Judgment awaited on duty to consult

Article 39’s case against the Secretary of State for Education’s removal and dilution of 65 safeguards for children in care was heard in the Court of Appeal today.

On 23 April 2020, The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445) were published without any form of public consultation or time given for Parliamentary debate. They came into force the very next day.

In the High Court last month, Mrs Justice Lieven found that Article 39 was correct to warn that vital safeguards for children in care were removed or diluted overnight in April. Department for Education officials had told Ministers these were simply “administrative burdens” and the Explanatory Memorandum published with the regulations had similarly claimed: “Most changes are procedural; easing administrative burdens”. The Child Rights Impact Assessment, completed after Ministers had signed off the deregulation, described them as “low risk changes”.

Mrs Justice Lieven stated:

I fully accept the Claimant’s submission that the children subject to these Regulations are particularly vulnerable. Many local authorities in the field do not manage to provide a good enough level of service and this leaves already very vulnerable children highly exposed to risk. When things do go wrong it can be catastrophic for the children involved. In those circumstances, the importance of having regular visits; senior officer oversight by nominated officers; some independence through independent reviewing officers and independent adoption panels cannot be overstated. These are not administrative burdens, or minor matters, they are fundamental parts of a scheme protecting vulnerable children. Each has been introduced over time precisely because of the risks that [looked after children] face and the need for safeguards to be in place. [76]

Despite the High Court rejecting the government narrative, the Education Secretary was found to have acted lawfully.

Today’s expedited hearing in the Court of Appeal focused on the government’s failure to consult organisations that would either directly or indirectly put forward the views and perspectives of children and young people, and advocate their rights and interests. Specific attention was given to the statutory body for children’s rights, the Children’s Commissioner for England.

Carolyne Willow, Article 39’s Director, said:

“The Education Secretary’s decision not to consult the Children’s Commissioner for England and affected children and young people – either directly or through organisations like Article 39 – sets a dangerous precedent, if it is found to be lawful. The whole purpose, in law and practice, of having a Children’s Commissioner is to ensure the rights, views and interests of children and young people are taken into account in critical decision-making like this. The Commissioner is duty-bound to have particular regard to the rights of children in care when carrying out her functions, so it’s unconscionable that she wouldn’t be consulted when Ministers are considering taking away and weakening safeguards for this group of children.

Let’s also remember that the UK ratified the United Nations Convention on the Rights of the Child nearly thirty years ago and this treaty gives children the right to be heard, and to have their views given due weight, in all matters affecting them. Surely we shouldn’t, in 2020, need to argue that children must be listened to – being in a global pandemic doesn’t change this fundamental right.”

Oliver Studdert, partner at Irwin Mitchell, said:

In bringing this appeal, Article 39 seeks to give a voice to the many vulnerable children who saw vital safeguards removed without being consulted. My client is asking the Court of Appeal to recognise that the government had a duty to consult the Children’s Commissioner, and representative bodies of children in care, and that its failure to do so renders the regulations unlawful.

Not only is this appeal of the utmost importance in ensuring that vulnerable children have a voice. It also raises very serious issues around the government’s ability to make decisions of such magnitude without considering the impact of those decisions of those directly affected. The Court of Appeal has indicated that it will be giving judgment as soon as possible.”

Article 39 seeks a declaration from the court that the Education Secretary acted unlawfully in making the regulations without consulting organisations representing the views, rights and interests of children and young people.

We are extremely grateful to our legal team, and to all those who have very kindly supported our crowdfunding appeal which will contribute to our legal costs and fees should we be unsuccessful in this legal challenge.

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.