By Charlotte Webster-
The Court of Appeal is due to hear a legal bid by charity Article 39’s seeking to quash amendments introduced by the British Government during the coronavirus crisis in relation to children in care.
The hearing is over a string of amendments made removing duties in relation to children in care during the height of the coronavirus last April. The group of objectors believe the amendments were unlawful and challenged a High Court ruling which was favourable to the government.
The High Court judge presiding over the case, Mrs Justice Lieven, however warned that had the country not been in the grips of a pandemic, with the potential to radically reduce social care staffing numbers, she “would have been minded” to rule differently.
Last month, Article 39 was granted permission to take its legal challenge over Statutory Instrument 445 to the Court of Appeal. In granting permission, the Rt. Hon. Lady Justice Macur said the appeal has a real prospect of success on the basis that the Children’s Commissioner, at least, was not consulted.
The High Court agreed that the legal protections taken away or weakened overnight in April, during the peak of the virus are important child safeguards, not minor changes or administrative burdens. The judge also ruled that the Education Secretary did not act unlawfully in failing to consult children and young people, the Children’s Commissioner for England and other children’s rights organisations, including Article 39.
The group insist that the Department for Education should have undertaken some form of public consultation, and sought the views of the Children’s Commissioner – our country’s statutory children’s rights body. Private and confidential exchanges took place between the Department for Education and local authorities and providers.
New Regulations
New regulations by the Department Of Education last Friday will extend the suspension of timescales for Ofsted inspections of children’s homes and other settings to 31 March 2021. In the same regulations, provision was made to allow virtual contact / visits when face-to-face visits are not possible due to COVID-19, and to allow fostering and adoption approval processes to continue while awaiting medical information
The amendments were opposed by not just the Children’s Commissioner for England, but also numerous children’s charities, Labour and the British Association of Social Workers, on the grounds that they would reduce safeguards for children in care. The group say they would never have objected to regulatory changes genuinely connected to COVID-19.
They added that ”had there been a public consultation before Statutory Instrument 445 was made, we would have set out the serious risks to children and strongly advised proportionate changes and for COVID-19 to be written into the regulations”.
Disputed Changes
The disputed changes made were numerous. They included rules that make adoption and fostering panels discretionary. Permit a looked-after child to be temporarily placed with an unconnected person who is not an approved foster carer, and removing the oversight of a local authority nominated officer from the process.
They also included the removal of duties governing visits within fixed timescales to children in care, and replacing them with a stipulation that these be conducted “as soon as is reasonably practicable”.
The requirement for reviews of looked-after children’s care, beyond the first two reviews to take place at least every six months were also removed, replacing this with the requirement that they take place where “reasonably practicable”.
Replacing the requirement that independent individuals visit children’s homes at least once a month, with one saying that reasonable endeavours should be made to do so.
The decision to restore most of the duties follows a consultation in which the DfE also proposed to maintain a short list of flexibilities, contained in a new statutory instrument now laid before Parliament, until 31 March 2021.
Statutory Visits
Most concerning were the provision for statutory visits to be conducted virtually in circumstances where children and families are required to self-isolate. A range of respondents to the consultation, which included sector bodies, charities and individual children, commented that future consideration should be given to enabling a “hybrid” contact model, with some young people preferring virtual visits.
But the judge who reviewed the children’s rights charity’s case nonetheless sharply criticised the DfE’s approach. Mrs Justice Lieven warned that had the country not been in the grips of a pandemic, with the potential to radically reduce social care staffing numbers, she “would have been minded” to rule differently.