Care planning, placement and case reviews during COVID-19

May 12, 2020

Daniel Benjamin assesses the impact of the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 on the care planning, placement and case review obligations of local authorities.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the regulations”) came into force with little warning on Friday 24th April 2020.

They remain in force until 25th September 2020 (unless the expiry date is subsequently amended), save that the expiry of the regulations does not affect any action taken as a result of an amendment made by them whilst they were in effect (Regulation 14).

The Secretary of State must review the effectiveness of the amendments made by the Regulations during the period to which they are in effect (Regulation 13).

A number of statutory instruments are amended by the regulations. The focus of this piece is on the amendments to The Care Planning, Placement and Case Review (England) Regulations 2010[1] made by Regulation 8 of the regulations.

It seems that substantive amendments have been made to the powers and duties of Local Authorities in England in 3 areas, each of which will be considered in turn:

(a) the placement of children (with people who are not approved foster carers, with foster carers outside the terms of the carers’ approval, and with foster carers who are prospective adopters);

(b) the placement plan; and

Placement of Children

People who are not approved foster carers (Regulation 24 placements)

Regulation 24 of The Care Planning, Placement and Case Review (England) Regulations 2010 is (or, rather, was) the provision that permits a local authority to place a child with a relative, friend or other person connected with the child who is not an approved foster carer on a temporary basis.

Regulation 24(1) of the 2010 Regulations has been replaced with the following:

"Where the responsible authority is satisfied that the most appropriate placement for C is with a person who has not yet been approved as a local authority foster parent they may approve that person as a local authority foster parent for a temporary period not exceeding 24 weeks (“temporary approval”) provided that they first comply with the requirements of paragraph (2)."

The requirements of Regulation 24(2) remain substantively unchanged.

There are two significant effects to the amendment to Regulation 24(1):

(a) The maximum period of temporary approval has been extended from 16 to 24 weeks.

(b) The person temporarily approved need not be a family member, friend or other person connected with the child. Whilst in the ordinary course of events it is to be expected that the carer(s) temporarily approved will be such a person, it is conceivable that a local authority could use the amended Regulation 24 to provide temporary approval to a person who is in the process of seeking approval as a non-kinship foster carer but who has not finally been approved.

As a result of the removal of the limitation of Regulation 24 placements to relatives, friends and other connected persons, the regulations make multiple minor amendments to other parts of the 2010 Regulations to reflect the fact that ‘connected person’ no longer has any relevance (or even a definition).

Placements outside the terms of approval of foster carers

Regulation 23 of The Care Planning, Placement and Case Review Regulations 2010 governs emergency placements of children with foster carers in circumstances in which the terms of the foster carers’ approval are not consistent with the placement.

The regulations amend the maximum period of such an emergency placement from 6 working days to 24 weeks. This is a significant extension, particularly in light of other amendments (considered below) to the local authority’s visiting and case review duties.

Placements with prospective adopters

Regulation 22A of The Care Planning, Placement and Case Review Regulations 2010 governs the placement of children with foster carers who are approved prospective adopters. Until now, the requirements of Regulation 22A included prior approval by the nominated officer of the local authority of the particular placement for the child and prior preparation of the placement plan.

The regulations amend this provision so as to remove the need for the placement plan to be prepared before the placement is made. In addition, it is no longer the nominated officer of the local authority who must approve the particular placement; instead the local authority itself must have regard to the matters that would previously have been considered by the nominated officer: (i) that the placement is the most appropriate for the child and safeguards and promotes the child’s welfare, (ii) that the child’s wishes and feelings have been ascertained and considered and that the IRO has been informed, and (iii) that the children’s parents/guardians have been notified (if their whereabouts are known).

Placement Plan

The Placement Plan

Regulation 9(2) of The Care Planning, Placement and Case Review Regulations 2010 provides that, where it is not reasonably practicable for the local authority to complete the placement plan before making a placement, it must be completed within 5 working days of the start of the placement.

This has been amended by the regulations so that, where it is not reasonably practicable for the local authority to complete the placement plan before making a placement, it must be completed as soon as practicable after the start of the placement.

Consequential amendments are made to a number of other provisions of the 2010 Regulations, including those relating to the contents of the care plan (such that references to inclusion of the placement plan in the care plan make clear that this is only once the placement plan has been prepared).

