THE ADOPTION AND CHILDREN (CORONAVIRUS) (AMENDMENT) REGULATIONS 2020: A COUP IN ALL BUT NAME?
For the last four years, successive Conservative administrations have attempted to remove vital safeguards which protect the lives and welfare of the most vulnerable children in our society. Between 2016 and 2017, whilst the Children and Social Work Bill was making its way through Parliament, the Government attempted to force through powers which would have allowed local authorities to ‘opt-out’ of their duties to children in their care. The strength of opposition to this and the force of the arguments mounted against the changes eventually led to a climb-down and the provisions were withdrawn.
On 21 April 2020, whilst everyone was focussed on staying at home, protecting the NHS and saving lives, Vicky Ford MP, the Under-Secretary of State for Children and Families at the Department for Education, made The Adoption and Children (Coronavirus)(Amendment) Regulations 2020. The regulations were sent to Parliament on 23 April and came into force the following day. The conventional requirement for such regulations to be available to Parliament 21 days before they come into force was casually waved aside as ‘not possible’. These regulations, which are to be in force until at least 25 September 2020, remove a raft of basic statutory protections for children in care. Essentially, the abandonment of many children’s rights, which was defeated in public debate and in Parliament three years ago, has been accomplished with a secret stroke of the Minister’s pen.
The Explanatory Notes say that:
‘The Department has shared proposed changes to regulations widely with the children’s social care sector via key stakeholders to consult and give notice that regulatory changes are coming into force.’
The truth is that no one, outside local authorities, Ofsted and departmental officials seems to have been consulted. Even the Children’s Commissioner was kept in the dark about this. In an unprecedented move, she has publicly set out her opposition to the regulations and says:
‘I would like to see all the regulations revoked, as I do not believe that there is sufficient justification to introduce them. This crisis must not remove protections from extremely vulnerable children, particularly as they are even more vulnerable at this time.’
In my view, Covid-19 is being cynically employed as a cloak to give an appearance of legitimacy to the most callous stripping away of children’s rights and protections. Nor should we deceive ourselves that these changes will be allowed to simply expire at the end of September. The changes are not necessary, they are not forced upon us by Covid-19. Any changes which might be needed to accommodate social distancing and safety could have been accomplished quite simply by allowing the existing obligations to be fulfilled remotely, rather than face-to-face. Vulnerable children should not be stripped of their most basic protections in this secret and dishonourable fashion.
Legislation by stealth: the making of the regulations
The first charge against this legislation relates to the secretive fashion in which it was brought into being. Parliament was excluded. Any people or bodies who could not be relied upon to support it unequivocally were kept out. Such conduct is, at the very least, highly suggestive of bad-faith. Good legislation should have nothing to fear from transparency. It may well also be unlawful and Article 39 has indicated an intention to issue judicial review proceedings to challenge them. If we still live in a democracy and not an autocracy, those proceedings deserve to succeed.
Paragraph 3.1 of the Explanatory Memorandum, published alongside the regulations, has this to say, by way of exculpation, for the way in which this legislation was brought into force and the utter contempt which is shown for Parliamentary and democratic procedures.
‘It is not possible in the case of this instrument to comply with the 21-day rule which requires relevant instruments to be laid before Parliament for at least 21 days prior to coming into force. Children’s social care resources are already stretched as a result of staffing shortages and an increased demand for services. The Department has consulted informally with the sector who have asked for these changes to be in force as a matter of urgency. Waiting 21 days will put extraordinary pressure on local authorities, providers and services to try to meet statutory obligations while continuing to provide care for vulnerable children and young people during the outbreak.’
It is worth dissecting this statement carefully. These regulations did not need to be approved by Parliament. They do not change any Act of Parliament, rather they change the detailed regulations which implement Acts of Parliament. Parliament had (in those Acts of Parliament) already given authority for such changes to be made under what is called the negative resolution procedure. Where this is employed, the Minister signs-off the statutory instrument and fixes a date for it to come into effect. It will then come into effect on that date unless a motion to reject it is passed by either House within 40 sitting days of Parliament. It is a way of dealing with uncontroversial changes without taking up valuable parliamentary time.
