The Adoption and Children (Coronavirus) (Amendment) Regulations 2020* – legal challenge update

*Known as Statutory Instrument 445

On 21 August, Article 39 was granted permission to take its legal challenge over Statutory Instrument 445 to the Court of Appeal. In granting permission, the Rt. Hon. Lady Justice Macur said our appeal “has a real prospect of success on the basis that the Children’s Commissioner, at least, was not consulted…”.

The Department for Education opposed our application for a costs cap which the court can grant in order to limit our exposure to costs in the event that we are unsuccessful.

Article 39 is a very small children’s rights charity. We have three members of staff, only one of whom is full-time.

We have been bowled over by the generosity of individuals who have donated to our CrowdJustice appeal. But that was never intended to meet all of our costs.

Yesterday afternoon (2 September) we heard that the Court of Appeal has agreed a costs cap. This was a huge relief. It has been a very worrying time for us. 

Unfortunately, the costs cap agreed is £10,000 plus VAT rather than the £3,000 plus VAT we requested. This adds several thousands to the cost risk Article 39 was already facing in continuing this legal challenge.

The High Court agreed with us that the legal protections taken away or weakened overnight in April are important child safeguards, not minor changes or administrative burdens. However, the judge found that the Education Secretary did not act unlawfully in failing to consult children and young people, the Children’s Commissioner for England and other children’s rights organisations, including Article 39.

We remain convinced that the Department for Education had sufficient time and opportunity to undertake some form of public consultation, and to seek the views of the Children’s Commissioner – our country’s statutory children’s rights body. Private and confidential exchanges took place between the Department for Education and local authorities and providers.

We fear the High Court judgment could be used to justify side-stepping the Children’s Commissioner and public consultation in other circumstances.

Last Friday, the Education Secretary made new regulations which extend the suspension of timescales for Ofsted inspections of children’s homes and other settings to 31 March 2021. We oppose this deregulation. In the same regulations, provision was made to allow virtual contact / visits when face-to-face visits are not possible due to COVID-19, and to allow fostering and adoption approval processes to continue while awaiting medical information. These provisions similarly extend to March 2021. We have never objected to regulatory changes which are genuinely connected to COVID-19. Had there been a public consultation before Statutory Instrument 445 was made, we would have set out the serious risks to children and strongly advised proportionate changes and for COVID-19 to be written into the regulations. That the Department for Education has made these revisions after our legal challenge, and the strong opposition from many organisations and social care experts, including care experienced people, shows the value of open and transparent policy-making.

Thank you to everyone who has helped us so far – your support has been phenomenal. Our fundraising continues. Every donation really does count in helping to reduce the increased financial risk we now face. Should we succeed in the Court of Appeal, all of the funds raised will be held together and only used for similar children’s rights litigation in future.

Carolyne Willow
Article 39 Director