Everyone agrees: the coronavirus lockdown is putting particular pressure on vulnerable children. They are more at risk of violence and abuse when confined to their own homes and less able to seek help. Only 5% of them are believed to be at school, where they have a right to go despite the lockdown.
So the Government will have put much thought into helping under-pressure local authorities and their social workers to have the emergency legal backing to perform their child safeguarding duties in these particularly challenging circumstances, right?
Wrong. In fact what has most exercised the Department for Education is launching an experiment to reduce or remove certain statutory local authority child safeguarding duties – using the coronavirus crisis as an excuse. Hence the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – a piece of secondary legislation published by the Government on 23 April in a Parliament of MPs scattered around a country on lockdown and passed into law the morning after.
The worry is that the Government has used coronavirus as a stalking horse for an experiment in what it has already been trying to do for some years despite Parliament’s opposition – producing a less regulated system of child safeguarding. The fear is that emergency legislation is actually crafted as a response to a longstanding Conservative bugbear – that councils should be relieved of safeguarding obligations – rather than a response to the Covid-19 emergency.
The statutory instrument
On April 3 the Government had first issued its thoughts on relaxing safeguarding duties during the pandemic in “guidance to local authorities on children’s social care”. This seems to have been a softening up exercise for the April 22 statutory instrument – which otherwise appeared without warning as part of a series of emergency government coronavirus orders (see the Hansard Dashboard).
The guidance framed the problem as one of social workers being unable to fulfil statutory obligations during the lockdown. It suggested it could be overcome by having social workers simply record the circumstances and explaining their decision:
“Where authorities need to deviate from standard practice and statutory requirements, we expect that they will keep clear records to capture the rationale and risk assessment for that.”
This looked like a get out of jail free for local authorities, a permission from the Government to fail to fulfil statutory requirements, as long as good reasons were given. There was no suggestion of any consultation on it. It was more of a hint, a pointer. The hint was dropped several times elsewhere in the guidance: “we accept that local authorities will struggle to meet some of their statutory duties at the moment”; “local authorities should continue to do their best to meet statutory duties”; and “We know that local authorities and local safeguarding partners will want to continue to meet their statutory duties as far as they can, but there will be times in the current circumstances when this is not possible” (emphases added).
There was some protest over this guidance. A joint letter was sent on 17 April by three children’s advocacy bodies (see below) to Gavin Williamson, Secretary of State for Education, saying the guidance should be urgently amended to remove the impression that local authorities can fail to follow the law. It said:
“we are alarmed that this new guidance suggests that local authority statutory duties can be dispensed with, when there have been no changes to legislation to allow this. In doing so, the guidance risks unlawfully removing vital, hard-won statutory safeguards.”
The letter explained that as the guidance stood “local authorities, parents, young people and others may mistakenly believe there have been significant changes to the Children Act 1989, which is not the case”.
Quite right too. If brought before a court, local authorities might find judges placing a good deal more emphasis on the legislation passed through two Houses of Parliament and signed into law by the monarch than a hurried piece of guidance put together by civil servants in the midst of a crisis. The law is the law; guidance can be helpful in explaining the law – it can’t repeal it.
So did Williamson change the guidance? No, he changed the law. Or he thinks he did (see below). On the afternoon of 23 April the statutory instrument was published (laid before Parliament) purporting to lift some of the statutory duties on local authorities regarding safeguarding, and the next morning it came into force. One cannot help thinking that this was the plan all along and that the pandemic was a handy excuse for pursuing the deregulating agenda.
The children’s minister, Vicky Ford was asked (on 22 April, the day before publication of the statutory instrument) whether the Government would be drawing lessons from the suspension of some of the statutory duties “with a view to dispensing with those statutory duties” altogether in future.
She said yes: “That’s exactly the point about why we are laying in place the statutory instrument in order to implement flexibility on certain statutory duties”. She considered less regulation (generally, not just under lockdown) is just what local authorities require to “identify where there is a need for flexibility and make sure they can get that if they need it” (Commons Education Committee, 22 April 2020; see fuller context below).
