Local Authority’s duty to carry out inspection of Children’s homes under s80 of the Children Act 1989: Covid-19 Guidance

Local Authority’s duty to carry out inspection of Children’s homes under s80 of the Children Act 1989: Covid-19 Guidance

In the midst of the Coronavirus outbreak (‘Covid-19’), there has been little guidance as to what social workers should do when they are refused entry into the home of a child in care (or ‘looked after child’), due to the parent’s arguments that they are self-isolating or claiming that they have contracted the virus. There is a real risk that families may be using Covid-19 as an excuse to avoid contact with the Local Authority and therefore, places any children involved at risk of further abuse.

The recently passed Coronavirus Bill[1] and corresponding Guidance[2] is unfortunately silent as to any relaxation of a Local Authority’s statutory duty under the Children Act 1989 to carry out an inspection of children’s home in the current climate.

However, as Covid-19 and legislation surrounding it progresses and changes, there may be future legislation and guidance continuing to emerge in the near future. As it stands the current laws, regulations and guidance provided is still in force and should be followed. 

What is the applicable  Law? 

Children Act 1989 (‘CA 1989’)

Under section 80(1) CA 1989, any appropriate National Authority may cause to be inspected any premises where a child is living (s80(1) (a – l)).

Under section 80(5)(a), Local Authorities are authorised to carry out such inspections and shall have the right to enter the premises for that purpose at any reasonable time (s80(8)) and may under section 80(6) –

(a)     inspect the children there; and

(b)     make such examination into the state and management of the home or premises and the treatment of the children there as he thinks fit. 

2010 Regulations[3]

The 2010 Regulations set out in further detail what Representatives of the Local Authority are expected to do when seeing the child.

When considering the frequency of visits as part of their arrangements for supervising the child’s welfare, the responsible Authority must ensure that their Representative visits the child, wherever the child is living [Regulation 28(1)].

The Local Authority in undertaking their statutory duty, must ensure that their Representative visits the child, wherever the child is living and the Representative must speak to the child in private, unless –

(a)    The child, being of sufficient age and understanding to do so, refuses,

(b)    The Representative considers it inappropriate to do so, having regard to the child’s age and understanding, or,

(c)     The Representative is unable to do so

[Regulation 29]

What does the Law mean in the current climate?

Although the Local Authority has the right to enter the premises (s80(8)), there is no express wording within either section 80(6) CA 1989 or the 2010 Regulations stating that the Representative must do so in order to carry out their duty. Section 80(6) simply states that a Representative may enter the premises. Therefore, it is arguable that a Representative will not be in breach of their statutory duty under section 80(6)(a) or (b) if they carry out their inspection and assessment without entering the premises.

If such an interpretation is to be placed on section 80(6), the corresponding Regulations and Guidance should be read in the same light. Paragraph  3.245 of 2015 Guidance[4] states that ‘The standard of care should be observed and the child’s bedroom sometimes seen’. There is no express wording within the 2015 Guidance stating that the standard of care must be assessed in the child’s home, only that it ‘should be observed’ and  the child’s bedroom seen ‘sometimes’. Further, the Local Authority’s duty under section 80(6)(b) need only be carried out where the Representative ‘thinks fit’. Therefore, it is not necessary for these to be viewed on every home visitation. As such, an assessment of the state of the premises and the child’s care within it should only be undertaken where the Representative considers it necessary and will be a decision based on their own and the Local Authority’s professional judgement.

In addition, paragraph 3.250 of 2015 Guidance states that ‘Joint activities between the child and the social worker outside the home will allow the child to speak more freely’. This not only establishes that inspection of the child may take place outside of the premises, but also lends itself to achieving the Representative’s duty to speak to the child in private [Regulation 29] (or speak to the child alone – paragraph 3.243, 2015 Guidance).

