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The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 came into force on 24 April 2020. The regulations temporarily amended 10 sets of regulations relating to children’s social care in England. The Government in the associated Explanatory Memorandum 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.

debate was held in the House of Commons on Wednesday 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.

The regulations provided for the amendments to be in place until 25 September 2020. 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”. 

Following the consultation, the DfE also 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. A new statutory instrument, The Adoption And Children (Coronavirus) (Amendment) (No. 2) Regulations 2020, was laid before the UK Parliament on 28 August 2020, with accompanying explanatory memorandum. The Regulations came into force on 25 September 2020. The Regulations are made under negative procedure. The DfE stated it “has no plans to extend the[se] regulations beyond March 2021”.

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. In November, the Court of Appeal said that the “Secretary of State [for Education] 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.

The briefing also references reports from the House of Lords Secondary Legislation Committee and the Joint Select Committee on Statutory Instruments. The Joint Committee sought to draw “the special attention of both Houses to these Regulations on the grounds that they require elucidation in three respects and are defectively drafted in one respect” and the House of Lords Committee expressed “regrets that the Children’s Commissioner, amongst others, was not consulted and that guidance was not published earlier” on the regulations. In September 2020, the Joint Committee on Human Rights “question[ed] whether removing vital protections for children was a proportionate response to the challenges posed to the children’s social care system by Covid-19”.

In September 2020, the House of Lords Secondary Legislation Committee welcomed the Government’s consultation on the second instrument, involving the Children’s Commissioner and children’s charities. 

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