By convention, negative resolution statutory instruments should not come into force until at least 21 calendar days after the date when they are laid before Parliament. These regulations were laid before Parliament (in other words, published) on 23 April 2020 and came into force the following day. The purpose of the 21-day delay is so that new regulations can be looked at by the Joint Committee on Statutory Instruments which looks at the legal and technical aspects and by the Secondary Legislation Scrutiny Committee (‘SLSC’), which has the task of drawing policy issues to the attention of the House so that members have the opportunity to raise a motion rejecting the regulations. There are four situations in which a piece of secondary legislation should be referred to the House by the SLSC and the first of those is where:
‘(a) It is politically or legally important or gives rise to issues of public policy likely to be of interest to the House;’
The SLSC is not confined to drawing the House’s attention to defective pieces of regulation. It may do so, in neutral terms, simply because the issue is topical. I will argue when we look at the detail of some of the changes, that changes which impact on vulnerable children and their safety and welfare fall comfortably within all three of the heads of ground (a) above. I am supported in this view by the fact that the House of Lords SLSC has now drawn the regulations to the attention of the House ‘on the ground that they give rise to issues of public policy likely to be of interest to the House’.
The issue of why these regulations had to be rushed through as emergency legislation is made more obscure by the reply given on 18 May 2020 by Children’s Minister, Vicky Ford, to a question from Shadow Minister Tulip Siddiq. Asked how many local authorities had used the flexibilities granted by the new regulations, the Minister replied:
‘We are not currently aware of any local authorities having made use of the new flexibilities.’
What does this mean? On 23 April 2020, the regulations were needed so urgently by local authorities that Parliament could not be allowed 21 days to review and discuss them. Yet, 25 days later, no one has used them. Putting the matter at its lowest and respectful, the Under Secretary of State for Children and Families, who signed these regulations into law, has questions to answer about her statements in support of this legislation.
Paragraph 3.1 says that the Department has ‘consulted informally with the sector who have asked for these changes to be in force as a matter of urgency’. At first reading, this seems to be a reassuringly sensible and correct approach; it is only after a second or third reading that the realisation begins to dawn that this passage is utterly devoid of meaning, or can mean anything to anyone. As Lewis Carroll put it in Alice Through the Looking Glass:
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
Ask, what does ‘consulted informally’ actually mean? It can mean anything at all, from a short telephone call to detailed correspondence. However much, or little, as was done – it means just that. Who was consulted? We are told it was ‘the sector’. Leaving aside the pedant’s objection that nouns do not have opinions, who is actually being referred to here? The passage gives no clues.
For an answer, you must press on to paragraph 10.1 of the Explanatory Memorandum which says;
‘Key stakeholders across the children’s social care sector were consulted including Ofsted, the Association of Directors of Children’s Services, the Local Government Association, Principal Social Workers and Practice Leaders in local authority children’s social care. The Children’s Commissioner was also informed.’
What emerges then, is that the only consultation was with local authority representatives and bodies who could be relied upon, as the beneficiaries of the regulations, to be supportive.
This issue was raised in a question to Gavin Williamson, the Education Secretary, by Tulip Siddiq on 5 May 2020. Hansard records his reply as follows:
‘…we worked very closely with the ADCS—the Association of Directors of Children’s Services—on how we make sure we do everything we can to maintain the very best support for all children when they are in care. It and the sector have specifically asked us to make sure that some flexibilities are made available to them.’
