In a judgment given today (24 November), the Court of Appeal has unanimously declared that the Secretary of State for Education, Gavin Williamson, acted unlawfully in failing to consult the Children’s Commissioner for England and other children’s rights organisations before making “substantial and wide-ranging”  changes to legal protections for England’s 78,000 children in care. Giving the leading judgment, Lord Justice Baker, with whom Lord Justice Henderson and Lord Justice Underhill agreed, found:
It was manifestly in the interests of the vulnerable children who would be most affected by the proposed amendments that those agencies and organisations representing the rights and interests of children in care should be consulted. 
Allowing the appeal, the judges granted a declaration “that the Secretary of State acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the [legal changes]” .
In his judgment, Lord Justice Baker accepted the submission, made by Jenni Richards QC on behalf of children’s rights charity Article 39, that the Department for Education had consulted “on an entirely one-sided basis and excluded those most directly affected by the changes”. Had children’s rights organisations “been included, the Secretary of State would have unquestionably been better informed about the impact of the proposed amendments on the vulnerable children most affected by them” , he added.
Article 39 launched the legal challenge after the government removed and watered down 65 safeguards for children in care in England, through The Adoption and Children (Coronavirus) (Amendment) Regulations 2020. Parliament was given no time to debate the changes; the Regulations were introduced on 23 April and came into force the very next day.
The safeguards lost or diluted by the Regulations included timescales for social worker visits to children in care, six-monthly reviews of children’s welfare, independent scrutiny of children’s homes and senior officer oversight of adoption decision-making for babies and children. The protections in place for disabled children having short breaks and children in care sent many miles away from home were also affected.
After starting to review children’s legislation in February, officials in the Department for Education, including the Chief Social Worker for Children and Families, had private email, telephone and face-to-face exchanges with a number of local authorities, adoption agencies, private providers and local government bodies during March and April.
The views of children and young people in care, or organisations representing their rights, views and interests, were not sought. The statutory body for children’s rights, the Children’s Commissioner for England, was informed of the changes to children’s legal protections in mid-April, after they had been signed off by Ministers.
Lord Justice Baker stated:
I can find nothing about the circumstances that existed in March 2020 to justify the Secretary of State’s decision (if indeed any conscious decision was made) to exclude the Children’s Commissioner and other bodies representing the rights of children in care from the consultation on which he embarked. He decided to undertake a rapid informal consultation, substantially by email. In the circumstances, it was plainly appropriate for the consultation to be conducted in that fashion, rather than a more formal, drawn-out process. But having decided to undertake the consultation, there was no good reason why that process should not have included the Children’s Commissioner and the other bodies. On the contrary, there were very good reasons why they should have been included. 
In the High Court, Mrs Justice Lieven had rejected the government’s characterisation (in written material) of these being “minor changes” and the simple removal of “bureaucratic burdens”. She said, “Regular visits to children, oversight by more senior officers over decision making and provision for independent scrutiny are critical safeguards to protect deeply vulnerable children in a field where errors happen with sad frequency and the consequences can be devastating”. However, it was Mrs Justice Lieven’s finding that the Education Secretary had not acted unlawfully in failing to consult organisations representing the rights, views and interests of children in care which Article 39 appealed. That has now been overturned by the Court of Appeal.
Lord Justice Baker said it was “potentially misleading” for the government to claim their actions were “broadly endorsed by the sector”, since “The “sector” plainly included not merely local authorities and service providers but also all those engaged or involved with children’s social care, including those bodies whose focus was on children’s rights” . Further, “the fact that the Secretary of State was facing difficult decisions about whether and, if so, how to modify services made it important that he should receive as wide a range of advice as possible” .
Carolyne Willow, Article 39’s Director, said:
“I am hugely relieved and overjoyed that the Court of Appeal has confirmed that children and young people, and the organisations who represent their rights and interests, must be consulted when the government is considering changes to their legal rights and protections. This should draw to a close backroom, secret government consultations which exclude the rights, views and experiences of children and young people. As Lord Justice Baker has so powerfully communicated, it was precisely this perspective which the Secretary of State needed before embarking on any legislative change.
“The government’s actions were shameful, both in the scale of the protections they took away from very vulnerable children in England and the way they went about it. Many hundreds of care experienced people, social workers, children’s lawyers and others working in social care could see straightaway what was so dangerous about these changes. But it was too late by then; they had already come into force and Ministers refused to budge.
“We are extremely grateful to our brilliant legal team who worked at speed throughout the first lockdown and with utter devotion to the children and young people at the heart of this case. As a very small charity, this challenge would not have been possible without hundreds of kind donations from very committed individuals and organisations. This has definitely been a huge team effort. Today we celebrate children’s rights and the vital importance of judicial review in holding government to account for its obligations to children and young people.”
Oliver Studdert, partner at Irwin Mitchell, representing Article 39 said:
“This is a huge victory for children’s rights and is evidence that the law can be used to hold the government to account. The changes made by the Secretary of State in April of this year removed key safeguards for children and young people in care with potentially devastating consequences. This judgment ensures that vulnerable children have a voice when decisions are made which affect them. The Court of Appeal has unequivocally recognised the fundamental importance of ensuring that not only the Children’s Commissioner, but crucially also those who represent the rights of children in the care system, are consulted in relation to important decisions about them. The fact that we are in the middle of a global pandemic did not and does not give the government the right to make decisions without taking the views of those affected into account.”
- Lord Justice Baker was sitting with Lord Justice Underhill (Vice President of the Court of Appeal, Civil Division) and Lord Justice Henderson. The case was heard on 4 September 2020. The Court’s judgment was unanimous.
- 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 judgment can be read here.
- The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 is known as Statutory Instrument 445 (the 445th statutory instrument to be laid before Parliament in 2020).
- The powers and duties of the Children’s Commissioner for England are set out in Part I of the Children Act 2004.
- Over 60 organisations and several hundred care experienced people, social workers and others were part of a national campaign to scrap Statutory Instrument 445. See the full list here.