“the problems within the children’s social care sector are long-standing and extremely well documented, not least in judgments from the Family Division of the High Court.”
“1. Agreement to temporarily amend certain regulations related to children’s social care to help local authorities, services and providers manage the Covid-19 outbreak.” 9. This was developed in the following paragraphs under the heading “Summary”: “2. Ensuring that vulnerable children are properly safeguarded and have their welfare promoted remains a top priority. At the same time, we recognise that the challenging context means that local authorities and partners will struggle to meet the full range of statutory duties relating to child protection, safeguarding and care at present. Therefore, we are proposing to lay regulations before Parliament that will make temporary changes to provide additional flexibility in meeting statutory obligations whilst maintaining appropriate safeguards. 3. Changes are being made to 10 sets of regulations to ensure children’s social care providers and local authorities have sufficient flexibility to respond to Covid-19 while still maintaining safe and effective care. Most changes will ease administrative burdens, allow visits and contact to take place remotely and relax strict timescales where possible. These are low risk changes and will provide more flexibility to focus on core safeguarding responsibilities. These amendments will be kept under review and in place until the Coronavirus Act renewal date on 25 September. 4. We have engaged with stakeholders on the proposals in confidence, including Ofsted, Association of Directors of Children’s Services, the Local Government Association, Principal Social Workers and Practice Leaders. Issues raised by stakeholders which do not require legislative change will be addressed through accompanying operational guidance.”
“8. While we understand local authorities and their local partners will want to continue to meet their existing statutory duties as far as they can, there will be times in the current circumstances when this may not be possible, so the proposed amendments provide proportionate flexibility to allow for the pressures of Covid19. We want local authorities and local safeguarding partners to feel empowered to support families and protect children to the best of their abilities given the challenging context and have set out a series of principles, broadly endorsed by the sector, they should follow in making decisions: • Child-centred - promoting children’s best interests • Risk-based - prioritising support and resources for children at greatest risk • Family focused - harnessing the strengths in families and their communities • Evidence informed - ensuring decisions are proportionate and justified • Collaborative - working in partnership with parents and other professionals • Transparent - providing clarity maintaining professional curiosity about a child’s well-being.” • Child-centred - promoting children’s best interests • Risk-based - prioritising support and resources for children at greatest risk • Family focused - harnessing the strengths in families and their communities • Evidence informed - ensuring decisions are proportionate and justified • Collaborative - working in partnership with parents and other professionals • Transparent - providing clarity maintaining professional curiosity about a child’s well-being.”
“Of course for more vulnerable children, who might be at greater risk, it might be that a visit that is done over a video-call isn’t enough – that would be for the LA to risk assess on an individual basis. In some instances, this will also be protecting children from each other, where this will help to minimise the chances of the virus spreading. This may involve depriving some children in residential care of their liberty, on the basis that they have, or are likely to have, coronavirus. We believe that these new temporary powers can make an important contribution to the rights under this article by helping to minimise the spread of coronavirus amongst children in residential care.”
“Good evening. We want to give you advance notice in confidence that the Department is intending to make some minor changes to children’s social care secondary legislation next week in light of Covid-19. Our intention is to continue to prioritise the needs of children whilst relaxing some minor burdens in order that local authorities can continue to deliver children’s services without being unnecessarily hindered by process in these extraordinary circumstances. Changes are being made to 10 sets of regulations which are outline[d] in the document attached. Most changes are small procedural changes to ease administrative burdens, allow visits and contact to take place remotely and relax strict timescales where possible. However, given a large proportion of foster carers are vulnerable to coronavirus, we are also making amendments to allow individuals who are not connected persons to the child, to be approved as temporary foster carers and extend the timescales for placements in an emergency. We consider most of these changes to be low risk and will support increased demand for services and staff and carer shortages who are ill with coronavirus. These amendments will be kept under continuous review and in place until the Coronavirus Act renewal date on 25 September. We are not making any other change to statutory duties set out in legislation. We will be updating the guidance for local authorities and children’s social care that you will be aware of … to reflect these changes. The guidance will emphasise that we want LAs to meet current timescales as far as possible, but we have provided some flexibility should they require it. We have shared our proposals for these legislative changes with Ofsted, the Association of Directors of Children’s Services, the Local Government Association, Principal Social Workers and Practice Leaders. We have undertaken a Public Sector Equality Duty and a Children’s Right[s] Impact Assessment, and we do not consider children with particular protected characteristics will be negatively impacted nor will it have a negative impact on children’s rights.”