This “flexibility” was exactly what the Government had argued for as a general principle before Covid-19 produced an excellent excuse to launch the experiment – surely at the worst possible moment to know whether it would work in normal times. As one of the children’s rights groups, Article 39, points out:
“Four years ago, the Government tried unsuccessfully to grant local authorities the power to opt out of their children’s social care duties for up to six years – as a trial for removing the duties altogether. The move was widely and strongly opposed. Ministers were forced to backtrack in March 2017. Further attempts were made in 2017/18 and then 2018/19.”
So the Government now has its trial – flying in the face of a Parliament that had upheld the legislation and the principal of the legal duties on councils. The director of Article 39, Carolyne Willow, said:
“Having spent hours going through the statutory instrument line-by-line, I haven’t been able to find a single new protection for children. The whole document is about taking away, diminishing and undermining what has been built up for children over many decades.”
The legal issue
But will it work? Indeed, is it even lawful? Hasn’t the Department of Education passed into law a social experiment in deregulation of child safeguarding under cover of the pandemic crisis simply in order to thwart the substantive legislation (ie the various pieces of safeguarding legislation the statutory instrument amends)?
Statutory instruments are generally passed with very little parliamentary scrutiny, though usually with 21 or 40 days for parliamentarians to look at them and object. They are not normally simply published one day and put into force the next. The justification for this was the lockdown and the consequent need to relieve councils of duties immediately.
Statutory instruments are intended to allow ministers to make necessary minor (and sometimes more significant) amendments to Acts of Parliament as requirements change. And the substantive Act normally gives the relevant Secretary of State such a power.
As a result of the limited parliamentary oversight (even under the 40-day process the Commons and House of Lords don’t examine them and cannot amend them, though they can halt them) they are not regarded by judges as having the force of the substantive Acts of Parliament they relate too. The judges are focused on the will of Parliament, and it would be very difficult to argue that Parliament wished for its will, as expressed in the Act, to be balked by a Secretary of State.
The purpose of this particular statutory instrument is, on the face of it, to protect local authorities during the pandemic lockdown against legal action for failing to meet duties in a situation where it would have been impossible or wholly impractical. The explanatory notes say: “The amendments are being made in order to assist the children’s social care sector during the coronavirus pandemic.” A memorandum attached to the SI says:
“The changes prioritise the needs of children, whilst relaxing some administrative and procedural obligations to support delivery of children’s services but maintaining appropriate safeguards in such extraordinary circumstances.”
Yet Vicky Ford has blown the gaff on this. Her talk of “flexibility” and her admission that this, in effect, is an experiment to test a Conservative government’s pet scheme suggests the real agenda – extending discretion to local authorities about whether they act on what are currently the statutory requirements. That would seem to have nothing to do with the pandemic emergency, and crucially is well beyond the original purpose of the pieces of legislation “amended” by the statutory instrument: to impose specific duties on local authorities. Hence it would seem to be beyond the powers of a Secretary of State via a statutory instrument used for an emergency purpose with no parliamentary oversight. It would be interesting to see a court challenge through a judicial review.
• The changes brought about by the statutory instrument are set out in the Article 39 post, and reprinted below.
• The Hansard Society here looks at the coronavirus statutory instruments produced by the Government.
• Gavin Williamson’s letter to the Education Select Committee of 22 April (pdf) including thoughts on safeguarding
• Here is what the Children’s Commissioner for England had to say on April 25:
“Hundreds of thousands of children in England are living with a cocktail of secondary risks that Covid-19 may exacerbate: lack of food in the house, homelessness, sofa-surfing or living in cramped living conditions, neglect, domestic abuse, substance abuse and parental mental health problems.”
• The British Association of Social Workers (BASW) has commented on the statutory instrument, saying, inter alia:
“There is an absence of a clear, documented and facilitated process for the rationale, structured introduction and delivering of the Regulations for local authorities. … 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.” (A further BASW statement is here.)
