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Update on the Coronavirus Health Protection Regulations: Implications for Children

Since the implementation of legislation pertaining to the Coronavirus pandemic, the Youth Justice Legal Centre have provided regular updates following the ongoing releases of government legislation.

This update addresses the further changes made by The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020, which came into force on 14 September 2020 and the guidance which was also published[i]. In particular, we outline the changes the amendments make to the Act and the Regulations in respect of its effect on children and young people.

This legislation does not apply to some parts of England that now have their own specific legislation.

Details

Restrictions on gatherings

The principle change to the regulations introduced by this amendment, are the variations to regulation 5 which from 14 September 2020 will mean that no person can meet people from other households in groups of more than six people. Children are counted in the group of six. Significantly, this will apply to any gatherings both indoors and outdoors including homes.

The amendment does allow more than six people to meet if they are from the same household,[ii] OR where they are considered as linked households[iii].

Exceptions:

The additional exceptions which were listed previously, have also been amended slightly[iv].  The amendments now allow for more than six people, as follows:

  • Providing care or assistance to a vulnerable person[v]
  • For access arrangements where children do not live in the same household as both their parents[vi]
  • To gather as a support group, which is defined as a group providing mutual aid, therapy or any other form of support to members or those attending meetings[vii]. There is a non-exhaustive list of the type of support that could be offered, including[viii]:
  • Victims of crime, including domestic abuse;
  • Individuals with or suffering from addictions;
  • New parents;
  • Those caring for people with long-term or terminal illnesses, or who are vulnerable;
  • Individuals experiencing issues related to their sexuality or identity; and
  • Those who have suffered a bereavement.
  • Gatherings of no more than 30 people for the purpose of a marriage or civil partnership, where this is on approved premises[ix]. Or for the purposes of a wedding reception[x].
  • A gathering of no more than 30 people for a significant event[xi]. This is defined as a significant milestone in a person’s life according to their religion or belief, NOT including birthdays. This also covers funerals or other such events to mark a person’s death[xii].
  • Gatherings for the purpose of protest, where organised by a recognised political, charitable, benevolent or philanthropic body[xiii].
  • Gatherings for sports where the person is participating, where this has been organised for the purpose of sport or fitness. Spectators and parents are not included[xiv]
  • Gatherings in criminal justice accommodation, including prisons, young offenders institutions, secure training centres, approved premises or bail hostels[xv].
  • Gatherings taking place outdoors for the purpose of a relevant outdoor activity. This is defined as an activity requiring a licence, permit or certificate which is issued by a public body[xvi].

Additionally, the amendment specifically restricts gatherings indoors which could loosely be defined as ‘raves’ or parties, to no more than six people.[xvii].

Where a group includes someone covered by one of these exemptions, they are not counted as part of the gatherings limit. This means, for example, that a tradesperson can go into a household of six without breaching the limit if they are there for work.

Importantly for young people, according to the guidance,[xviii] exceptions to the new six-person limit include:

  • Formal registered childcare,
  • Education or training,
  • Supervised activities provided for children – including wraparound care, youth groups and activities, and children’s playgroups,
  • Before and after school clubs or other out-of-school setting provision for children is also exempt.

The Government has also released guidance in relation to measures for holiday and after-school clubs and other out-of-school settings. [xix]

If an exemption does apply then the group can meet but not in a home unless part of the home is operated by a business, a charitable, benevolent or philanthropic institution or a public body[xx].

The question also arises of whether a group gathering that is larger than six for a work or charity purpose can ‘mingle’. The regulations do not seem clear on this although the government guidance published with the regulations states groups of more than six people must not mingle (unless from the same household or a linked household).[xxi]

Similarly, the regulations state a ‘sports gathering’ is an exception but the guidance states it does ‘not include informal sport or fitness activity with family or friends which must be limited to a group of 6.’ This would suggest a group informally taking a football or frisbee to a park to play together would not be allowed but that professionally and commercially run sporting sessions are allowed in larger groups.

However, it is important to note that guidance is not binding in the same way as legislation.

Self-isolation regulations

https://www.legislation.gov.uk/uksi/2020/1045/introduction/made

These regulations came into force on 28 September 2020 and include a legal duty to self-isolate if a person tests positive for COVID-19 or is told to by the contact tracing system to self- due to close contact with someone who has tested positive. This does not include being told by the NHS tracing smartphone app. It includes requiring parents to ensure children isolate.