Many of the things which were requested have been sought before. In his submissions to the All-Party Parliamentary Group for Children’s inquiry into children’s social care in 2016, Steve Crocker from Hampshire Children’s Services pointed out rising demand for services and a falling budget for his department. He argued that local authorities could not meet the duties placed upon them by the existing legislation with the available funding and proposed ‘de-regulation’ of some areas, including fostering and adoption panels, which he described as ‘a bureaucratic burden’, and the independent reviewing service. It can hardly have come as a surprise to Vicky Ford when she received support from local authorities for exactly the changes which we now find in the regulations.
There is no suggestion of any balancing of the local authorities’ requests with the interests and voices of the children. The regulations are for the protection of vulnerable children. We can see that there has been consultation with the regulated, who might be expected to support a lessening of those regulations. Where, though, is the consultation with those able to speak on behalf of the children who benefit from these regulations? We are fortunate to have a Children’s Commissioner in England who has shown herself to be active and vocal on behalf of children and their rights. Under section two of the Children Act 2004 (as amended) the Commissioner’s ‘primary function’ is ‘promoting and protecting the rights of children in England.’ The section goes on to say that this function includes promoting awareness of the views and interests of children and that this may be done in a number of ways, including advising the Secretary of State on the rights, views and interests of children. It is difficult to conceive how any consultation, however rapid or informal, about reducing the protections given to those who cannot protect themselves could be valid without seeking the views of the Children’s Commissioner. She was not consulted. She was ‘informed’.
The SLSC asked the DfE why the Children’s Commissioner had not been consulted and were told that:
‘The Department considers that the changes are minor in nature and do not constitute infringements of children’s rights.’
Short-term necessity or Trojan horse?
According to regulation 14, ‘these regulations cease to have effect on 25 September 2020’, which is also the date for the ending of the Coronavirus Act 2020. However, as with so much about these regulations, you cannot take anything at face value. At the end of the Department’s Explanatory Memorandum, we are told that if the public emergency lasts longer than this a further statutory instrument will be made to revoke the expiry provision. In other words, another secretive piece of regulation may follow to extend these changes for as long as Vicky Ford thinks fit.
Of equal, if not greater concern, is the suspicion that this experiment in deregulation may be used as a springboard to bring back the changes which Parliament rejected during the passage of the Children and Social Work Act 2017. Looking back to the Editor’s Blog I wrote about the Bill on 1 January 2017, I notice that those powers were being euphemistically referred to as powers to test different ways of working. There is a chilling similarity to where we find ourselves today. The House of Lords SLSC has taken this issue up with the Department for Education and at paragraph 38 of its report it says:
38.The EM also states that apart from monitoring the changes, the Department will be considering their longer-term impact and what future action may be required once the changes are no longer in force. We asked DfE whether any assessment of the impact would be published. The Department explained that it “intends, as required, to monitor the use of provisions within this Statutory Instrument. The form of this monitoring is to be determined. In doing so it will want to take account of any longer-term lessons for the operation of the children’s social care system.”
As I read it, that amounts to an admission that these concerns are well-founded and that if, after a mere six months, there has been no tragedy or massive scandal which can be directly attributed to these regulations, it will be held up as proof that the protections were never needed in the first place. This is no way to operate a system of child protection.
‘Low risk changes … minor in nature’?
At paragraph 3.4 of the Explanatory Memorandum, it is stated that:
‘These are low risk changes to ease administrative and procedural duties …’
The suggestion that they are ‘minor in nature’ comes from the Department’s response to the SLSC referred to above. We can now turn to look at just a few of these changes and consider whether they are as they have been described.
Both Article 39 and the Children’s Commissioner have written at length about the individual changes which cause them concern. I do not intend to repeat the things which they have said (although I am happy to adopt them) but rather I would wish to focus on whether the Government’s description of these changes can, within any normal usage of the English language, be regarded as accurate.
