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

Children’s rights charity Article 39 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 – affecting many thousands of the most vulnerable children in the country.

The High Court granted permission on three separate grounds:

1) That the Department for Education 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 the 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.

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.”

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.

The changes, also known as statutory instrument 445, were introduced on 24 April and are due to expire on 25 September.

In a written statement of 14 July 2020, the Children's Minister, Vicky Ford, said that “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”.

Ms Ford defended the need to introduce the measures saying: “There was an urgent need to take action to ensure that local authorities and others supporting children and young people could focus on core safeguarding responsibilities should the worst-case scenario come to pass. We needed to prepare for very significant rates of staff sickness coupled with family illness potentially leading to many more children needing to be found emergency care. We were aware that the coronavirus pandemic would have a real impact on the lives of children and families, and that this would be a difficult time for them.”

“The extraordinary measures the government has taken over the last few months means that we are now in a much better position to ease the restrictions that everyone has faced. Given the lower level of coronavirus now present, there is a significantly reduced need for local authorities and providers to use these flexibilities. I therefore intend to update guidance immediately to make it clear that there should no longer be a need to use most of these flexibilities and will be writing to local authorities and providers accordingly. Where they do use flexibilities, local authorities and providers should ensure that they have strong justification,” she added.

The government has since, 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.

The judicial review was held on Monday 27th and Tuesday 28th July and a verdict is expected on Friday or next week.

If the judge finds in favour of Article 39, it is likely that the DfE will be asked to revoke the changes. If the judge finds in favour of DfE the measures are likely to remain until they expire on 25 September.