This is an interesting Court of Appeal COP case within the Covid-19 protocol, with I anticipate many many more to follow in due course. This case concerned the initial Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (“first restrictions Regulations”); relating specifically to whether the provision of care was a “need” or not. The initial case was to seek to determine whether the appellant party was in receipt of a ‘shared care package’. In the first instance, it was considered that the care being provided by a mother and step-father was not “essential” and therefore leaving their homes during the initial UK lockdown was a criminal offence to care for the protected party. The decision was overturned on appeal with judgment handed down on 11 January 2021 within the Covid-19 protocol determining the following key points; thus allowing the appeal.

The Judge initially was wrong to say that this was not a shared care package and that the parents were not providing care. Reference to simply making contact was made, whereupon the intention was to always provide care as part of that contact.

With reference to The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020– ‘Neither the opening words of regulation 6, nor the words in regulation 6(2)(d), provide for the care to be “essential”. I note that when the first restrictions Regulations intended to place a high test of the matter being essential, as in regulation 6(2)(a) relating to obtaining basic necessities, the word “essential” was used.’ The emphasis being given to the ‘need’ of the appellant; with emotional needs and best interests having to be considered alongside any physical needs.

I’m sure this will be part of a long line of these types of cases, and it is an interesting read. Especially to see how fast the legislation is moving alongside Covid itself, but also to consider that caring for your child can be contemplated as a criminal offence in the current times.

The full judgment can be revised on the Bailii website. 

Kate Benn

Business & Litigation Manager

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