Regulation 5 of the 2020 Regulations makes changes to the Children (Private Arrangements for Fostering) Regulations 2005 which implement the local authority duties in Part IX of the Children Act 1989. Private fostering is where a child is being cared for by someone who does not have parental responsibility for the child and is not a close relative, unless the arrangement is for less than 28 days. It can arise in many situations, such as children sent to England for their education, children who have been trafficked to this country, asylum seekers or refugees, or troubled teenagers who have left home and moved to stay with another family. Section 67 of the Children Act makes it the duty of every local authority to satisfy themselves that the welfare of privately fostered children is being satisfactorily safeguarded and they have powers (under s69) to prohibit unsuitable people from privately fostering.
The 2005 regulations set out how local authorities are to discharge the duties which the Children Act imposes on them. Under regulation 3, anyone who is proposing to foster a child privately must notify their local authority and under regulation 4 the local authority was required, within 7 days of that notification, to do several things:
‘(a)visit the premises where it is proposed that the child will be cared for and accommodated;
(b)visit and speak to the proposed private foster carer and to all members of his household;
(c)visit and speak to the child, alone unless the officer considers it inappropriate;
(d)speak to and, if it is practicable to do so, visit every parent of or person with parental responsibility for the child; and
(e)establish such matters listed in Schedule 2 as appear to the officer to be relevant.’
Schedule 2 sets out the matters which are to be checked:
‘(a)that the intended duration of the arrangement is understood by and agreed between—
(i)the parents of the child or any other person with parental responsibility for the child; and
(ii)the proposed private foster carer;
(b)the wishes and feelings of the child about the proposed arrangement (considered in the light of his age and understanding);
(c)the suitability of the proposed accommodation;
(d)the capacity of the proposed private foster carer to look after the child;
(e)the suitability of other members of the proposed private foster carer’s household;
(f)that arrangements for contact between the child and his parents, any other person with parental responsibility for him, and other persons who are significant to him, have been agreed and understood and that those arrangements will be satisfactory for the child;
(g)that the parents of the child or any other person with parental responsibility for him and the proposed private foster carer have agreed financial arrangements for the care and maintenance of the child;
(h)that consideration has been given to, and necessary steps taken to make arrangements for, care of the child’s health;
(i)that consideration has been given to, and necessary steps taken to make arrangements for, the child’s education;
(j)how decisions about the care of the child will be taken; and
(k)whether the proposed private foster carer, the parents of the child, any other person with parental responsibility for the child, or any other person concerned with the child are being given such advice as seems to the authority to be needed.’
Once a private fostering arrangement is in place, the local authority must continue to monitor it and regulation 8 of the 2005 regulations said:
8.—(1) Each local authority must arrange for an officer of the authority to visit every child who is being fostered privately in their area—
(a)in the first year of the private fostering arrangement, at intervals of not more than six weeks; and
(b)in any second or subsequent year, at intervals of not more than 12 weeks.
All of this was clear and easy to follow. There was a statutory duty under the Children Act and the regulations set out the steps which local authorities had to take to discharge that duty. Those regulations are now amended so that the first visit is to be ‘within 7 days or as soon as reasonably practicable’ and in the second and subsequent years, monitoring visits need only be carried out ‘where reasonably practicable’. Which, in reality, suggests they are optional, or at best low priority.
Private fostering covers a huge spectrum of cases, from the family friend who kindly offers their home to a child so that they can benefit from an English education to those who are exploiting trafficked and abused children and teenagers. There is a potential for abuse in any fostering situation, but that potential is heightened where it is an unregulated arrangement without appropriate monitoring. Abuse thrives in darkness.
Children have been abused and even killed by foster carers, both local authority and private, although this is thankfully very rare. The death of Chelsey Essex in 2007 is one such case. In 2008, Kenneth Morton was jailed for 12 years for sexually abusing three girls placed in his care by Rotherham Council and in 2007, Eunice Spry was sentenced to 14 years imprisonment for her abuse of the children in her care.
