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More coronavirus regulations and the implications for children in care

On 24 April 2020, the Adoption and Coronavirus (Amendment) Regulations 2020 (“the regulations”) came into force. The regulations make sweeping and unprecedent temporary changes to the legislation which affords basic protection to children in care, many of whom have or will come into contact with the youth justice system. The Government has justified the removal of these protections by stating that it is necessary ‘to assist the children’s social care sector during the coronavirus pandemic’.

The regulations are temporary; they are set to expire on 25 September 2020 but this can be extended if parliament votes to renew the regulations before then.

The regulations have been criticised by children’s rights lawyers and campaigners, as well as the Children’s Commissioner for England who said the changes should be revoked, as they are not sufficiently justified by the pandemic. It is understood that the children’s rights charity, Article 39, is bringing a legal challenge to the regulations, but for now they remain in force.

Some of the key changes introduced by the regulations are set out below.

Social worker visits to children in care
The requirement that social workers must visit children living in care (be that foster care, a children’s home or another placement) within one week of them going into care, and every six weeks for the year after that, has been relaxed. Instead, while the regulations are in force, if social workers are unable to visit within these timescales they must do so ‘as soon as reasonably practicable’ thereafter. The changes contained in the regulations also allow these ‘visits’ to be made by phone or video call.[1]

The clear duty upon social workers to visit children in care in person every six weeks has therefore been temporarily removed and replaced with a much weaker duty: that they must visit ‘as soon as reasonably practicable’ after six weeks, and the visit can be done by way of a phone call.

Timescales for preparation of placement plans
The regulations amend the requirement for a local authority to complete a placement plan for a child once they have been placed in care from within five days to ‘as soon as reasonably practicable’.  This also applies to children who have been placed in local authority accommodation on remand.[2]

This means that local authorities are no longer required to produce within five days a plan for the child’s placement setting out, for example, how on a day to day basis the child will be cared for; arrangements for contact with their parent(s) or other family members; the details of the arrangements for the child’s health including their GP details; the details of their education and training. Placement plans are critical to ensuring that a child’s needs are met in a placement. Local authorities are now at liberty to prepare placement plans – even for children on remand in local authority accommodation – not as soon as they are placed, but ‘as soon as reasonably practicable’ thereafter. This means that, during the pandemic, children may be left in placements for some time without a proper plan for them in place.

Timescales for independent reviews
Prior to the regulations coming into force, the law required an independent review of each child in care (1) within 20 days of the child going into care; (2) three months after that and (3) every six months thereafter.

The requirement for an independent review of each child in care every six months has been relaxed by the regulations, so that an independent review must now only take place ‘where reasonably practicable’ after the initial three-month review.[3]

This means that – while the regulations remain in force – children will no longer have the same regular opportunity to raise issues about their care and to have their placement independently scrutinised.

Emergency foster placements for up to six months
Children can now be placed with emergency foster carers – for example if their long-term carers fall ill – for up to 24 weeks, rather than six days. This will be possible even if the foster carers have not been approved to care for the number of children placed with them.[4]

This is an extraordinary change. As recognised by the Children’s Commissioner, ‘while some flexibility if carers fall ill is understandable, the change to 24 weeks is excessive.’

 Temporary foster carers

Prior to the regulations coming into force, local authorities had the power to temporarily approve a child’s relative, friend or other connected person as a foster carer for a period of up to 16 weeks (normally while a longer term placement is sought).

The regulations have extended this period to 24 weeks and removed the requirement for the temporary foster carers to have an existing family or other connection to the child. Local authorities can therefore now approve anyone who meets the requirements as a temporary foster carer, rather than only those who are connected to a child. Worryingly, the amendments also mean that a child can be placed outside of their local area with a carer who is not connected to them.[5]

Timing of independent review of complaints from children in care
Adults and children who make a formal complaint about children’s social care have the legal right to request that it be investigated by a review panel, made up of three independent people.

