27th Apr 2020

A new statutory instrument came into force on 24th April 2020 as a result of the government deeming that it was necessary during the current pandemic to vary current legislation (albeit temporarily until 25th September 2020). Evonnie Chan looks at the question of whether these amendments have properly balanced the need to ensure that children are still adequately protected whilst also ensuring that local authorities are able to carry out their duties safely.

As lawyers working to ensure that children’s fundamental rights are protected the question we need to ask is: does this legislation actually address the challenges of the current situation in a way which preserves proper procedures which work to safeguard the most vulnerable children?

This blog is only intended to be a short summary of the amendments. It does not cover all aspects of the amendments and I would suggest reading the instrument itself- it has taken me hours to digest the contents so I thought I would prepare something which reflects my personal take on it for you to consider before you launch into reading it for yourselves!

I have picked out a few amendments that particularly interested me as a lawyer focusing primarily on public law work:

1. Adoption Agencies Regulations 2005 (amended under Part 3 of the 2020 Regulations)

Why did we have a statutory requirement for adoption panels? Logic would dictate that adoption, being a significant decision to be made by a public authority, should be rigorously scrutinised. If, therefore, a decision is to be made as to whether a child is to be adopted and/ or whether prospective adopters should be approved, this should be taken very seriously. You would think so…

a) Regulation 36
Under the old law at Regulation 36(1), “Where an adoption agency is authorised to place a child for adoption but the child is not for the time being placed for adoption the agency must carry out a review of the child’s case—
(a) not more than 3 months after the date on which the agency first has authority to place; and
(b) thereafter not more than 6 months after the date of the previous review (“6 months review”),
until the child is placed for adoption.”

Now, “(A1) Subject to paragraph (B1) an adoption agency does not have to carry out a review required by this regulation where the adoption agency decide that it is not reasonably practicable to carry out the review of the child’s case.

Of course, there is the caveat at (B1)- “Paragraph (A1) does not apply where the adoption agency is satisfied that a review is necessary to safeguard and promote the welfare of the child.”.

So what does this mean? A local authority (it usually is a local authority although technically it is any adoption agency) does not have to review a child’s circumstances at set times if it is not reasonably practicable. Why would it not be reasonably practicable? Due to low staffing levels/ having to prioritise urgent referrals? COVID 19 may be having a significant impact upon the ability of local authorities to carry out its duties but surely the requirement to review a child’s circumstances is an essential requirement?

The cynic in me would suggest that local authorities may use this amendment to stop reviewing cases altogether. The reality is we have all come across cases whereby children have been made subject to placement orders but have not been adopted for a significant period of time. The requirement for the review is therefore to protect these children and ensure that they are not left to drift. Certainty is key and if there is no one to ensure that the plan is being fulfilled or that alternatives are put in place swiftly, what is the net result? The child is left languishing.

b) Regulation 4
More significantly, the amendments now say that the local authority may constitute adoption panel(s). It does not have to do so. The local authority has the discretion as to whether to require a case to be put before an adoption panel.

I am not sure what this amendment is supposed to achieve. Whether a child should be adopted is a very significant decision. If local authorities are no longer mandated to constitute adoption panels, will they do so voluntarily? It seems unlikely that this amendment been put into place to take into account the difficulties of convening panels amidst a pandemic.

Given that lawyers (who are not always known for their advanced technology skills) and the courts have managed within a very short period to get up to speed with technology and remote working, could an adoption panel not convene remotely too? To do away with such panels, in my view, is to accept that their purpose was defunct and that is simply not the case. They serve a very important purpose and offer a final check to ensure that only those children who have no other alternative should be adopted. I cannot see how this amendment serves to protect the most vulnerable children in our society.

