BASW policy brief on The Adoption and Children (Coronavirus) (Amendment) Regulations 2020
Policy note
The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, henceforth described here as ‘the Regulations’, were published on Thursday 23 April and came into force on Friday 24 April.
It is easy to lose sight of how significant ‘the Regulations’ are: partly because of the title which fails to convey the breadth of the changes, partly the way ‘the Regulations’ are drafted as amendments to some ten other pieces of legislation and statutory guidance[i] (which then involves accessing ten other pieces of legislation) plus other ‘connected’ law and statutory guidance and partly how the accompanying explanatory guidance is drafted.
The Regulations, among other things, make significant changes to statutory visits and statutory reviews for looked after children, fostering and adoption panels, adoption agencies, fostering agencies, private fostering, children’s homes, complaints and representations amongst other areas.
A great deal of the text of the Regulations uses the phrase ‘as soon as is reasonably practicable’, thus while the Regulations lower ‘the floor’ of some key standards, local authorities are perfectly at liberty to maintain the current (higher) standards.
The Regulations expire on 25th September (Section 14) but may be renewed subject to a review by the Secretary of State (Section 13).
This is new and developing area, this note has been developed at pace, and will need to take into account further future expert opinion from a range of sources.
Statutory visits and reviews
This briefing focusses on two specific areas of change: statutory visits and statutory reviews for looked after children.
- Statutory Visits. Social work visits and talking to the child are key to establishing the safeguarding and well-being of a child. Section 28 of the ‘Care Planning, Placement and Case Review Regulations 2010’ requires the minimum of a social week visit within one week of a new placement, thereafter every six weeks, and then in a long-term placement every three months. The Regulations (Section 13) amend this to only require a visit ‘as soon as is reasonably practical’ and also states the ‘visit’ can be ‘conducted by telephone, video-link or other electronic means’.
- Statutory Reviews. Regular ‘looked after child ‘reviews, are key to the well-being and safeguarding of a child, ensuring all professionals work together in the child’s interests, and subjecting the process to the independent scrutiny of the Independent Reviewing Officer. Section 33 (2) of the ‘Care Planning, Placement and Case Review Regulations 2010’ requires ‘the second review must be carried out not more than three months after the first, and subsequent reviews must be carried out at intervals of not more than six months.’ The Regulations amend this six-month requirement to ‘where reasonably practical thereafter.’
BASW notes:
Covid -19 presents a national threat. Flexibility is required to meet this threat. Social workers exercise professional judgement within a framework of law, policy and appropriate organisational accountability. This professional judgement is particularly valuable in working with the reality of Covid – 19.
There is an absence of a clear, documented and facilitated process for the rationale, structured introduction and delivering of the Regulations for local authorities. It is worth noting the parallel processes for the introduction of changes to the Care Act. The changes (known as ‘Easements’) were proceeded by ethical guidance, practical guidance on criteria for applying the Easements and finally the requirement of a formal written declaration by the Director that the Easements would be adopted by the local authority. In contrast, none of these over-arching safeguards and standards are in place for children. The risk is that significant changes are ‘dribbled in’ on a case by case basis with no explicit rationale either within or between local authorities.
It is odd that the one-page explanatory note that comes with the guidance omits to address perhaps the most high-profile changes: i.e. to statutory visits and reviews for looked after children.
Some of the changes in the Regulations seem suspiciously close to the ‘freedoms’ that were in the original draft of the Children and Social Work Bill, clauses that were subsequently thrown out by a coalition of Parliamentarians, after a vigorous campaign by civil society groups and service users.
The safeguards against the continuation of these changes after 26th September 2020 seem absolutely minimal (a review by the Secretary of State).
Legislation and statutory guidance is often accompanied by a declaration of compatibility with human rights in law. The Regulations contain no such declaration.
Looked after children and young people are among the most vulnerable in society. Hard won rights in law are not simply bureaucratic processes but exist to protect children and young people and promote their well-being.
BASW will:
- Work with politicians of all parties, campaigning and civil organisations to ensure that any changes to children’s regulations are minimal, essential and have democratic oversight. In particular, these regulations must not be extended beyond September 26, 2020.
- Monitor the situation closely through our members on the ground, partner organisations, and service user groups.
[i] The Residential Family Centres Regulations 2002, the Adoption Agencies Regulations 2005, the Children (Private Arrangements for Fostering) Regulations 2005, the Children Act 1989 Representations Procedure (England) Regulations 2006, the Education and Inspections Act 2006 (Inspection of Local Authorities) Regulations 2007, the Care Planning, Placement and Case Review (England) Regulations 2010, the Fostering Services (England) Regulations 2011, the Children Act 2004 (Joint Area Reviews) Regulations 2015, the Children’s Homes (England) Regulations 2015, Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (Fees and Frequency of Inspections) (Children’s Homes etc) Regulations 2015.