The exchanges at the Education Committee 22 April 2020
Jonathan Gullis: Minister [Vicky Ford], do you expect local authorities to fulfil their statutory duties to vulnerable children? If your answer is yes, can you please tell us why your guidance allows for a deviation from statutory requirements? If your answer is no, is it not unlawful for your guidance to allow local authorities to deviate from their statutory duties without Parliament’s approval?
Vicky Ford: Statutory duties are really important but we do recognise that in these completely unprecedented times some local authorities and partners will struggle to meet the full range of statutory duties. As you know, the Coronavirus Bill enabled Government to amend underlying legislation. We are amending 10 sets of the regulations, which are coming before Parliament in the coming week, and which will make temporary changes to provide additional flexibility in meeting statutory obligations. We are focused on giving flexibility in lower-risk areas so that local authorities can focus on their core safeguarding areas. For example, take the issue of serious incidents. A local authority must report, must do its first rapid assessment to see what lessons need to be learned, but they will have more flexibility as to how long they can take to do the full investigation. On the first two issues, it is really important that in areas of high risk, local authorities must understand what is going. On the second, there is some flexibility there; it is lower risk. We have gone through various different areas to make sure that the local authorities can have flexibility. Local authorities must always, in each of the areas we have given flexibility, use what we call “reasonable endeavours” and in some cases, “best endeavours”, which are legal tests, to make sure that they are still endeavouring to meet those requirements but they will have that legal flexibility.
Jonathan Gullis: Minister, is it enough that local authorities should “do their best” to meet statutory duties to care leavers? If you do not expect local authorities to meet their statutory duties, why was provision not made for that in the Coronavirus Act?
Vicky Ford: Care leavers have absolutely been in the forefront of my mind. They are some of the most vulnerable young people we have out there. Local authorities have been given a strong message. The Secretary of State sent them a strong letter yesterday about protecting those most vulnerable groups. Local authorities have been told that they can use the funding they have been given to give financial support or other support to care leavers. The message that no care leaver should need to leave their home, including both 18-year-olds and those who are about to turn 21 who are using the staying put initiative that this Department has been funding over the years to enable people to stay put until an older age, do not have to leave their settings if they do not want to. Care leavers are some of the most vulnerable young people in our society and we must care for them first.
David Simmonds: Minister [Vicky Ford], coming back to this point about statutory duties, a review by the Department has found that some of statutory duties are leading to local authorities having to undertake activities that are not useful or purposeful, in particular, some of the reviews that are required under the statutory duties—help by foster carers, prospective adopters, the children in the care system—are found not to have improved their experience. Is the Department learning, and will it learn, from the suspension of any of those statutory duties, to see where it has exposed the fact that they were not leading to purposeful activity, with a view to dispensing with those statutory duties and freeing people up to do more useful things in future?
Vicky Ford: That is exactly the point, David, about why we are laying in place the statutory instrument in order to implement flexibility on certain statutory duties. We are focused on giving that flexibility on the lower-risk areas in order to make sure that the experts on the ground can be focused on what they need to do now. It does need to be done in a risk-assessed way. I signed the statutory instrument last night and it will be coming before Parliament as a new statutory instrument and that will do exactly what we need, which is having worked with directors of children’s service to identify where they need this flexibility to make sure that they can get that, if they need it. They should always try to do first what they normally do—they have to use their reasonable and best endeavours, but it will give them legal flexibility. Safeguarding must come first in every case. David Simmonds: Exactly what I was hoping to hear, Minister. Thank you.
Key changes in the SI
- 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 no longer necessary for kinship care
- Care standard weakened in children’s homes
- Twice-yearly Ofsted inspections of children’s homes no longer required
- Monthly independent visits and reports on children’s homes no longer mandatory
- ‘Emergency’ foster care placements to last for nearly 6 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 (still have to be obtained though not clear when)
- “Reasonably practicable” caveat added to timings of independent review of children’s social care complaints
- Children’s homes a place of detention for children potentially infected with COVID-19
- Fostering services no longer required to report infectious disease to Ofsted