Charity sends letter before action over regulations relaxing social care protections

Children’s rights charity Article 39 has threatened the Department for Education with legal action if it does not withdraw regulations aimed at assisting the children’s care sector during the COVID-19 crisis.

Article 39 says the Adoption and Children (Coronavirus)(Amendment) Regulations 2020 (statutory instrument 445) remove or weaken 65 children’s safeguards, “without any evidence of their connection to the current serious health crisis”.

The letter before action claims the government has acted unlawfully in its failure to consult on the changes and in not giving any time for Parliamentary scrutiny. 

The charity says it has focused its claim on six specific changes:

• The dilution of duties relating to social worker visits to children in care, "where even a six-weekly telephone call is no longer mandatory";
• The removal of the duty to hold six-monthly reviews of children in care;
• The loss of safeguards for children placed out of area with people who are not connected to them;
• The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
• The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
• The dilution of the duty on children’s homes to ensure independent visits and reports on children’s welfare there.  

Article 39 is calling on the government to withdraw the statutory instrument with immediate effect and to give an assurance that any new regulations will be subject to proper consultation, Parliamentary scrutiny and children’s human rights and equality impact assessments.

Carolyne Willow, Article 39’s Director, said:“This is an outrageous attack on safeguards which have been built up over 70 years, often in response to terrible failures to protect children.

“Legal action is always a last resort but we consider that this is the only way to ensure the rights of children in care are quickly reinstated. There is no obvious link between COVID-19 and the vast majority of the protections snatched away from vulnerable children. Indeed, since 2016 there have been three failed attempts by government to remove some of the most significant safeguards taken away this time – actions which were, in the past, strongly resisted by parliamentarians, care experienced people, social workers, children’s lawyers, charities and others.”

Irwin Mitchell partner Oliver Studdert, who is acting for Article 39, said: “The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 remove a number of the essential protections put into place by law to safeguard children in the care system. The government should not use the COVID-19 crisis as an excuse to implement a large number of unnecessary and potentially dangerous changes to the way in which looked after children are supported.

"Many of the changes expose these children, who are some of the most vulnerable children in society, to additional risk. The regulations, which are widely opposed, have been rushed through without any meaningful attempt to consult, at a time where children in care are likely to be in need of greater levels of support.”

Irwin Mitchell have instructed Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.

The Children’s Commissioner is among those to have strongly criticised the regulations, saying they were unnecessary and calling for their revocation.