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High Court to consider judicial review over care legislation

The High Court will this week consider a judicial review against The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 which were introduced on 24 April 2020 in response to the COVID-19 pandemic.

The judicial was brought against the Department for Education by the children’s rights charity Article 39 on grounds including that they are contrary to the objects and purpose of primary legislation, and against the Education Secretary’s general duty to promote the well-being of children in England.

The regulations sought to temporarily amend 10 sets of regulations relating to children’s social care in England, with the Explanatory Memorandum stating that the changes are 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.

Article 39 said it can count 65 separate removals or dilutions of children’s legal protections affecting children in care, and children who could come into care in England.

In a written statement of 14 July 2020, the Minister, Vicky Ford, said that, subject to a short consultation, “the overwhelming majority of these regulations will expire as planned on 25 September”. The statement also noted that the regulations had been “rarely used and only in response to coronavirus”.

The government has, however, said it seeks to extend the temporary regulations in certain areas such as in relation to virtual visits, the frequency of Ofsted inspections, and medical reports during the adoptions process following consultation. The government has said that any extensions would be made via a new Statutory Instrument which will be laid before the House 21 days before it comes into effect.

A briefing describes the laying of the Statutory Instrument, its content, and reaction from the sector. It includes commentary from the Association of Directors of Children’s Services, the Children’s Commissioner for England, and charity organisations.

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.


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