“2.1 The instrument temporarily amends 10 sets of regulations relating to children’s social care to support services manage the coronavirus (Covid-19) outbreak …. 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. The changes will support services to try and manage the increased pressure on children’s social care and staff and carer shortages who are ill with coronavirus …. … 3.1 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. … 3.3 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. 3.4 The instrument will make temporary changes to provide additional flexibility for local authorities, providers and services to meet statutory duties whilst maintaining appropriate safeguards. These are low risk changes to ease administrative and procedural duties and are required to ensure stability of children’s social care during the outbreak. … 7.1 Ensuring that vulnerable children are properly safeguarded and have their welfare promoted remains a top priority for Government. At the same time, the challenging context of the outbreak means that local authorities and partners may struggle to meet the full range of statutory duties relating to child protection, safeguarding and care at present due to administrative and procedural requirements set out in legislation. 7.2 The Department has consulted informally with a variety of local authority stakeholders, including the representative body The Association of Directors of Children’s Services, and with Ofsted, and have informed the Children’s Commissioner. These consultations have helped identify which changes would be most helpful to local authorities during the outbreak …. … 10.1 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. Consultees provided suggestions for suitable amendments and have subsequently been provided with further detail of the changes that are being made and have provided broad support. There has been no public consultation due to the urgency of the regulatory amendments.”
“These regulations make significant temporary changes to the protections given in law to some of the most vulnerable children in the country – those living in care. I appreciate that Local Authority children’s services are likely to be experiencing challenging working conditions during the pandemic, and there are many inspiring examples of frontline workers going above and beyond the call of duty to keep children safe. Nevertheless, I do not believe that the changes made in these regulations are necessary – except perhaps for some clarifications (in guidance) about contact with children taking place remotely during the lockdown. Children in care are already vulnerable, and this crisis is placing additional strain on them – as most are not in school, less able to have direct contact with family and other trusted professionals, and facing the challenges of lockdown and anxiety about illness – all on top of the trauma they have already experienced. If anything, I would expect to see increased protections to ensure their needs are met during this period. These changes have been made with minimal consultation, and without complying with the usual 21-day rule of being published three weeks before coming into force. The explanation for this is that ‘waiting 21 days will put extraordinary pressures 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.’ However, the reports I have been receiving from local authorities are that staffing for social care is holding up well. It therefore appears that bringing these regulatory changes to ease excessive strain on a depleted workforce, and to do so without the opportunity for public scrutiny, is not justified.”
“A duty to consult may arise by statute or at common law. Where a statute imposes a duty to consult, the statute tends to define precisely the subject matter of the consultation and the group(s) to be consulted. The common law recognises a duty to consult but only in certain circumstances.” 32. At paragraph 98(2), the court summarised the circumstances in which a duty to consult may arise in these terms: “There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional circumstances, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to consult ….”
“Before making regulations under this section, except regulations which amend other regulations made under this section and do not, in the opinion of the appropriate Minister, effect any substantial change in the provision made by those regulations, the appropriate Minister shall consult any persons he considers appropriate.” 34. The preamble to the Amendment Regulations included the following statement: “In accordance withsection 22(9) of the Care Standards Act 2000 the Secretary of State has consulted such persons as were considered appropriate.”
“A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”
“It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council ex p Gunning(1985) 84 LGR 168 .” 39. At paragraph 112, however, Lord Woolf added this qualification: “It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”
“A public authority's duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, ex parteBaker[1995] 1 All ER 73 . But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.”
