COVID-19 – Child Protection regulations diluted?

Andrew Perrigo Partner Morecrofts Solicitors

The law of child protection has always been about evaluation of risk. Of course, everyone looks at risk differently and from their own point of view. In the family justice system families often feel they know best and that they can provide the best care for a child. A local authority may take a different view and want the child placed in foster care.

A child’s removal from a family is a harsh step and should only be taken by a court if the child’s safety requires it. It is a step the court do not take lightly.

If the court sanctions the removal of a child into local authority foster care the purpose of that decision is to keep the child safe. A child in foster care is known as ‘Looked After’ child and the court know there are a lot of duties and responsibilities placed on a local authority for looked after children in order to keep them safe.

On Thursday the government issued The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 which came into force speedily the following day. There appears to have been little discussion with those who might have a vested interest in such significant changes to child protection brought about by these regulations. The regulations will remain in force at least until September.

The Regulations make important alterations to wide range of responsibilities of the local authority to children.

Key changes

One of the key changes is to the social work visits to a child. Under the old regulations they had to take place within one week of a placement starting and then every 6 weeks until a long-term placement was identified. Under the new regulations visits will be ‘as soon as is reasonably practical’ and such visits can be by telephone, video link or any other electronic means.

Within the old regulations formal reviews of the child’s arrangements should take place within three months of the first review and thereafter at 6-month intervals. Reviews are attended by a number of agencies who help and support the child and are a good forum for talking about plans for the them going forward including contact. The new regulations amend the commitment to hold reviews from every 6 months to ‘where reasonably practical’.

Another change that may raise concerns is the Adoption procedures. Under the old regulations only a ‘nominated officer’ of a local authority could approve the placement of a child with foster carers who are also prospective adoptive parents for that child. Such a placement could only be made after the local authority has prepared a placement plan for the child. The new regulations removed that requirement and there is disquiet in that context by the explanatory notes to the regulations which records “This means that these placements are able to proceed swiftly, ensuring children are not waiting due to procedural delays”.

Whilst understanding that society doesn’t operate normally in pandemic conditions the changes have been highly criticised by a children’s right charity Article 39. They observe that the changes are unprecedented and note that some of the changes now implemented under the umbrella of COVID-19 have been proposed by the government before. Additionally, they say, the regulations do not provide for one additional safeguard for a looked after child but rather diminishes what was previously in place.

Responding to the criticisms the Association of Directors of Children Services recognised the concerns raised by the new regulations providing some ‘flexibilities’ due to the pandemic, however sought to reassure that the best interests of children and families will remain at the heart of any decision made by local authorities.

It will be interesting if the families that the local authority work with agree with that assertion.

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