Risk assessment involves two elements; the likelihood of the event happening and the seriousness of the consequences if it does. Although children being harmed by foster carers (of any kind) is quite exceptional, the consequences are so dire that we must protect against this. It can, quite literally, be a matter of life and death. Ensuring that children privately fostered are safe and have not (for example) been placed in the home of a convicted paedophile or ‘county lines’ drug dealer is not, by any stretch or even distortion of language, an administrative or procedural matter. Delaying or not carrying out the checks that would ensure a child is safe from abuse is not ‘minor in nature’.
Cash-strapped local authorities have been asking for these kinds of changes for several years. They should be very careful what they wish for. Perhaps they have realised, or will come to realise, the poisoned chalice that has been handed to them and, perhaps, this is why the regulations are currently unused. Their legal duties under Part IX Children Act 1989 remain in force. The only thing which has been removed is the local authority’s protection, in the event that something should go tragically wrong in a private foster placement, that they had followed all the relevant regulations and time limits. The local authority will, inevitably, take the blame and, just as surely, Ms Ford will wash her hands of any responsibility.
The Joint Committee on Statutory Instruments looked at these regulations on 20 May 2020. They were particularly concerned by some parts of regulation 4 which makes changes to the Adoption Agencies Regulations 2005. Before a prospective adopter can be approved (in principle) to adopt, there are a number of statutory checks which must be carried out. These included: obtaining police checks (reg 25); obtaining a written report from their GP about their health (reg 26 (b)); and obtaining information from their home local authority (reg 26 (e)). The intention was that pre-assessment approval could be given even if none of these had been received. Regulation 4(8) of the 2020 regulations inserts a new regulation 27(1A) into the 2005 regulations which, in fact, says that the approval can proceed without the police checks and medical report, but fails to mention the local authority information. Regulation 4(7) of the 2020 regulations makes the requirement for a medical report and local authority information subject to regulation 27(1A) but not the requirement for information about the prospective adopter from the police.
The resulting rules make no sense at all. They are the drafting equivalent of the Penrose Steps, around which the unfortunates trudge forever. without any possibility of reaching the top. The Joint Committee were quick to see this and asked ‘that the Department will neither operate the law, nor encourage anyone else to operate the law, in the form in which they wish they had made it, rather than in the form in which they did make it.’
The response from the DfE is quite staggering in its arrogance and distain for the rule of law. It is worth setting out in full.
14.The inclusion of the amendment to regulation 26(e) occurred late in the process at the request of the sector and so the failure to refer to it in regulation 27(1A) is an oversight. The intention behind the planned amendment was made clear to the sector at the time the amendments were being prepared and we can continue to explain to them that our intention had been to include a reference to 26(e) in the new regulation 27(1A). We can also liaise with Ofsted about this and would expect them to take a pragmatic approach to any adoption agency that proceeds on the basis of the policy intention.
15.As the amendments are due to expire on 25th September we do not consider that it is necessary to make an amendment to the Regulations at this stage to add reference to regulation 26(e) into new regulation 27(1A) but we will keep this under review alongside the Regulations themselves.
Essentially, the response is that the Government accepts that the written legislation it has forced into law is defective and incomprehensible. Those who follow it would probably be acting illegally. But they should get on with it anyway.
Are these ‘low risk’ and ‘minor changes’? They mean that someone could receive pre-assessment approval as a potential adopter with a history of violence and neglect to children in their care, or with serious on-going problems with substance abuse. Whilst the 2020 regulations add a provision prohibiting final approval as an adopter without the police reports and medical report, the defective drafting highlighted by the Joint Committee is carried forward and there is no requirement for local authority information. What are the risks? There is a risk that a lot of time any money will be spent on assessing potential adopters only for police or medical information to show that the candidate is utterly unsuitable and, had this been know at the appropriate time, they would never have moved on to the second part of the assessment. For children, there is a very real risk that because of sloppy, careless drafting someone may be able to slip through the net and adopt despite their own local authority having information which would show that a child would not be safe or well cared for by them.
