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Adoption & Children (Coronavirus) Regulations 2020 – a step too far

Madeleine Whelan considers the implications of the Adoption and Children (Coronavirus) (Amendment) Regulations 2020

Madeleine Whelan, barrister, Fourteen

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 quietly came into force on 24.04.2020 following little scrutiny from Parliament. They were made on 21.04.2020, laid before Parliament on the Thursday and hurriedly passed on Friday; there was not the usual 21 day scrutiny period.

This should be a concern to all family lawyers and children's' rights advocates. In the explanatory note, it is said that these amendments are passed "in order to assist the children's care sector during the coronavirus pandemic and cease to have effect on 25th September 2020".

Some of the key changes introduced by these measures include:

• The statutory LA visits to looked after children under the Care Planning, Placement and Case Review Regulations 2010 no longer need to take place every 6 weeks, instead can be "at regular intervals" and can take place via telephone or video link

• The LA no longer need to review the child's case within 20 days, but simply "as soon as is reasonably practicable"

• Reg 24 temporary fostering provisions now apply to anyone, rather than a "connected person" and a placement plan is no longer required before placement with the carer

• Reviews of a child's care no longer have to take place every 6 months

• No longer a statutory requirement for residential children's homes to "promote and make proper provision for the health and welfare of residents" and complaints procedure has been relaxed

• Unannounced visits to and reports on the standard of residential children's homes by the registered provider no longer need to take place once a month

• Twice yearly Ofsted inspections are no longer required

• Adoption panels no longer need to be properly constituted or referred to

• Fostering panels are optional

• Emergency placements with local authority foster parents which previously could only last 6 working days can now last up to 24 weeks

• 'Short break' placements for children can last up to 75 days (previously 17 days)

• A child can be deprived of their liberty in a children's home if infected with coronavirus

Clearly these amendments make extremely concerning reading in relation to the safeguards present for children in care, who are already an overwhelming vulnerable group. The relaxing of supervision via panels, visits from social workers and inspections by registered bodies combined mean a long period with very little third party scrutiny over the standard of care being provided to looked after children in the UK. The politically minded may remember that in 2016 the government attempted to give local authority the chance to "opt out" of their obligations under social care regulations, in a clear attempt to undermine those safeguards. Since then, they have couched these relaxations as a narrative of "freedom" for local government to manage looked after children how they see fit in their area, when it is patently an attempt to weaken the rights of children in the looked after sector and avoid strict obligations on local authorities.

Turning first to adoption, undoubtedly one of the most controversial practices of the social care system anyway and a clear breach of Article 8 unless in accordance with law as is necessary in a democratic society, the previous safeguards enshrined in law ensured that each potential adoption decision and prospective family was scrutinised by  an independent panel. This is no longer required under the coronavirus amendments – it is unclear logically how the pandemic affects the ability of a panel to make independent decisions on behalf of a child. Clearly, panels and meetings can take place and be properly constituted even under a lockdown. It is concerning that this is a freedom the government has previously attempted to remove and has taken the first opportunity to erode in the name of public health. The justification for these amendments that they "assist the children's social care sector" is not expanded upon within the explanatory note and without the 21 day scrutiny it is very hard to see how relaxing the requirements of proper review of adoptions is assisting anyone, least of all the children concerned.

For practitioners, the most immediately relevant passages are undoubtedly those relating to Reg 24 fostering placements. Previously, a child could be placed with a 'connected person' who was not a local authority approved foster carer and the local authority had the power to approve the placement for up to 16 weeks. The Coronavirus Amendments remove the requirement for that person to be 'connected' to the child, which, again is difficult to justify on public health grounds. Relaxing the connection the potential carer must have with the child does not seem to "assist" the local authorities in the exercise of their duties, it simply removes a basic protection for the child that they have an existing relationship with the carer before being placed. It could be argued that these changes make it easier to source carers for children in the pandemic, but this can easily be countered by the fact that placing children with people to whom they are not 'connected' undermines the stability of that placement and undoubtedly creates more work for the social care team in the long-term. This, combined with the fact that the local authority do not need to have a placement plan prepared before placement, meaning there will be less analysis of the stability and future of placements for children.

In relation to the deprivation of liberty provisions, the new amendments make a fundamental change to previously understood laws on the deprivation of liberty of children. Prior to this, the deprivation of liberty of children in children's homes had to be sanctioned by a court order in accordance with the Children's Homes Regulations 2015. However, there is a significant amendment introduced which now allows for the restraint of deprivation of liberty of children "in accordance with an exercise of powers under Schedule 21 to the Coronavirus Act 2020". That Schedule relates to the powers conferred on public health officials in relation to "potentially infectious persons". Essentially, children may be restrained and/or detained within their children's home if they are infected with coronavirus. Further, where children are detained on the date of expiry (25th September 2020), they shall continue to be so as if the coronavirus regulations remained in force. The provisions are silent on when this should be lifted or reviewed.

There are a huge number of smaller but significant amendments brought into force by these provisions. It is important for all practitioners to be aware of the reduced obligations on local authorities during this crisis and the potential challenges this may present as proceedings are ongoing in the pandemic. Fortunately, little has been altered in terms of the obligation to promote and provide contact for families, which is something the local authority must continue to promote and offer in some form. However, the recourse to third party review and independent analysis of the conditions for looked after children throughout this pandemic have been sorely affected and practitioners on all sides must be alive to this to ensure that looked after children do not fall through the cracks at such a dangerous time.