There is further argument to suggest that the Local Authority will not be in breach of their statutory duty if they are unable to speak to the child in private, where the child is of sufficient age and understanding. Regulation 29(1)(c) states that Representative must speak to the child unless they ‘are unable to do so’. There is no further clarification of Regulation 29(1)(c) save for the limited explanation in the 2015 Guidance which gives the example of ‘because the child is out’. Therefore, it is arguable that the Regulation is open to interpretation as to potential barriers stopping the Representative from speaking to the child. This may include the parent’s refusal to allow the Representative to see the child, due to their ‘self-isolation’.

Practical Guidance:

In light of the Government’s response to Covid-19, social workers should consider their own safety and the safety of those around them and should refrain from unnecessary exposure where possible. However, following school closures and the Government’s encouragement for families to stay home, there is an increased risk posed to children in care who rely on third party sightings, particularly those provided by schools, in order to ensure that their safety and welfare is being maintained. The Local Authority may need to consider reviewing the families in their care and assess whether additional visits/contact should be put in place for families who are now unlikely to have access to other agencies they have previously relied on or have been involved with. 

Video-Calling

If the parents have mobile phones or laptops that can accommodate either Facetime, Skype or other video-calling technology,  the social worker will have the ability to;

  • inspect the state of the premises and the child’s bedroom
  • see and speak to the child

N.B  Family members should be asked to leave the room that the child is in and close the door to ensure privacy. 

Visitation ‘on the premises’

If the parents are unwilling to allow the social worker to enter the property, it may still be possible to view the child at a distance, for example;

  • The child may be presented to the social worker at the front door. This will allow the child to be seen and spoken too if the parents distance themselves.
  • The child may be presented in the garden of the property if the social worker is able to gain access to it, without having to pass through the inside of the premises.
  • If there are windows on the lower floor of the premises which can provide a sufficient view of the child and the inside of the premises the social worker may inspect and speak to the child.

N.B. Following Government guidance, a distance of at least two metres should be kept between the social worker and the child.

Visitation ‘within the premises’

Whilst the social worker has the right to enter the premises (s80(6) CA 1989) it is unlikely that it would be appropriate without Court approval. This is because where an inspection must take place within the premises, the social worker must be fitted with protective equipment before entering the premises. Such equipment may include, but is not limited to;

  • Face-mask
  • Gloves
  • Protective clothing
  • Where possible, protective equipment should be provided to the children being inspected

The welfare of the child is the paramount consideration. Such measures are likely to be considered extremely damaging to the child’s mental and emotional wellbeing and should be avoided wherever possible. Such action should only be taken where absolutely necessary. It is for the Local Authority to consider in their professional judgement whether they deem these actions necessary but given the likely impact on the child of such a visit, it would be advisable for an urgent application to be made to Court before any such actions are taken.

N.B The list of protective equipment is not exhaustive. The social worker should refrain from making contact with any objects in the premises and should, where possible, keep a distance of two metres from all other persons at all times. If any Representative fears that they have contracted the virus or been in contact with any symptomatic individual, visitation within the premises is not advised.

Refusal to co-operate

If the parents initially refuse to co-operate the Local Authority should consider if the visitation can be re-scheduled and whether any further provisions can be put in place in order to facilitate and carry out their duty.

If the parents either continue to refuse inspection of the child, or having attempted to carry out the visitation using alternative methods which have not been effective, the matter will need to be referred to Court in order to enforce any current order in place.

If in more serious circumstances, there is an immediate risk to the child’s welfare, the Local Authority will need to make an application to the Court to remove the child and place it in its care forthwith.

For further updates from the judiciary visit judiciary.uk.

 

Liberty Crawford

Magdalen Chambers

27 March 2020

 

[1] https://services.parliament.uk/bills/2019-21/coronavirus.html

[2]https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf

[3] The Care, Planning, Placement and Case Review (England) Regulations 2010

[4] The Children Act 1989 Guidance and Regulations: Volume 2: Care planning, Placement and Case Review 2015

As published by Class Legal