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Original Regulations, April—September 2020

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 came into force on 24 April 2020, and many of its amendments expired on 25 September 2020.

The regulations temporarily amended 10 sets of regulations relating to children’s social care in England. The Department for Education (DfE) said the changes were intended to help local authorities to “prioritise the needs of children, whilst relaxing some administrative and procedural obligations…but maintaining appropriate safeguards” during the coronavirus outbreak.

A debate was held in the House of Commons on 10 June 2020. The Leader of the Opposition, Sir Keir Starmer, had tabled a prayer to annul the Negative Statutory Instrument as an early day motion (Number 445) on 4 May 2020. Upon being put to a vote at the conclusion of the debate, the motion that a humble address praying the Statutory Instrument be annulled, was defeated.

Following a consultation, the Government confirmed its plans for the majority of amendments to lapse on 25 September. The Government said that “the effect of coronavirus (COVID-19) on the children’s social care sector has not been as severe as initially feared and local authorities and providers have had to use the flexibilities rarely”.

Judicial Review of Original Regulations

The High Court considered a judicial review brought by the charity Article 39 against the Regulations in July 2020, finding that the DfE did not act unlawfully by introducing the changes. This was reversed on appeal, where the Court of Appeal determined in November 2020 “that the Secretary of State acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Amendment Regulations”. This decision related to the No.1 Regulations, which had expired in September 2020.

Consultation and extension, August—March 2021

Following a consultation, the DfE said that it intended to amend 6 sets of regulations until 31 March 2021. These relate to medical reports in the adoption and foster care process, visits by social workers, Ofsted inspections and virtual visits. The Adoption And Children (Coronavirus) (Amendment) (No. 2) Regulations 2020 were laid before the UK Parliament on 28 August 2020, with accompanying explanatory memorandum.

These Regulations, made under negative procedure, came into force on 25 September 2020. In August 2020, the DfE stated it “has no plans to extend the[se] regulations beyond March 2021”.

Consultation on proposed extension to September 2021 and outcome 

In February 2021, the DfE announced a consultation on extending flexibilities in the No.2 Regulations to 30 September 2021, relating to medical reports, virtual visits and Ofsted inspections, and introducing a new position for adoption, in removing the need for a full medical examination of the prospective adopter but retaining the need for a medical report.

The consultation ran until 28 February 2021. The Government said an extension was necessary due to the “challenges from the coronavirus (COVID-19) pandemic remain[ing] significant, not least given the context of the new, more transmissible variants of the virus and an increase in infection rates”.

In response to the consultation, the Department decided to continue only with the proposals to extend the existing flexibilities on medical reports, virtual visits and Ofsted inspection cycles. The other proposals, the DfE said, require “further reflection” and it would not “proceed with these additional flexibilities at this time”. 

New Regulations were laid before the UK Parliament on 9 March 2021. They are due to come into force on 30 March 2020 and expire on 30 September 2021.

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