On 24 April 2020 regulations were introduced to provide local authorities and children’s social care providers with temporary flexibilities to support them to focus on core safeguarding duties during the coronavirus pandemic. We made no amendments to primary legislation, and the vast majority of statutory duties in secondary legislation remained unchanged. The regulations – the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – are due to lapse on 25 September 2020.
When the regulations were introduced, we faced exceptional circumstances, with social workers and others facing decisions that they had never faced before. There was an urgent need to take action to ensure that local authorities and others supporting children and young people could focus on core safeguarding responsibilities should the worst-case scenario come to pass. We needed to prepare for very significant rates of staff sickness coupled with family illness potentially leading to many more children needing to be found emergency care. We were aware that the coronavirus pandemic would have a real impact on the lives of children and families, and that this would be a difficult time for them.
Protecting vulnerable children has been at the heart of the Government’s response to the virus. These regulations formed part of that response, alongside keeping schools and other settings open for vulnerable children, substantial additional investment, and additional support direct to children, young people, and their families.
The Government has always been clear that these temporary amendments should be used only when absolutely necessary and only if consistent with the overarching safeguarding and welfare duties that have remained in place. Our guidance sets out clear safeguards about how and when they should be used:
- where staff shortages, due to sickness or other reasons, make it difficult or impossible to meet the original requirements.
- where making use of flexibilities to take a different approach is the most sensible, risk-based response in light of other demands and pressures on services, this might involve focusing services on those most at risk.
- where there is a consequential reason to make use of flexibilities, for example, due to limited capacity in other providers or partners making it difficult or impossible to comply with the original requirements.
Our monitoring has shown that the majority of the regulatory flexibilities have been rarely used and only when needed in response to coronavirus.
Our approach to monitoring is based on a triangulation of information we are gathering from a range of delivery partners to understand which of the regulations are being used and why. We are actively seeking regular feedback from a variety of sources including local authorities, social workers, charities, Ofsted, and other key partners. We will continue to engage on this scale whilst the regulations remain in place.
Our monitoring data shows that the regulations are being used infrequently. Out of 128 local authorities we have spoken with in June and July, 87 have used at least one regulation, although many have only used them on a limited number of occasions and in a limited number of areas.
The most used related to the fostering and adoption regulations, notably allowing medical reports to be considered at a later stage in the adoption and fostering process though still prior to approval. This has minimised delays in approving adopters for children needing a new, forever, family. Similarly, relaxations around panels have allowed for the continued recruitment of foster carers and a continued functionality of processes.
Virtual engagement with children and families has often been used alongside face to face visits and, in some cases, this has resulted in greater levels of contact between children, young people, parents, and carers – and improved engagement from some young people.
Senior leaders in children’s social care have set out to the Government and Ofsted how they have approached the use of the temporary regulations and explained that they have robust sign-off processes in place for when a regulation has been used. Ofsted report that local authorities have said decisions on the use of the regulations are being made with the child at the heart of the case, in line with the principles in the guidance, including assessing risks and working on a collaborative basis.
We have always been clear that these temporary amendments will remain in place only for so long as they are needed.
The extraordinary measures the Government has taken over the last few months means that we are now in a much better position to ease the restrictions that everyone has faced. Given the lower level of coronavirus now present, there is a significantly reduced need for local authorities and providers to use these flexibilities. I therefore intend to update guidance immediately to make it clear that there should no longer be a need to use most of these flexibilities and will be writing to local authorities and providers accordingly. Where they do use flexibilities, local authorities and providers should ensure that they have strong justification.
I would also like to provide further clarity about the future of these flexibilities and am today announcing that, subject to a short period of consultation, the overwhelming majority of these regulations will expire as planned on 25 September.
The Government believes that there may be circumstances in which some services continue to face specific and exceptional challenges into the autumn. As more children are seen by schools, and social distancing eases further and hitherto hidden harms come to light, we must be prepared for the potential additional demands that may still be placed on services.
I am therefore minded, subject to consultation, to extend a very small number of temporary changes for a further period. These regulations specifically address the following points.
- Medical reports
In order to become a foster carer or adoptive parent, one needs to provide a medical report from a General Practitioner. As restrictions are eased and schools return, we expect that there may be more children needing care than is usual, and therefore there will be a higher need for potential adopters and foster carers. Our National Health Service still faces significant challenges as we enter a period of recovery. Therefore, I am minded to extend the amendments that allow more time for General Practitioners and other health professionals to provide information to support the process of approving much needed potential adopters and foster carers. This does not remove the requirement for medical reports to be provided but moves the time during the process that the report must be provided before the child is placed with the foster parent or adoptive parent.
- Virtual visits
We must be able to keep essential services, such as social worker visits, operating during any local lockdowns, and in cases where households are being required to self-isolate due to a case, or suspected case, of coronavirus, or contact with someone who has tested positive for coronavirus, in line with medical advice from the NHS test and trace service. Therefore, I am suggesting that it may be appropriate to continue to enable visits in these situations to happen virtually. However, in all other situations I would expect face to face visits to take place. Moreover, in my view the flexibilities regarding timing of these visits should lapse, as the provision for virtual visits should now provide sufficient flexibility on the basis that workforce capacity, the original reason for these flexibilities being introduced, is now no longer the concern that it was.
- Ofsted inspections
Ofsted inspections have not taken place since March so Ofsted will need a period of catch-up before it can resume normal service. As announced last week, Ofsted are planning to carry out a phased return to routine inspections. This will include risk-based assurance visits to children’s social care settings, based on the previous inspection judgement, the amount of time since a setting was last inspected and other information Ofsted hold about the setting. These assurance visits will occur between September 2020 and March 2021. At this point full graded inspections will recommence. I am therefore recommending that the suspension of the existing frequency regulation for Ofsted inspections be extended until 31 March 2021, to allow Ofsted to provide the most assurance, to the sector and the wider public, about the safety and care of children.
A short consultation will launch later this week to inform final decisions and I would encourage all interested parties to respond. Should a new Statutory Instrument be proposed to extend any flexibility beyond 25 September 2020, Parliament will be provided with the customary 21 days opportunity to scrutinise the regulations before they come into force.
Our guidance has been clear that the regulatory flexibilities should only ever have been used with senior management oversight and that all decisions should be recorded. I am, however, considering how additional safeguards on the use of the flexibilities could be employed. Our consultation will therefore seek views on this question.
As inspections resume, Ofsted will want to be assured that any flexibilities have been used in the best interests of children, following careful risk assessment and with clear records of decisions made by local authorities and providers. As such, local authorities and providers must maintain a focus on child-centred practice and continue to record their decisions and ensure that these records are available for Ofsted. Inspectors will want to see the best possible practice for children. Whilst routine inspections have been suspended, Ofsted has continued to inspect where they have been made aware of safeguarding concerns. They have acted swiftly and have taken action to restrict children going into a home or stop a home operating in 23 cases. They have continued to start proceedings to cancel the registration of homes or managers where this is the right thing to do. And while they have prioritised registration of new children’s homes, they have still refused to register people they did not think were suitable.
Throughout this pandemic, social workers, charities, and others working to support our most vulnerable children and families have worked tirelessly to ensure that they continue to receive the support they need. I would like to place on record my personal gratitude, and that of the whole Government, for everything they have done and continue to do. I would also like to acknowledge the extremely difficult circumstances many children and families have faced during this pandemic.
Protecting vulnerable children remains our top priority, as it does for local authorities and children’s social care providers across the country. As the country begins to return to a more normal way of life, it is absolutely right that this also applies to children’s social care.
This statement has also been made in the House of Lords