This post, written by a member of the Doughty Street Chambers’ Children’s Rights Group, raises questions about the necessity and proportionality of the Adoption and Children (Coronavirus) (Amendment) Regulations 2020. It suggests that the Regulations are likely to breach the UK's international human rights commitments at a time when children need such protections more than ever. 

On 24 April 2020, the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 ('the Regulations') came into force, the draft having been published just the day before. The Regulations make sweeping and unprecedented temporary changes to legislation which affords basic protection to children in care in England. 

The Regulations are temporary; they are set to expire on 25 September 2020 but this can be extended.

The Children's Commissioner has said that the Regulations are unnecessary and should be revoked. The charity Article 39, which campaigns for children's rights in institutional settings, has said that safeguards for children have been destroyed and has threatened judicial review proceedings against the Department for Education, seeking withdrawal of the Regulations.

The explanatory memorandum which accompanies the Regulations claims that key stakeholders were consulted before the Regulations came into force. However, the unanimous reaction of those working in this sector is that they were not informed and not consulted. The Children’s Commissioner was not consulted and nor were social workers. It appears that British Association for Adoption and Fostering was not consulted. The Family Law Bar Association was also not informed or consulted.

In a letter to the Department for Education dated 30 April 2020, Rita Waters, Chief Executive of the National Youth Advocacy Service (NYAS), has called on the government to revise the Regulations. She writes:

Of those still in care, more than one in ten reports having no contact from their social worker since the lockdown began (which was more than three weeks before the survey went live). The number of safeguarding referrals made by NYAS professionals and volunteers during the lockdown have more than tripled compared to the same period last year. In this context, no responsible parent would reduce the protections for their children or stop checking on their welfare. It should be no different for corporate parents. 

The letter goes on to say:

We conduct vital work within the government’s own statutory framework of rights to support over ten thousand children and young people every year. Lack of notice of these changes, which came into force the day after they were published, has added confusion for professionals and practitioners who, in your words, are doing incredibly invaluable work to champion and support vulnerable children during this challenging period. There is one group that should have been consulted above all others: the care experienced children and young people who will be most affected by the legislation. 

Children's rights lawyers, campaigners and advocacy groups are concerned that the government has made significant changes to longstanding safeguarding regulations relating to the institutional care of children, without including the front-line of this sector in the discussion about which steps are proportionate in the context of the Covid-19 pandemic.

The government claims that the changes will help local authorities under pressure during the Covid-19 crisis. The changes go far beyond what may be necessary to ease the burden on local authorities' during the crisis, and will result in the state failing some of the most vulnerable children in society at a time when they are most in need of support. Many of the changes introduced by the 2020 Regulations have been proposed by the government several times in recent years (see here, for example) but they have not succeeded thanks to significant political opposition. 

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

Children in care

The law normally requires social workers to visit a child in care one week after they move to a placement and then every six weeks thereafter. This requirement has been relaxed by the Regulations, so that if social workers are unable to visit a child in care every six weeks, 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 (See changes to Care Planning, Placement and Case Review (England) - see Regulation 28).

The Regulations also 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.  

This change essentially 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. The immediate consequence is that, during the pandemic, children may be left in placements for a prolonged period of time without a proper plan for them in place.

Six-monthly independent reviews of a child in care are no longer mandatory (see Care Planning, Placement and Case Review (England), see Regulation 33 and 48). 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 put at ease by the Regulations, so that an independent review must now only take place ‘where reasonably practicable’ after the initial three-month review.  

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 (see Care Planning, Placement and Case Review (England) - see Regulation 23). This will be possible even if the foster carers have not been approved to care for the number of children placed with them.  Notwithstanding the need to free up resources in a pandemic, there has been nothing to explain what has been the logic to justify such an extraordinary gap of 24 weeks.

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.

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.

Depriving children of their liberty 

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. Now – and for the duration of the Regulations - a child can be deprived of their liberty in a children's home if they are showing symptoms of coronavirus, in accordance with the public health powers contained in Schedule 21 of the Coronavirus Act 2020.  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 this post by our Court of Protection team colleagues.

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.

Quality standards 

Children’s homes are normally required to meet quality standards. The Regulations also water down the need for experienced people to provide care to children in care homes. This is despite the fact that many of these children have suffered trauma and need skilled care.

Quality standards would normally dictate that children are cared for by people who have the experience, knowledge and skills necessary to deliver that care, and that staff are supervised by appropriately skilled and qualified people. This has been changed  to “as far as reasonably practicable” (see Regulation 6).  The evidential basis behind this change has not been made known by the government.

