It is with great pleasure and a real sense of victory that we dedicate the last issue of our 2020 children’s rights legal digests to our own Court of Appeal win – Article 39 v. Secretary of State for Education. The Court of Appeal found the Secretary of State for Education to have acted unlawfully in removing safeguards for children in care by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020, known as Statutory Instrument 445. In particular, we take a closer look at how the unfulfilled legal duty to consult arose in both statute and common law.
Secretary of State for Education acted unlawfully in removing safeguards for children in care
SI445 brought into force, overnight and without time given for parliamentary or public scrutiny, more than 100 changes to 10 sets of children’s social care regulations. The changes introduced by SI445 included the removal of the requirement for social workers to visit children in care every six weeks and for the welfare of children in care to be independently reviewed every six months, the removal of the requirement for independent visits to children’s homes every month and other changes affecting children being considered for adoption, children in foster placements and disabled children. Article 39 counted 65 lost or diluted safeguards. While no public consultation took place, the Department for Education “engaged with stakeholders on the proposals in confidence”, conducting an informal consultation with Regional Adoption Agencies, Ofsted, the Association of Directors of Children’s Services, the Local Government Association, Principal Social Workers and “Practice Leaders”. The Children’s Commissioner was informed about the plans but not consulted; this took place after the changes had received Ministerial sign-off.
The Department for Education’s actions were challenged by Article 39 in the High Court via a judicial review – a type of court proceeding in which a High Court judge reviews the lawfulness of a decision or action made by a public body. The case was dismissed because the judge ruled that the circumstances created by the pandemic were such that departure from usual practice (that is, consulting a range of people and bodies) was justified.
This decision was appealed by Article 39. The appeal focused on amendments to three sets of regulations in particular: the Adoption Agencies Regulations 2005; the Care Planning, Placement and Case Review (England) Regulations 2010; and the Children’s Homes (England) Regulations 2015. The key question explored by the Court of Appeal was whether the Secretary of State acted unlawfully in failing to consult bodies representing children in care, including the Children’s Commissioner for England, before introducing SI445.
Giving the leading judgment, Lord Justice Baker summarised existing case law as it relates to the duty to consult. There are four types of circumstances where a duty to consult would arise:
- If consultation is required in statute (primary legislation – a statutory duty);
- If a promise of consultation has been made;
- If there is “an established practice of consultation”; or
- If failure to consult would lead to “conspicuous unfairness”.
Furthermore, in line with existing case law, it is not only significant whether a consultation is carried out but also how and for what purpose. Where a decision is reached that a consultation should take place, this should be conducted “properly and fairly”.
In relation to SI445, the Court concluded that the Secretary of State was indeed under a duty to consult not just the Children’s Commissioner but also other bodies representing children’s rights and that this duty arose in three distinct ways.
- Requirement in statute (primary legislation): Some of the regulations amended by SI445 (namely, the Children’s Homes (England) Regulations 2015) were made under authority of the Care Standards Act 2000. Section 22(9) of the Care Standards Act 2000 requires the relevant Minister to consult “any persons he considers appropriate” either if new regulations are made under the Act or if changes are made to existing regulations that substantially change the existing provisions. The Court concluded that even though the requirement to consult set out in primary legislation is not absolute, the manner in which the Secretary of State chose to consult on SI445 was “irrational” because it was conducted “on an entirely one-sided basis and excluded those most directly affected by the changes”.
- Established practice: There is an established practice of consulting the Children’s Commissioner and other bodies representing children’s rights when significant changes to regulations are being made. For instance, before the introduction of the Children’s Homes (England) Regulations 2015, broad-based public consultation was carried out.
- Conspicuous unfairness: Because the changes introduced under SI445 impacted “very vulnerable children in the care system”, it was the Court’s conclusion that failure to consult those organisations that represent the rights of children in care amounted to obvious (“conspicuous”) unfairness. The Court could not find a reason that would explain why the Secretary of State would not engage in any kind of consultation, even a “rapid informal” one.
The Court also invoked the statutory responsibility of the Children’s Commissioner “to promote and protect the rights of children in England, and to consider the potential effect of government policy proposals and government proposals for legislation on children, particularly those children living away from home receiving social care” (Section 2, Children Act 2004).
You can read the full judgment here: Article 39, R (On the Application Of) v Secretary of State for Education  EWCA Civ 1577 (24 November 2020) and our media release, which contains important paragraphs from the judgment.
Case law and its importance in defending children’s rights
Case law, or common law, unlike primary or secondary legislation, is created by the courts. Case law requires judges to take into consideration earlier court decisions made in similar or relevant cases. Case law is not static: it evolves continuously as courts can reach decisions that either follow or override earlier decisions, creating ‘new’ rules (precedents) which must be considered in future cases.
Article 39’s Court of Appeal case illustrates this well. When considering whether the Secretary of State was under a duty to consult, the Court of Appeal considered a range of previous judgments that have, over time, clarified both the duty to consult itself and the parameters of consultations. As reminded by Lord Justice Baker in his judgment, “the case law is clear that, whether or not a consultation is a legal requirement, if it is embarked on it must be carried out properly and fairly”.
The significance of Article 39’s Court of Appeal win is that it strengthens legal protections for all children in care by affirming, in common law, the legal requirement to consult the statutory body for children’s rights in England – the Children’s Commissioner – and those representing the rights of children in care when making any significant changes to law that impact on their rights and entitlements. Further, these obligations continue even in the context of a global pandemic.
To read more about case law and how it forms a part of the children’s rights legal framework in England, read our resource – ‘Protecting children’s rights through the law’.