Court of Appeal to hear child safeguards legal challenge

Next week the Court of Appeal will hear Article 39’s appeal of a High Court ruling that the Education Secretary acted lawfully in failing to consult children and young people, the Children’s Commissioner for England and other children’s rights organisations before removing and diluting 65 safeguards for children in care.

This radical deregulation was achieved through The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445). The regulations were laid on 23 April 2020, and came into force the very next day.

There was no public consultation ahead of the changes though the Department for Education started the process of reviewing all children’s social care regulations in February, and had private discussions – through meetings and email correspondence – with a number of local authorities and providers.

The hearing is listed for Friday 4 September.

In granting permission for the appeal, the Rt. Hon. Lady Justice Macur ordered:

This appeal has a real prospect of success on the basis that the Children’s Commissioner, at least, was not consulted for the reasons advanced in the grounds of appeal and skeleton argument, and/or there is a compelling reason why it should be heard in view of the judge’s expressed concerns as to the significance of the changes made in the Regulations and the impact upon a highly vulnerable group that would not be countenanced other than during present circumstances.

The Regulations, in whole or in part, may not be discontinued on 25 September 2020 and this appeal therefore cannot be regarded as ‘academic’.

Statutory Instrument 445 can be read here, and our summary of the 65 lost/diluted safeguards is here.

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.

The High Court judgment can be read here.