The regulations have relaxed the timescales for complaints to be considered by independent review panels. Previously, once a complainant requested an independent review panel, the panel was required to meet within 30 working days of the request. Now, the panel must meet 30 working days ‘or as soon as is reasonably practicable’ following the complaint. The requirement for the panel to send a report to the complainant and the local authority within five working days of its meeting has also been relaxed to within five working days ‘or as soon as is reasonably practicable’ following the meeting.[6]

Deprivation of liberty of children in care homes
Prior to the regulations, a child could only be deprived of their liberty in a care home if this was authorised by a court order (from the inherent jurisdiction of the Family Court, or the Court of Protection, depending on the age of the child). This is an important safeguard that protects children against unlawful deprivations of liberty and potential infringements of their rights under Article 5 of the European Convention on Human Rights.

Now – and for the duration of the regulations – a child can be deprived of their liberty in a care home if they are showing symptoms of coronavirus, in accordance with the public health powers contained in Schedule 21 of the Coronavirus Act 2020.[7]

Schedule 21 grants powers of detention on public health officers, constables and immigration officers in relation to persons who are ‘potentially infectious’.  For more on the powers conferred by Schedule 21, see YJLC’s legal update here.

As pointed out by the Children’s Commissioner, as a bare minimum, guidance for children’s homes and public health officers setting out how this can be enforced, and a clear scheme for how these deprivations of liberty will be monitored, will be essential to ensure that children’s rights are protected.

Inspections of care homes
As a result of the regulations, Ofsted inspections of children’s care homes no longer need to take place twice a year.[8] Ofsted retain their powers to inspect, but while the regulations are in force are no longer under a duty to do so.

Independent visits to children’s care homes also no longer have to occur monthly, so long as ‘reasonable endeavours are made’ to do so.[9]

Commentary

The above is not an exhaustive list of the amendments made to children’s social care legislation by the regulations, but merely a snapshot of the key changes.

Many children who come into contact with the youth justice system are, have been, or will end up living in care. These changes remove crucial legal safeguards for children in care, during this time of national crisis when those protections are most needed.  Practitioners should be aware of the dilution of these safeguards, and seek advice from a community care lawyer if they have concerns about the rights of a particular child in care.

This legal update is written by Mary-Rachel McCabe, a barrister at Doughty Street Chambers.

Mary-Rachel McCabe is a barrister at Doughty Street Chambers, specialising in community care and mental capacity law, with a particular focus on children’s rights cases. She tweets @MaryRachel_McC

 

[1] Regulation 28(1) of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended by Regulation 8(13) of the Adoption and Coronavirus (Amendment) Regulations 2020

[2] Regulations 9(2) and 47(3) of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended by Regulation 8(4} and 8(17) of the Adoption and Coronavirus (Amendment) Regulations 2020

[3] Regulation 33(2) of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended by Regulation 8(14) of the Adoption and Coronavirus (Amendment) Regulations 2020

[4] Regulation 23 of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended by Regulation 8(10) of the Adoption and Coronavirus (Amendment) Regulations 2020

[5] Regulations 11(4)(a) and 24 of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended by Regulation 8 of the Adoption and Coronavirus (Amendment) Regulations 2020

[6] Regulations 19 and 20, Children Act 1989 Representations Procedure Regulations, as amended by Regulation 6 of the Adoption and Coronavirus (Amendment) Regulations 2020

[7] Regulation 20(3) of the Children’s Home Regulations 2015, as amended by Regulation 11(4) of the Adoption and Coronavirus (Amendment) Regulations 2020

[8] Regulation 27 of The Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (Fees and Frequency of Inspections) (Children’s Homes etc.) Regulations 2015, removed by Regulation 12 of the Adoption and Coronavirus (Amendment) Regulations 2020

[9] Regulation 44 of the Children’s Home Regulations 2015, as amended by Regulation 11(6) of the Adoption and Coronavirus (Amendment) Regulations 2020