There are exceptions which allow individuals to leave home for (not all included here):

  • Medical assistance (including metal health)
  • Veterinary assistance
  • Fulfil legal obligations (including attending court or bail obligations)
  • Avoid risk of harm
  • Attend funeral of close family member
  • Obtain basic necessities (e.g. food)
  • Access critical public services (e.g. social services)

The person must self-isolate for 10 days starting from either when the symptoms started or when they had the test taken if they have had a positive test.

Latest businesses and services regulations

https://www.legislation.gov.uk/uksi/2020/1029/pdfs/uksi_20201029_en.pdf

https://www.legislation.gov.uk/uksi/2020/1046/contents/made

These regulations came into force on 24 September 2020.

A few of the most notable changes were:

  • Businesses must not sell food or drink between 10pm and 5am (excluding take away or delivery)
  • Businesses must take contact details for customers, can only take reservations of up to six people and must enforce social distancing – they can be fined up to £10,000 if they do not
  • Staff in hospitality venues must wear masks (as must customers if not eating or drinking)
  • Financial penalties for not wearing a mask or being in a group of more than six has increased to £200 (for the first offence)
  • Only 15 people are allowed at weddings or civil partnerships (in groups of six)
  • Funerals can have up to 30 people attend
  • Adults can only play organised indoor sports in groups of six or less – children’s sport remains exempt
  • Larger groups can take part in formal organised sports outside

Commentary

The most significant adjustments brought about by these amendments, relates to the changes to the way that households are defined. Unless the households are specifically linked – within the narrow definition of what linking involves – there is now a strict rule against exceeding six people at any meeting, including children. This will enable the police to enforce this regulation far more easily, since the onus would be on such groups to show that they are linked households or come under an exception. In reality, any group exceeding six people may be more likely to invite the attentions of the police.

Otherwise, education and work settings are unaffected, and organised team sports will still be able to proceed with up to 30 people. The priority of facilitating activities for children young people is welcomed. However, there is concern that young people could easily inadvertently misinterpret the current guidance – for example, they would be allowed to attend their youth club where more than 6 people can gather however they would have to remember to not travel there or back  with more than five other people and they would not be allowed to gather after the session ended  with more than five from the youth club.

There are still many unanswered questions a lack of clarity around specific situations. The ambiguity between the actual regulations and guidance is unhelpful. It is concerning that the most vulnerable in society, especially children and young people, will be most susceptible to unintentionally breaching the current regulations which could amount to a criminal offence.

Written by Hannah Williams (Barrister) and Stephen Garbett (Pupil Barrister) in collaboration with the Youth Justice Legal Centre. 

References:

[i] Coronavirus (COVID-19): Meeting with others safely (social distancing) updated 14 September 2020 https://www.gov.uk/government/publications/coronavirus-covid-19-meeting-with-others-safely-social-distancing/coronavirus-covid-19-meeting-with-others-safely-social-distancing

[ii] Amendment (3)(a)(1)(a) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[iii] Linked households are defined as where a household containing one adult, or one adult and one or more people under 18 years old as of the 12th June 2020, choose to be linked with a second household. There is a requirement that neither household are linked to any other household, and that all the adult members consent to this linking. (Amendment (4)(1) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020)

[iv] Amendment (3)(a)(c) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[v] Amendment (3)(b)(ii)(vi) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[vi] Amendment (3)(b)(ii)(vii) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[vii] Amendment (3)(b)(iii) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[viii] Amendment (3)(e)(5A) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[ix] Amendment (3)(b)(f) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[x] Amendment (3)(b)(h) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xi] Amendment (3)(b)(g) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xii] Amendment (3)(e)(5B) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xiii] Amendment (3)(b)(i) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xiv] Amendment (3)(b)(j) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xv] Amendment (3)(b)(k) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xvi] Amendment (3)(b)(l) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xvii] Amendment (3)(c) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xviii]Guidance: Coronavirus outbreak FAQs: what you can and can’t do, updated 14 September 2020 https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do

[xix] Protective measures for holiday and after-school clubs, and other out-of-school settings during the coronavirus (COVID-19) outbreak 20 August 2020 https://www.gov.uk/government/publications/protective-measures-for-holiday-or-after-school-clubs-and-other-out-of-school-settings-for-children-during-the-coronavirus-covid-19-outbreak/protective-measures-for-out-of-school-settings-during-the-coronavirus-covid-19-outbreak

[xx] Amendment (3)(a)(2)(a) of the Health Protection (No. 2) (England) (Amendment) (No. 4) Regulations 2020

[xxi] Coronavirus (COVID-19): Meeting with others safely (social distancing) updated 14 September 2020 https://www.gov.uk/government/publications/coronavirus-covid-19-meeting-with-others-safely-social-distancing/coronavirus-covid-19-meeting-with-others-safely-social-distancing and https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do