentary scrutiny.

Children’s minister Vicky Ford said, at the time that “waiting 21 days will put extraordinary pressure on local authorities, providers and services to try to meet statutory obligations while continuing to provide care for vulnerable children and young people during the outbreak”.

The memorandum detailing the changes to secondary legislations, published by Ford, states sector leaders including the Association of Directors of Children’s Services (ADCS), Local Government Association (LGA) and Ofsted were consulted over the changes before they were laid before parliament. Children’s commissioner for England Anne Longfield was also informed of the plans but did not see the document laying out the changes, the memorandum adds.

Answering a parliamentary question from shadow early years minister Tulip Siddiq on 4 May, Gavin Williamson said: “We worked very closely with the ADCS to do everything we can to maintain the best support for all children when they are in care. The sector had asked specifically to make sure there were some flexibilities that were made available to them.”

However, Jenny Coles, ADCS president, told CYP Now that while the association had been involved in "high-level discussions" with the government about relaxing regulations before lockdown measures were imposed on 23 March, it "was not directly consulted on the detailed changes recently made to regulations relating to children’s social care".

On 30 April, Lord Howarth of Newport said, during an urgent question on the changes tabled at the House for the Lords, that the government’s decision to pass them using the Coronavirus Bill as a statutory instrument without a consultation and without parliamentary scrutiny amounted to “constitutional abuse”.

However, under-secretary of state for education, Baroness Berridge, confirmed that “minimal changes” had been made by amending secondary legislation to avoid using powers granted to parliament under the Coronavirus Act. 

How has the sector reacted?

Anne Longfield has backed calls for the changes to be revoked as she “does not believe that there is sufficient justification to introduce them. This crisis must not remove protections from extremely vulnerable children, particularly as they are even more vulnerable at this time.”

She added that she had heard anecdotal evidence that “staffing for social care is holding up well”.

“It therefore appears that bringing in these regulatory changes to ease excessive strain on a depleted workforce, and to do so without the opportunity for public scrutiny, is not justified,” said Longfield.

Others have branded  them “dangerous” and “unnecessary”, with Carolyne Willow, director of children’s rights charity Article 39, saying: “The whole document is about taking away, diminishing and undermining what has been built up for children over many decades.”

Katharine Sacks-Jones, chief executive of care leavers charity Become added: “While we understand the pressures local authorities are currently under, the vagueness of these changes risks the safety of those who need protecting the most. 

“We are also astonished that the government believes the impact of its amendments are limited given the greater risks vulnerable children and young people could now face.”

Others welcomed the clarity offered by DfE through the updated guidance but said more needed to be done to protect vulnerable children.

Enver Solomon, chief executive at Just for Kids Law said: “The introduction of additional safeguards in the updated guidance to ensure that the new regulations on children’s social care are monitored by Ofsted and approved at the highest level of local government are important protections to ensure these measures are only used when absolutely necessary.

“Whilst we recognise the pressures facing councils we are still not convinced of the need to weaken vital legal protections for the country’s most vulnerable children at a time when they need their corporate parents more, not less, and would like to see the regulations withdrawn.”

A statement from the National Children’s Bureau said: “NCB believes it should be reiterated that local authorities must continue to respect the fundamental principle of the existing legal framework: that decisions are made on a case-by-case consideration of the best interests of each individual child. As it stands, councils could mistakenly apply the powers in blanket fashion to all the children they care for. Similarly, the guidance should be unequivocal when it comes to the need for local authorities to continue other vital safeguarding activity such as multi-agency child protection conferences, throughout the crisis.”

Could the changes be withdrawn?

It is not known if the changes will be withdrawn following outcry from high-profile sector leaders, including the children’s commissioner but Carolyne Willow has threatened DfE with legal action if they are not.

Labour leader Keir Starmer has also tabled a humble address, also known as a “prayer motion", to be presented before the Queen asking for the amendments to be annulled. The address has been supported by nine MPs including Siddiq, shadow Education Secretary Rebecca Long-Bailey and former shadow education minister Emma Lewell-Buck. 

However, The last time such a motion was passed in the House of Commons was in 1979.

Has this happened before?

Sector experts have warned that the changes made as part of The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 echo two previous failed attempts to change statutory duties to vulnerable children.

In 2017, campaigners celebrated a government U-turn on so-called exemption clauses proposed as part of the The Children and Social Work Bill. The clauses would have allowed councils to apply to opt out of some social care legislation. 

Provisions contained in the Bill during its first reading, were intended to give councils the ability "to test different ways of working" within children's services by freeing them from "requirements imposed by children's social care legislation".

Clauses 32, 33 and 34 were scrapped by parliament at its report stage. 

However, 18 months later, DfE issued a "mythbuster" document which referenced a number of elements of statutory guidance that "act as a barrier to good practice and outcomes for children and families" have been highlighted - with clarification given on what is required by law.

It posed 10 questions on a range of topics including the frequency of social work visits and fostering. 

The DfE said the document “did not seek to change the law, merely clarify elements of statutory guidance”, however, it was withdrawn following a judicial review launched by Article 39. 

At the time DfE said it had taken the decision to remove the guidance from circulation, rather than "divert time and public money to litigation".

Experts have likened both the exemption clauses and “mythbuster” document to the recent changes.

Jonathan Stanley, children’s residential care consultant with the National Centre for Excellence in Residential Child Care said: “The government seek to tie their changes to coronavirus but history shows two previous failed attempts to bring in these changes: the Children and Social Work Bill and then guidance with the title ‘mythbuster’ only two years ago.”

Mark Kerr, chief executive of the Centre for Outcomes of Care, added: “The language, changes and whole narrative around this deregulation, are the same as previous attempts by government to relax or remove child protection duties over the last three years.”

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