Rights group threatens DfE with legal action over relaxation of statutory duties

Fiona Simpson
Thursday, May 7, 2020

The government has been threatened with legal action over changes to council’s statutory duties to vulnerable young people after publishing guidance aimed at clarifying the use of amended legislation.

Article 39 director Carolyne Willow has called for the changes to be revoked
Article 39 director Carolyne Willow has called for the changes to be revoked

On Wednesday (6 May), the Department for Education published updated guidance around changes to legislation surrounding children’s social care which was passed by parliament on 24 April, bypassing the usual 21-day consultation rule.

The new 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.

However, children’s rights charity Article 39, represented by legal firm Irwin Mitchell, has threatened DfE with legal action if the changes are not withdrawn.

In a letter sent to Education Secretary Gavin Williamson, to which he has 14 days to respond, the charity calls for six specific changes to be revoked:

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

Artticle 39 director Carolyne Willow described the changes as “an outrageous attack on safeguards”.

She said: “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. 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.”

Oliver Studdert, partner at Irwin Mitchell, added: “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 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.”

Children’s charity Just for Kids Law welcomed clarity from the government on the use of the changes but has backed calls for them to be revoked.

Enver Solomon, chief executive at Just for Kids Law said advising local authorities to meet their statutory responsibilities “is the right approach and the government should never have suggested any alternative was acceptable”, adding: “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.”

However, he said: “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.”

The National Children’s Bureau (NCB) said that more needed to be done to ensure the use of the flexibilities “does not place vulnerable children at greater risk”.

A statement said: “NCB is concerned that the monitoring arrangements are not yet sufficiently robust to provide a clear picture of when and where these new powers are used. In some areas, these changes may already have been made, but so far there is no requirement for this information to be collected or analysed nationally. To get a clear understanding of the impact on children and young people, this needs to change.

“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.”

It adds that the government needs to further warn councils that the changes to legislation expire on 25 September following concerns they could be made permanent.

Sector leaders have raised concerns that the coronavirus crisis may have been used to pass changes previously rejected as part of the 2017 “exemption clause” and a “myth-busting guide” published by DfE in 2018 which was later removed following a judicial review.

Jonathan Stanley, children’s residential care consultant with the National Centre for Excellence in Residential Child Care said: “The removal of these rights will definitely go on until September, and then only be reviewed. The loss may be extended because this crisis is being used as an opportunity by government to take forward plans they have tried before. The government seek to tie their changes to coronavirus but history shows two previous failed attempts to bring in these changes: the 2015 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. If the government continues to state that these changes are based on the needs of the sector because of Covid-19, they risk losing credibility, at a time when they need frontline professionals to have trust in them.”

Yesterday, Labour Party leader Kier Starmer 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 shadow Education Secretary Rebecca Long-Bailey and former shadow education minister Emma Lewell-Buck.

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