Article 39 children’s rights charity will ask the High Court to reinstate legal protections for children in care when its case is heard on 27 and 28 July. Article 39’s request for the final hearing to be expedited was successful, recognising the vulnerability of children in care and the scale of the changes forced through overnight.
Without any public consultation or time given for Parliamentary scrutiny, the Department for Education removed or diluted 65 safeguards for children in care in England by laying a statutory instrument on 23 April. The changes took effect the very next day.
An expiry date of 25 September was set but an Explanatory Memorandum published alongside the regulatory changes said this end-date would be revoked in the event of the public emergency continuing. Similarly, the government’s child’s rights impact assessment said the time-period would be extended “should the public health emergency or its impact last longer”.
When giving evidence before Parliament’s Education Select Committee, the Children’s Minister further indicated that deregulation during COVID-19 could be a testing ground for permanent ‘relaxations’ of legal duties. This led Article 39 and others to suspect the government was reviving earlier failed attempts to deregulate children’s social care – most notably in 2016/17 when it tried to pass legislation which would have allowed councils to opt out of their statutory duties for up to six years as trials for countrywide deregulation, although the government has denied this.
The radical deregulation affects social worker visits, six-monthly reviews of the care of looked after children, independent scrutiny of children’s homes and the safeguards in place for babies and children being considered for adoption. It also affects disabled children in short breaks and children placed outside their home areas.
Over 50 organisations and several hundred care experienced people, social workers and others within the children’s social care sector have been pressing for children’s rights to be immediately reinstated, as has the Children’s Commissioner for England.
It was against this background that a statement from Children’s Minister Vicky Ford MP was published on Parliament’s website last night, which states that the majority of the changes will expire at the end of September. The Minister is due to “immediately” amend non-statutory guidance urging local authorities not to implement the majority of the regulatory changes introduced through Statutory Instrument 445.
Carolyne Willow, Article 39’s Director, said:
“Of course it’s a relief that the government has confirmed that most of these radical changes won’t survive into October, but that doesn’t help children in care today who are desperately vulnerable and need to have their legal protections given back to them. The Children’s Minister says she is going to tell local authorities not to apply the majority of the regulatory changes made overnight in April, when what she should have done is withdrawn them altogether. If there are a few uncontentious, temporary legal changes which are genuinely required to safeguard and promote the welfare of children during the pandemic, then government has the power to take such action.
“The evidence we are submitting to the High Court shows that the ongoing risks to children of maintaining the regulatory changes are very serious indeed. Obviously so long as Statutory Instrument 445 remains in place, it is impossible to properly hold local authorities to account for failing to meet legal duties which existed before 24 April.”
Oliver Studdert, partner at Irwin Mitchell, said:
“These regulations were rushed through based solely on private discussions between central government and local authorities and service providers and the impact of the virus on them, without any consideration of the views, and importantly, the needs of the vulnerable children whose safeguards have been removed. There is nothing in yesterday’s statement from the Minister which provides justification for keeping these regulations in place until 25 September.”
Article 39’s claim has three separate grounds:
- That the Department for Education failed to consult before making the changes to children’s legal protections;
- That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
- That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.
Notes
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 can be found here, and the Explanatory Memorandum here. The government’s Child’s Rights Impact Assessment is available here.
3. Article 39’s list of 65 lost or diluted safeguards is here.
4. The Parliamentary exchange on 22 April 2020 was between the Children’s Minister and a former Chair of the Local Government Association’s Children and Young People Board who is now a Conservative MP:
David Simmonds: Minister, coming back to this point about statutory duties, a review by the Department has found that some of [the] statutory duties are leading to local authorities having to undertake activities that are not useful or purposeful, in particular, some of the reviews that are required under the statutory duties—help by foster carers, prospective adopters, the children in the care system—are found not to have improved their experience. Is the Department learning, and will it learn, from the suspension of any of those statutory duties, to see where it has exposed the fact that they were not leading to purposeful activity, with a view to dispensing with those statutory duties and freeing people up to do more useful things in future?
Vicky Ford: That is exactly the point, David, about why we are laying in place the statutory instrument in order to implement flexibility on certain statutory duties. We are focused on giving that flexibility on the lower risk areas in order to make sure that the experts on the ground can be focused on what they need to do now.
5. Yesterday’s Written Ministerial Statement can be found here.
6. The High Court hearing on 27 and 28 July will be held remotely. Media representatives wishing to attend a remote hearing may contact the listing office at: administrativecourtoffice.listoffice@hmcts.x.gsi.gov.uk