A similar amendment is made to Regulation 47C(3) of the 2010 Regulations so as to provide for a placement plan to be completed as soon as reasonably practicable after a child’s remand to Youth Detention Accommodation (rather than within 5 working days of the remand).

Assessment of a placement

Regulation 18 of The Care Planning, Placement and Case Review (England) Regulations 2010 provides that a decision to place a child in a particular placement must not be put into effect until it has been approved by the nominated officer of the local authority and a placement plan has been prepared. This is amended by the regulations so as to remove the need for prior preparation of the placement plan.

Further, Regulation 19 of the 2010 Regulations, which sets out conditions for the local authority to place a child in a placement before completing its assessment of the suitability of that placement to care for the child (where the nominated officer of the local authority considers it to be necessary and consistent with the child’s welfare), has been amended such that the period within which the assessment of the suitability of the placement must be completed is no longer 10 working days; instead the assessment must be completed as soon as reasonably practicable.

Long Term Foster Placement

Regulation 22B of The Care Planning, Placement and Case Review (England) Regulations 2010 sets out the conditions that must be complied with before a local authority can place a child in a long term foster placement.

Until now, one of the conditions is that a placement plan has been prepared. The regulations remove that condition (all other conditions remain as before).

Reviews and Visits

Visits

Regulation 28 of The Care Planning, Placement and Case Review (England) Regulations 2010, which provides for visits to children in their placements, is amended (a) such that visits may be conducted by telephone, video-link or other electronic means, and (b) to provide that where the visitor is unable to visit within the timescales required the visit takes place as soon as practicable thereafter.

Local authorities should bear in mind that a visit by telephone will be far less satisfactory than one conducted by video-link as the visitor will not be able to see the child or the conditions of the placement. However, a video-link visit ought not be considered the equal of a visit in person: during a video-link visit only the part of the placement near the video camera (whether a fixed camera or a moveable device) will be capable of being seen by the visitor, and the visitor will not be able to ensure that the entirety of the placement premises is seen.

Reviews

The regulations amend the time in which the third and subsequent reviews of the child’s case must be conducted by the local authority (Regulation 33 of The Care Planning, Placement and Case Review (England) Regulations 2010): whilst the first review must still be conducted within 20 working days of the child becoming looked after and the second review must still be conducted within 3 months thereafter, the third and subsequently reviews need no longer be conducted within 6 months of the previous review; instead such subsequent reviews must take place ‘where reasonably practicable’ after the previous review.

Accordingly, on the face of it, a local authority is no longer obliged to conduct any reviews after the second review. However, local authorities should bear in mind that the regulations are (as things stand) to be in force for less than 5 months so at most one review can be dispensed with (unless the expiry date of the regulations is extended).

As for the conduct of reviews, the restrictions on an IRO adjourning a review (Regulation 36 of The Care Planning, Placement and Case Review (England) Regulations 2010) are loosened: until now the IRO could only adjourn a review once and where he or she is not satisfied that the local authority has provided sufficient information; now it seems there is no limitation on the circumstances in which the IRO can adjourn the review nor the number of times that the review can be adjourned. However, it seems that any single adjournment is still limited to a period of no more than 20 working days.

Short Breaks

Similar amendments to the provisions on the frequency and manner of visits and reviews are made to Regulation 48 of The Care Planning, Placement and Case Review (England) Regulations 2010, which provides for modifications of the 2010 Regulations to short breaks. Further, the requirement that a single placement under a short break be for no longer than 17 days is removed; now the only temporal limitation on short breaks for the modifications to apply is (as before) that the short breaks do not exceed 75 days in any period of 12 months.

Concluding thoughts

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 will assist local authorities in dealing with illness amongst staff and foster carers and in undertaking work remotely during the COVID-19 pandemic.

It remains for each local authority to decide whether, and to what extent, to take advantage of the greater flexibility afforded by the amendments to The Care Planning, Placement and Case Review (England) Regulations 2010. In doing so, local authorities should have at the forefront of the mind the fact that the amendments are said to be temporary, and at the present time are due to expire on 25th September 2020.

Daniel Benjamin is a barrister at 2 Dr. Johnson’s Buildings specialising in family and criminal law.

[1] No hyperlink has been provided to The Care Planning, Placement and Case Review (England) Regulations 2010 on legislation.gov.uk because the version set out on that website has not been updated to reflect amendments made in the last decade.

This articles was first published on the set's blog on 28 April.