Legal action launched to protect children in care

Children’s rights charity Article 39 has today (5 June) applied to the High Court for a judicial review of changes made to children’s social care law by the Department for Education. This was done without any public consultation or time given for parliamentary scrutiny and debate. 

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On 23 April 2020, Statutory Instrument 445 was laid before Parliament. This was the first public announcement of government plans to make around 100 changes to 10 sets of children’s social care regulations. All of the changes came into force the very next day, on 24 April 2020, affecting many thousands of vulnerable children.

We count 65 separate removals or dilutions of children’s legal protections – affecting children in care, and children who could come into care. The changes apply only to England; the Welsh government has stated it has no plans to amend its legislation in relation to vulnerable children.

Carolyne Willow, Article 39’s Director, said:

“It comes to something when a small charity has to take the government to court to reinstate safeguards for children in the care of the state. Local authorities have parental responsibility for three-quarters of the children affected by this radical deregulation. The legal protections snatched away were carefully built up from the 1940s onwards, and the government’s actions are dangerous. Its own statutory guidance explains in fine detail why children need the safeguards now gone. They were the culmination of decades of children’s experiences, testimony, learning and positive social work development. Terrible failures to protect children are also a significant part of that history. 

“Ministers have claimed people working in children’s social care asked for these extensive legal changes, but documents released to us show this was driven by central government and deliberately kept secret. Civil servants briefed Ministers that some may view their actions as watering down children’s safeguards, and said robust media responses were being prepared accordingly. Ministers were advised to announce a wider package of support to coincide with the changes to children’s law.

“No consultation occurred with children and young people affected by the government’s actions, and the Children’s Commissioner for England, who is required by law to promote and protect the rights of children, especially those in care, was only informed of the plans after they had been approved by the Children’s Minister. Children’s invisibility in the corridors of power is one of the principal reasons they have their own statutory body to champion their interests, so not properly involving the Commissioner adds insult to injury.” 

Oliver Studdert, partner at Irwin Mitchell, said:

“These Regulations were rushed through with little, if any, attempt to consider the views of those most impacted by the significant and wide-ranging changes which they introduced – children and young people in our care system. These are some of the most vulnerable people in society. They rely on the state to keep them safe, yet these Regulations remove essential safeguards and expose them to risk. In bringing this claim and challenging the lawfulness of the Regulations, Article 39 is giving them a voice.”

Our grounds for legal challenge concentrate on six areas of policy in particular:

  • The dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory;
  • The removal of the duty to hold six-monthly reviews of children in care;
  • The loss of safeguards for children placed out of their home area with people who are not connected to them;
  • The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
  • The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
  • The dilution of the duty on children’s homes to ensure that an independent person visits each month and reports on children’s welfare there.  

Article 39 is seeking a court order quashing Statutory Instrument 445. We contend that the changes to children’s legal protections are a disproportionate response to the Covid-19 crisis and significantly increase the level of risk to many children who are already exceptionally vulnerable. These changes were rushed through without the opportunity for any parliamentary scrutiny, and with no meaningful consultation. They are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989. We believe the Secretary of State for Education breached his statutory duty to consider the need to promote the welfare of children when laying the statutory instrument, required by the Children and Young Persons Act 2008.

Ministers have claimed the 65 changes were made in response to requests from ‘the sector’. However, correspondence disclosed by the Department for Education at the end of last week shows that it was the government which decided to review “all relevant children’s social care regulations” and only after this point did it select a number of organisations and individuals to consult in haste and in private.

Article 39 sees overlap in what was achieved overnight in April and other government deregulation attempts in 2016/17 and 2018/19.

In May 2016 a Bill was brought before Parliament which proposed to allow councils to opt out of their children’s social care duties for up to six years, as a trial for removing them from all local authorities. Ministers were forced to backtrack after Peers voted to delete the ‘exemption clauses’, and following very strong opposition from children’s rights campaigners, social workers, lawyers and others.

Then in 2018, the Department for Education published a guide which it said corrected so-called myths about councils’ legal responsibilities. Fifty organisations and social work experts wrote to the then Children’s Minister asking for the document to be withdrawn. It was eventually removed once Article 39 took legal action.


1.      Article 39 is represented by Oliver Studdert from Irwin Mitchell, Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.

2.      Statutory instrument 445 – The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – can be found here. Ministers have reiterated it will expire on 25 September 2020 “unless extended”. Several provisions will continue beyond this date, irrespective of the actions of Ministers.

3.      Article 39’s summary of the 65 legal safeguards which were removed or diluted without any public consultation or Parliamentary scrutiny and debate can be found here. This includes the list of provisions which will continue even after Statutory Instrument 445 has expired.

Please sign the #ScrapSI445 campaign petition here.

VIDEO: Watch Article 39’s Director explain why we threatened legal action (from May 2020):