What is the recourse if a local authority decides not to put a case before an adoption panel given that it is not mandatory? As lawyers we must be alert to this as an issue and raise it as a real concern as to whether a placement order can be made and whether a local authority has applied proper checks and balances when taking account of the welfare of a child throughout its life.

c) Regulation 28
Ending on a positive, there is no longer a 6 month time limit in which prospective adopters must notify the local authority of their wish to continue with the assessment process. This is a welcome amendment in the current situation. Clearly, the expectation is that any such decisions are likely to be put on hold. Who knows when we will be out of this situation. It could be months, it may be well into next year! To allow prospective adopters an indefinite amount of time to proceed with their application means that there is no need to rush into a decision. This therefore relates to point b) above. If prospective adopters are being given some more leeway, we should be finding means to make it easier to convene adoption panels, not making it easier for local authorities to ignore its duties.


2. Children (Private Arrangements for Fostering) Regulations 2005 (amended under Part 4 of the 2020 Regulations)

1. Local authorities no longer have to investigate private fostering arrangements within 7 working days (as previously required by regulations 4(1) and 7(1)). They need only do so as soon as is reasonably practicable. Again, the obligation to meet a time limit has been removed. What will that mean in practice do we think? Again the cynic in me would suggest that where there is no mandatory time limit, it will be easy for the local authority to ignore its duty to ensure that vulnerable children are being kept safe. After all, the obligation was put in place to ensure that a social worker visited a child who had, for some reason, moved to the care of another person (who was not a family member/ parent). Without such, the likelihood is that there may be very many children in our society who slip through the net and will not be adequately safeguarded.

For those who consider that there is still an obligation but that “as soon as is reasonably practicable” simply gives the overstretched local authority some extra time, I would simply say this: I have had countless hearings whereby a local authority has been ordered by the court to meet a specific deadline. There have been numerous times when such deadlines have been ignored. What therefore is the incentive for a local authority to comply with such a loose timescale as “as soon as is reasonably practicable”? No doubt numerous reasons will be proffered as to why it took months for a social worker to check that a child was safe.

This is by no means intended to be a criticism of social workers who are front line workers and for whom I have the utmost respect. The reality is that many are guilt-ridden for having too little time to see those families that they need to. When I say “need”- I mean obliged by statute. If there is no obligation therefore, the result is that those cases will be left to another day…when there isn’t an emergency to tend to. You know as well as I do, that day may never come.

In the same vein, the local authority is now only required by Regulation 8 to review private fostering arrangements every 6 weeks/12 weeks “where reasonably practicable”, thus diluting the requirement. I need not repeat what has been said above.


3. Care Planning, Placement and Case Review (England) Regulations 2010 (amended under Part 7 of the 2020 Regulations)

This section I found most interesting. I am often very passionate about connected persons’ assessments in proceedings and have always thought it was unnecessary to define a “connected person”. The fact is that children have many different relationships with relatives, friends of parents, parents of friends etc. As long as there is someone who wishes to care for a child, no matter how they are “connected” surely there should be an obligation to assess them? That definition, previously found at Regulation 24(3) has now been removed, presumably because those in charge realised that none was required, for the reasons I have just given.

Where a person wished to care for a child, the obligation under Regulation 9 used to require that a placement plan would need to be prepared within 5 working days of the placement starting. That requirement has now been amended to “as soon as reasonably practicable after”. This was an additional safeguard to ensure the placement met the child’s needs but could also be a time consuming exercise for social workers who may have other more urgent issues to deal with.

This does not mean that children are placed in placements that are unsuitable. The obligation remains on the local authority to ensure that the child will be cared for appropriately- anyone who is to care for a child must be assessed taking into account all the matters under schedule 2. If the local authority considers it necessary to approve the carer as a temporary foster carer under regulation 24, it must then go on to consider schedule 4. This should, by no means, be a tick box exercise. Given that the duty for proper assessment to be undertaken remains, this adds a level of reassurance that the child should be adequately protected. The point that does need to be considered, however is whether, at a time when children are being seen by less professionals rather than more, regulations should be even more stringent rather than less.