I suggest that these changes are nothing to do with Coronavirus. They are a reflection of the government’s on-going obsession with adoption, regardless of whether it is the solution which best meets the needs of the child. An early permanence placement can now be made with a foster carer who is also an approved adopter without this being approved by a nominated officer and without a placement plan being prepared. From an administration fixated on adoption, you have to suspect that this is an attempt to railroad a reluctant court into making a placement order by presenting it with a fait accompli of facts on the ground. This is not trivial. It may change the course of a child’s life.
Regulation 9 of the 2020 Regulations makes changes to the rules regarding the operation of independent fostering agencies. Because of the risks to children, such organisations are highly regulated and both the operators and registered managers must be of appropriate character, physical and mental health to carry out their responsibilities. Changes are, however, made which do not seem to be related to Covid-19.
By regulation 9 of the Fostering Services (England) Regulations 2011, where the owner or manager is convicted of any criminal offence, anywhere in the world, they must inform Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (the head of Ofsted) ‘without delay’. The 2020 regulations reduce this to ‘as soon as is reasonably practicable’. Now, there is scope for much lawyerly debate as to how much difference the revised wording actually makes, but that is not the point. Since the notification is to be in writing, nothing in the ‘lockdown’ regulations make it more difficult to comply with the original rule and so to introduce such a change in a covert way, with no Parliamentary scrutiny is simply bizarre. Secondly, why does the Minister believe that notifying Ofsted that the manager of a fostering agency has been convicted of possessing indecent images of children is not urgent and ‘minor in nature’?
There are also changes made to the information required when someone is being assessed as to their suitability to be a foster carer. This is a two-stage process and within stage one details would be obtained about the applicant’s health. Under schedule 3 paragraph 2 to the Fostering Services Regulations, this had to be supported by a medical report. This requirement has been dispensed with, leaving open the possibility that someone may be approved to foster, notwithstanding an undisclosed history of mental illness or substance misuse. A minor, procedural matter, apparently.
There are extensive changes to the Care Planning, Placement and Case Review (England) Regulations 2010. They are not minor, procedural matters with no possible impact on child welfare. They are all capable of entirely changing the direction of a child’s life without proper thought and planning. The welfare of the child appears entirely absent from the regulations.
There are changes to the rules about placements outside the local authority area which would see children placed with people with whom they have no connection, potentially vast distances from home and without any account being taken of their wishes in the matter.
The rules regarding the placement of children in local authority care with a parent are substantially diluted. Hitherto, it was prohibited to place a child in care with a parent unless there was a placement plan (regulation 18). Emergency placements with a parent were allowed under regulation 19 but only for 10 working days, by which time the assessments and planning should have been completed. Since 24 April 2020, placement plans for a placement with a parent are no longer required and the assessments should be completed ‘as soon as reasonably practicable’. When this is linked to the requirement for looked after reviews to take place every six months being relaxed, it is easy to see all the ingredients assembled for a child being returned to the household where they were previously harmed in an unplanned way and for matters to then drift without adequate monitoring or review. The potential harm to the child is incalculable.
These regulations were drafted by people with no apparent understanding of the operation of the child protection and child care system. They were rushed into law with a blatant disregard for democratic conventions under the cover of urgent need, which has been proved to be false. They attempt to bring back provisions throwing away vital protections to the safety and lives of children which have been clearly and decisively rejected by Parliament and to force them into law by ministerial diktat.
The suggestion that they deal with minor, procedural matters does not stand up to scrutiny. They touch on the protection of the physical, emotional and mental health and safety of children. They are ill-thought-out and, to date, the local authorities for whom they were drafted seem to have shunned them.
More than anything else, they are a warning of just how precariously we hold our rights and legal protections and how dangerous it is to take them for granted.
Rodney Noon, Editor Seen and Heard, Nagalro publication ISSN 1744-1072