“73. In the present case, the Claimant has failed to establish that there was a past practice of consultation giving rise to a legitimate expectation that it would have been consulted in the present context. Tellingly, there was no consultation before the Approval of 2018. 74. Furthermore, and in any event, even if there had in the past been a sufficient practice of consultation to generate a legitimate expectation, that would clearly have been capable of being overridden by the need to act swiftly in the context of the current emergency.”
“We unhesitatingly characterise that as a significant change of policy and we do not consider that the Secretary of State, if he had applied [his] mind to it, could reasonably have seen it in a different way. For these reasons we conclude that, so far as consultation with the CC is concerned … the Wednesbury challenge succeeds in substance ….”
“The potential impact of allowing a child to be placed with a stranger who is not a family member hardly needs stating. Further, this is a situation where there is no nominated officer oversight. I therefore fully accept that the protection that has been removed is an important one.” 50. Similarly, with regard to the introduction of flexibility into the timescales for visits to looked-after children, the judge observed (at paragraph 36): “Again, the importance of regular visits within a fixed time scale cannot be overstated. This is true both for visits to foster care placements, which may serve to alert the local authority to risks posed by foster carers, but also visits to the very large number of children in unregulated settings where there are no Ofsted inspection[s] and thus are heavily reliant on social worker visits. This is a situation which has concerned many of those in the children’s care sector including Family Division judges in recent years, see Cobb J in Re S (Child incare: Unregulated Placement)[2020] EWHC 1012 Fam. These children are often being placed away from family, school and friends who could provide some support and informal oversight, and are intensely vulnerable, including to child sexual exploitation. Regular visits by their social workers are one of the ways, if not the critical way, of ensuring they are properly protected.”
“74. There are two overarching points in this case. The first is that the Defendant was facing an unprecedented situation in March and April 2020 and the decisions that were made have to be considered in that context. The advice being given by SAGE [the Scientific Advisory Group for Emergencies] in February 2020 was of a realistic worst-case scenario of social worker absences through sickness from Covid-19 of 35% as a weekly average and rising to a peak of 41%, and an excess death toll of 828,000. Happily, nothing approaching those figures occurred and the strains on the sector although great have not been of that scale. However, that is what the Defendant had to be planning for and the fairness of the consultation has to be judged in the light of the advice the Defendant was receiving at the time. 75. Further, these impacts were within a sector which is already facing enormous challenges with some local authorities already operating at staffing levels well below optimum. A large proportion of LACs [looked-after children] are living with foster carers and foster carers are, as a group, likely to be older and thus more vulnerable to Covid-19. These were important factors in the Defendant considering it to be critical to introduce more flexibility into the system in the light of the crisis. 76. The second overarching matter is that the Claimant is correct to reject the suggestion that the safeguards that have been relaxed in the Regulations were either minor or should be characterised as mere "administrative burdens" that could be set aside with relatively little risk. In each of the seven specific regulations that the Claimant refers to, the protections in the original Regulations are important ones. I fully accept the Claimant's submission that the children subject to these Regulations are particularly vulnerable. Many local authorities in the field do not manage to provide a good enough level of service and this leaves already very vulnerable children highly exposed to risk. When things do go wrong it can be catastrophic for the children involved. In those circumstances, the importance of having regular visits; senior officer oversight by nominated officers; some independence through independent reviewing officers and independent adoption panels cannot be overstated. These are not administrative burdens, or minor matters, they are fundamental parts of a scheme of protecting vulnerable children. Each has been introduced over time precisely because of the risks that LACs face and the need for safeguards to be in place. 