The government is consulting over plans to extend flexibilities for local authorities during the COVID-19 pandemic.

The consultation, which runs until 28 February, is seeking views on a proposal to extend or amend a limited number of flexibilities within the Adoption and Children (Coronavirus) (Amendment) (No'.2) Regulations 2020, in relation to Medical Reports, Virtual Visits and Ofsted Inspections.

The Department for Education is asking for views on two options for the health assessment provision for fostering and adoption and extending the virtual visits’ provisions for a further six months.

In addition, it is requesting feedback on extending suspension of the regulation that details the minimum frequency of Ofsted inspections for all children’s social care providers for a further six months.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 came into force on 24 April 2020 to provide local authorities and children’s social care providers with temporary flexibilities to support them during the coronavirus (COVID-19) pandemic.

However, the move was criticised by a number of areas of the sector including children’s rights charity Article 39, which brought the judicial review saying the legislation made 65 losses or dilutions of safeguards for children in care, and children who could come into care.

The High Court granted permission on three separate grounds:

1) That the DfE failed to consult before making the changes to children’s legal protections

2) That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989

3) That Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

Permission was not granted on the fourth ground, relating to Parliamentary procedure and failure of the government to make time for Members of Parliament and Peers to scrutinise the changes prior to them coming into force.

At the time, Carolyne Willow, Article 39’s Director, said: “Children in care should be receiving the very best protections we can offer during this global pandemic. Families up and down the country have responded to these very frightening and uncertain times by changing their work and home routines to ensure their children’s needs are properly met. Removing legal protections from children in the care of the state inevitably puts them at great risk, and we know from past tragedies that too often children’s suffering goes hidden until it is too late and the harm has been done.”

However, the judicial review found that the DfE did not act unlawfully by introducing the secondary care legislation.

Article 39 appealed the judgement taking the case to the Court of Appeal and in November, the Court of Appeal ruled that Education secretary Gavin Williamson acted unlawfully by failing to consult with children’s rights organisations ahead of introducing changes to legal protections for children in care.

Meanwhile, during the legal challenge, the DfE consulted in August 2020 on whether to continue some of the flexibilities in the children’s social care sector that came into effect in April. These were in relation to the stage of the respective approvals process for adopters and foster carers that the medical reports would be needed, virtual visits/contacts and Ofsted inspection intervals. Following the consultation, a further set of regulations were laid and these are due to elapse 31 March 2021.

“Given the continued impact of the coronavirus (COVID-19) pandemic, we are now consulting on a proposal to extend or amend those regulations and we are inviting interested individuals and organisations to comment on our plans,” said the consultation.

“We have always been clear that these regulations would remain in place only for as long as they were needed,” the consultation concluded.

Closing date 28 February: Changes to the Adoption and Children (Coronavirus) (Amendment) (No. 2) Regulations 2020