Judgment is ‘Huge Victory’ Says Lawyer Representing Charity Article 39

The Education Secretary acted unlawfully when he failed to consult over plans to change legal protections for children in care during the Covid-19 pandemic, the Court of Appeal has ruled in a judgment handed down today.

Children’s rights charity Article 39 launched a legal challenge after the government removed or reduced 65 safeguards for children in care in England, through the Adoption and Children (Coronavirus) (Amendment) Regulations 2020.  The regulations were announced on 23 April this year and came into force the following day.

The safeguards affected included timescales for social worker visits to children in care, six-monthly reviews of the children’s welfare, independent scrutiny of children’s homes, and senior officer oversight of adoption decision-making for babies and children.  It also impacted the protections in place for disabled children on short breaks and children in care sent many miles from home.

Following the decision, Article 39 instructed specialist public law and human rights lawyers at Irwin Mitchell to launch a legal appeal. The charity believed the decision had been made unlawfully after the views of children and young people in care, or organisations representing their rights, were not sought. 

The legal team at Irwin Mitchell enlisted the expertise of Jenni Richards QC and Steve Broach of 39 Essex, and Khatija Hafesji of Monckton Chambers.

It was found that officials in the Department for Education, including the Chief Social Worker for Children and Families, had privately communicated with a number of local authorities, adoption agencies, private providers and local government bodies during March and April. 

However, the statutory body for children’s rights, the Children’s Commissioner for England, was only informed of the changes in mid-April, after they had been signed off by ministers. 

The Court of Appeal has now found the Secretary of State for Education, Gavin Williamson, acted unlawfully in failing to consult the Children’s Commissioner for England and other children’s rights organisations before making “substantial and wide-ranging” changes to legal protections for England’s 78,000 children in care.

Lord Justice Baker said that the consultation process was “on an entirely one-sided basis and excluded those most directly affected by the changes.”  He added there was “no good reason” why it did not include the Children’s Commissioner and the other bodies and “on the contrary, there were very good reasons why they should have been included.”

Expert Opinion

“This is a huge victory for children’s rights, and is evidence that the law can be used to hold the government to account.

The changes made by the Secretary of State in April of this year removed key safeguards for children and young people in care with potentially devastating consequences. This judgment ensures that vulnerable children have a voice when decisions are made which affect them.

The Court of Appeal has unequivocally recognised the fundamental importance of ensuring that not only the Children’s Commissioner, but crucially also those who represent the rights of children in the care system, are consulted in relation to important decisions about them. The fact that we are in the middle of a global pandemic did not and does not give the government the right to make decisions without taking the views of those affected into account.”
Oliver Studdert - Partner

Carolyne Willow, director at Article 39, said: “I am hugely relieved and overjoyed that the Court of Appeal confirmed that children and young people, and the organisations who represent their rights and interests, must be consulted when the government is considering changes to their legal rights and protections.

“This should draw to a close backroom, secret government consultations which exclude the rights, views and experiences of children and young people.  As Lord Justice Baker has so powerfully communicated, it was precisely this perspective which the Secretary of State needed before embarking on any legislative change.

“The Government’s actions were shameful, both in the scale of the protections they took away from very vulnerable children in England and the way they went about it.  Many hundreds of care experienced people, social workers, children’s lawyers and others working in social care could see straight away what was so dangerous about these changes.  But it was too late by then; they had already come into force and ministers refused to budge.

“We are extremely grateful to our brilliant legal team who worked at speed throughout the first lockdown and with utter devotion to the children and young people at the heart of this case.  As a very small charity, this challenge would not have been possible without hundreds of kind donations from very committed individuals and organisations.  This has definitely been a huge team effort. 

“Today we celebrate children’s rights and the vital importance of judicial review in holding government to account for its obligations to children and young people.”

The judgment comes after the High Court previously found that the Education Secretary had not acted unlawfully in failing to consult organisations representing the rights, views and interests of children in care.  This has now been overturned by the Court of Appeal.

Lord Justice Baker explained it was “potentially misleading” for the Government to claim their actions were “broadly endorsed by the sector,” since “the sector plainly included not merely local authorities and service providers but also all those engaged or involved with children’s social care, including those bodies whose focus was on children’s rights.”  He further added “the fact that the Secretary of State was facing difficult decisions about whether and, if so, how to modify services made it important that he should receive as wide a range of advice as possible.”

Giving the leading judgment, Lord Justice Baker, with whom Lord Justice Henderson and Lord Justice Underhill agreed, said: “It was manifestly in the interests of the vulnerable children who would be most affected by the proposed amendments that those agencies and organisations representing the rights and interests of children in care should be consulted.”

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