Furthermore, a person may now be approved under regulation 24 for a period of 24 weeks and not just 16. This is a long overdue amendment. Even in normal times, where care proceedings rarely take less than 26 weeks, it never made sense to limit the temporary approval to 16 weeks. Very often it resulted in a crisis midway through proceedings where temporary approval was required in order to avoid the placement becoming ‘illegal’ With the current health crisis, it seems likely that many sets of proceedings will go on significantly beyond that 26 week deadline . In many cases, even if the care given is not to the standard expected, unless there is a real emergency, where a child who has been living with X for many weeks or months it is unlikely to be in their interests to have further moves prior to final decisions being made.

Where required there are means to ensure that a child is safeguarded. Urgent hearings can still be requested where a child is at risk of significant harm, even if he is living with someone who was temporarily approved as a foster carer. We must remember that the purpose of regulation 24 is to provide a temporary home to protect those children who are vulnerable. Many of them don’t wish to be placed into “foster care” with strangers, they want familiarity and whilst the placement needs to be safe, it does not need to be perfect. The compromise reached by this amendment therefore ensures that they can be placed with carers who are known to them and who have been sufficiently assessed as capable of protecting them for as long as is needed.

Although it is less frequently relied upon, regulation 23 has also been amended so that where it is necessary to place a child in an emergency, the local authority may place him with any local authority foster parent who has been approved even if the terms of their approval are not consistent with that placement, for 24 weeks and not 6 working days. In my view, this may make logical sense for the same reasons set out above – if a foster carer is already approved, it is likely that they are quite capable of safeguarding a child. It may be that they are only approved to care for a certain age of child but should the situation require it, they should be able to care for another child if that is the only safe option for the child at the time.

The risk is that this relaxation leads to children being placed in unsuitable placements without the appropriate rigour being applied to whether the placement can actually meets the child’s needs. As always there is a fine balancing exercise to be undertaken which is not set out or alluded to in these amendments.

Under the amended regulation 28, any visits may now be conducted by telephone, video-link or other electronic means. While this may be a necessary amendment given current government guidance and the need to ensure the health of all involved, it is my view that this relaxes duties on local authorities too much and that some, if not many of the visits required by the regulations will surely need to be carried out face to face.

The regulations apply not only to children placed in foster care but also children placed with parents, both on an interim and long term basis. Many of those placed with parents on an interim basis will be considered at risk, hence the requirement for the interim order. This is compounded by the fact that although “vulnerable” children are still permitted to attend school, the current data suggests that only 5% of them are attending. Therefore there is little professional contact with those children who are considered most at risk. I sympathise with social workers and they must worry about the impact of such essential visits will have on their own health and that of their immediate families. I do however wonder whether a social worker can carry out his/ her duties properly without undertaking face to face visits. Parents can be deceptive. The very fact that a social worker has been allocated to a child means there are risks.

There is of course a balance to be struck between putting professionals at risk and safeguarding children and in my view that balance comes down in favour of requiring face to face visits for those children most at risk of harm. Social workers, much like NHS workers, are key workers who are unfortunately required to put themselves in situations involving risk at the present time and they must be much admired for this. Where remote checks can be undertaken without compromising the safety of the child it may, in some cases be appropriate to do so.

The Fostering Services (England) Regulations 2011 have been amended in much the same way as the Adoption Agencies Regulations and I think you will be able to guess what my views are about those are too…

To sum up, I am not sure that all the amendments have been put into place simply due to the current pandemic and therefore the title is misleading. We are living through some strange times. There is conflicting advice. We don’t know when this will all end. Fundamentally however, being a family lawyer means trying to find the best way to protect children. I am not so sure that all the changes have that principle in mind.

It seems that the legislation may have been put into place to make life more convenient for some. What would have been helpful is if there had been acknowledgement that these times inevitably mean that children who were at significant risk before COVID 19 are now even more so now. How are we going to ensure that they are seen and heard? What legislation can we put in place to make sure that they are protected from harm? Anyone have any ideas?

Evonnie Chan

Evonnie Chan is a member of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.