Adoption amendments  

Prior to the 2020 Regulations, the law would require an independent review of each child in care every six months, as set out in Adoption Agencies Regulations 2005 (amended under Part 3 of the 2020 Regulations).The law would also normally require an independent review of each child in care every six months. A first review must be carried out within 20 days of a child entering care, and a second after three months).

The sweeping new changes now provide that an adoption agency need not carry out a review required where it decides that it is not reasonably practicable to carry out the review of the child’s case, unless it is satisfied that a review is necessary to safeguard and promote the welfare of the child. This gives rise to a serious concern about the potential relaxing of standards and the real possibility that some local authorities may simply stop reviewing. Sometimes, children are subject to placement orders but remain in the adoption system for a significant period. The requirement for the review offers a safety net to these children.

This amendment runs contrary to the interests of vulnerable children and ignores the crucial role that reviews play. Adoption is a highly significant decision made by the state. Decisions about adoptions or the suitability of prospective adopters should be scrutinised. Reviewing a child’s circumstances is an essential requirement in protecting their rights.

Other changes include provisions to relieve adoption agencies of their duty to establish adoption panels, as will be discussed in further detail below. 

Compliance with international human rights standards

The government has bulldozered through the changes with no parliamentary debate or scrutiny and no consultation with civil society. If test cases are brought, the courts may be asked to adjudicate on whether the Regulations are compatible with the European Convention on Human Rights (ECHR). 

The compatibility of the changes with the European Convention on Human Rights or whether it is compliant with the UK’s obligations under the Convention on the Rights of the Child is doubtful. There has still been no statement of compatibility with the ECHR  from the government or about the proportionality of the changes generally.

Taking one of the above changes as an example, Regulation 4 says that the local authority may constitute an adoption panel(s).   It is not obligatory.  It is unclear why watering down such a basic safeguard would assist in the pandemic and whether there was any evidential basis to justify it.  It is unclear what alternatives were considered.

It also begs the question of why would local authorities would go through the additional step and expense of doing something that they are no longer required to do.  If a local authority decides not to put a case before an adoption panel, this may influence whether a placement order can be made and whether a there has been proper scrutiny applied to the decision regarding adoption taking account of the welfare of a child throughout his/her life. In some cases there are likely to be real difficulties in care planning and ultimately whether a placement order in a given case (which requires parental consent to be dispensed with) is compliant with Article 6 ECHR (the right to a fair hearing) and Article 8 ECHR (right to respect for family life).

The amendments may breach the UK's commitments under the UN Convention on the Rights of the Child (CRC). Adoptions panels serve a very important purpose for the most vulnerable children in our society and offer a final check to ensure that only those children who have no other alternative should be adopted.

Article 21 of the UNCRC states that:

States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:  

- Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;  

The new amendments to adoption clearly fall short of those obligations, particularly when seen alongside the changes as a whole including the call for adoptions to ‘proceed swiftly’.

It is unlikely that this amendment has been passed to take into account the difficulties of convening panels amidst a pandemic. No steps have been taken to explore alternative options such as convening remote adoption panels.

Conclusion 

The changes to the safeguards for children in care do not serve the best interests of children and do little to address the challenges of the current pandemic. 

The introduction of the new Regulations, has led to difficult exchanges in the Lords with further Parliamentary and legal challenges pending.  In an exchange with government minister Baroness Berridge on 30th April 2020, Labour peer Lord Howarth  questioned whether it was a “constitutional abuse for the government to have used the emergency coronavirus legislation to make a major and hugely controversial policy change of a nature that has been explicitly rejected by parliament in 2017”.

For children currently in care proceedings, either as a result of issues arising from the pandemic or unrelated matters, these changes have also been brought in at time of considerable strain in the capacity of the Family Court and the challenges of remote hearings in complex cases are still being realised (see P (A Child: Remote Hearing) (Rev 3) [2020] EWFC 32). For some children in care, long term decisions will need to be made in the middle of significant uncertainties and inadequacies within their care planning.

The economic impact of coronavirus will be felt hardest by the world’s most vulnerable children. Those already within the care system represent those who have already been through the most harmful life experiences and  who the state needs so desperately to protect.

By unnecessarily watering down essential safeguards, the UK government appears to heading down a slippery slope to failing some of its most at risk children whilst using a health pandemic to justify it. The Regulations should be withdrawn or urgently amended to restore safeguards.