77. Having accepted this, I do not need to go back through each of the Regulations to highlight the importance of the particular safeguard because I view each of them to be very important, albeit in different ways. 78. However, in judging the lawfulness of the consultation I start with the comments of Lord Reed in Moseley at [36] that the duty to consult may "vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is carried out". The statutory duty here does not apply to the majority of the impugned regulations but, in any event, is only that the Defendant shall consult such persons as he considers "appropriate". There is a practice of consulting with children's rights interest groups, including the Children's Commissioner and bodies such as the Claimant, and with children directly, on changes such as those introduced by the Regulations. However, I accept that any legitimate expectation, certainly to the Claimant, goes no further than the statutory duty. Therefore, there is a duty on the Defendant to consult appropriate persons in the sector, subject to a rationality challenge. The scope of that duty must depend on the circumstances at the time. 79. The Defendant's position is that he was concerned to discover through the consultation what urgent changes were needed by providers to make sure that they could continue to deliver vital services to protect children. This was in the face of the pandemic and in particular the very high staff shortages, including lack of foster carers, that were being predicted. Therefore, the Defendant was entirely focused on asking that question of the people who were providing the service. I accept that there is inevitably another side to that question which is what is the impact on children of introducing flexibility. In normal circumstances there can be no possible doubt that the Defendant would have had to ensure that he was consulting a range of people in order to ensure that he was getting a full answer to the question posed. In particular I have no doubt that in normal circumstances he would have been under a duty to consult the Children's Commissioner whose very statutory purpose was to put forward the views of children and promote their welfare. 80. Although the Children's Commissioner was not a party to the action and did not intervene, I accept that the Claimant can raise a failure to consult the Commissioner as an error of law. That argument succeeded in R (C) v Secretaryof State for Justice[2008] EWHC 171 where the Claimant successfully raised an argument that the Children's Commissioner should have been consulted, and was upheld on that point in the Court of Appeal,[2008] EWHC Civ 882 , with the Court of Appeal finding the relevant regulation should have been quashed. 81. However, there are two interrelated reasons why I do not consider the Defendant erred in law here in the consultation. Firstly, these were not normal times and the sector was facing an unprecedented crisis that would impact on the welfare of LACs. The Defendant had to make very quick decisions to protect those children in as effective a way as possible. To do that it was reasonable to focus on the providers of services to explain what they thought was needed in the very short term. 82. Secondly, those providers were themselves considering the welfare of the children they were caring for. I entirely accept the Claimant's case as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children. There will in some cases be a conflict between the wishes and interests of providers and those of LACs. However, that is not to say that the providers who were consulted were ignoring the need to protect the children and continue to seek to protect their welfare. This is shown quite clearly by the ADCS using a RAG [red – amber – green] rating of the Regulations in order to understand which were the most important to safeguard children. This is not a situation where the interests of the children were simply not taken into consideration through the consultation. 83. I agree with the Claimant that the Children's Commissioner could have been consulted. Although matters were urgent there was time for many providers and not just local authorities to be consulted. There is no evidence that there was a positive decision not to consult the Commissioner but Ms Ward could give no very clear explanation as to why the Children's Commissioner was not consulted save that the focus was on those providing services. In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted. However, given the very particular focus of what the Defendant had to decide in amending the 2020 Regulations, the extreme urgency and the scale of the issues facing the Defendant in March-April 2020, I do not think there was an error of law in not consulting either the Commissioner or the Claimant. Although the comment in R(Christian Concern) v Secretary of State for Health[2020] EWHC 1546 about the circumstances of the pandemic potentially overriding any legitimate expectation were obiter, it is in my view apposite. A legitimate expectation that arose in normal circumstances would not give a right to consultation in the circumstances of dealing with the pandemic in Spring 2020. In terms of conducting a fair consultation I do not consider that something had gone clearly and radically wrong in the consultation.”
“to monitor the progress of achieving the outcomes set out in the care plan and to make decisions to amend the plan as necessary in light of changed information and circumstances. Reviews take place in order to ensure that the child’s welfare continues to be safeguarded and promoted in the most effective way throughout the period that s/he is looked after.”
“required as we are by the pandemic to consider amending regulations relating to looked-after children, should we make changes in the terms which we here propose?”