The First-Tier Tribunal General Regulatory Chamber (Information Rights) has ruled that the Department for Education must release a report to Article 39, which analyses 48 separate incidents where children in care died or suffered serious harm (judgment here).
The report was produced by the Child Safeguarding Practice Review Panel, and shared with the Department for Education during judicial review proceedings in 2021/22 brought by Article 39 that challenged secondary legislation which, from September 2021, restricts the types of placements for children in care aged 15 and under, so that they can no longer be accommodated in properties not registered or inspected by Ofsted or the Care Quality Commission, or in properties where they receive no day-to-day care. The same protection was not provided for children in care aged 16 and 17.
A short summary of the Panel’s report, published in May 2021 (see below), led Article 39 to believe that its contents were highly relevant to policy development concerned with the safety and welfare of older children in care. The charity therefore sought the full report from the Department for Education via a freedom of information request in December 2021. The request was refused in February 2022, with the Department for Education stating that the Child Safeguarding Practice Review Panel had shared the report with it in confidence and disclosure would damage relationships between the Panel and government. The Information Commissioner backed this refusal in October 2022.
Article 39’s case was heard by tribunal Judge Stephen Roper, sitting with members Aimée Gasston and Paul Taylor, in May 2023. The tribunal found that section 36(2)(c) of the Freedom of Information Act 2000 – prejudice to the effective conduct of public affairs – was engaged, but that the public interest favours disclosure. The Department for Education has been ordered to provide Article 39 with the full report within 30 days of receiving the decision from the Information Commissioner, which has 28 days to send the decision. The Department for Education was also found to have breached section 10 of the Freedom of Information Act 2000 by not responding to Article 39’s request for information within 20 working days. Drawing on submissions made by Article 39, the tribunal’s judgment sets out a number of compelling public interest reasons for disclosure:
Article 39’s Director, Carolyne Willow, said:
“It is shameful that the Department for Education did everything it could to maintain secrecy over failures in the protection of children in care. As the lead government department for child protection, we should have been pushing at an open door. Instead, our small charity has had to invest considerable time and resources in seeking basic transparency. It was a spurious argument that the Child Safeguarding Practice Review Panel would stop sharing information with ministers and civil servants if this report is forced into the public domain. As the tribunal confirmed, the Panel’s very purpose is to advance child protection – that cannot be achieved by its members sitting on this report, or any other document, which could significantly improve learning and action to safeguard children.”
The tribunal found that it is “doubtful” that individual children could be identified in the report. However, the Department for Education has been permitted to make redactions to protect personal data, before handing over the report to Article 39. This is something the charity has positively supported throughout its efforts to obtain the report.
SUMMARY OF REPORT WHICH MUST BE PROVIDED TO ARTICLE 39 IN FULL
From an analysis of 48 incidents where children entered care “as a result of abuse or neglect”, the Panel found:
- “children were coming into care in adolescence having experienced long-term parental abuse and neglect, with significant trauma”
- “where adolescent children came into care owing to previous involvement in gang-related activities or criminal exploitation, these continued once in the care system”
- “historic trauma experienced by these children led to high incidence of risk-taking behaviour as perpetrators or victims, and self-harming behaviour”
- “high levels of placement breakdown occurred as a result, with children placed in emergency unregulated placements. Mental health and other support were disrupted”
Child Safeguarding Practice Review Panel, May 2021
In April 2022, Article 39 and 29 other organisations wrote to the Chair of the Child Safeguarding Practice Review Panel, Annie Hudson, asking her to publish the report. At the end of the following month, days after it published its national reviews into the deaths of two young children, Arthur Labinjo-Hughes and Star Hobson, the statutory child safeguarding body replied, stating that it would not publish its analysis since “the primary purpose was to the inform the Panel’s overall knowledge of incidents – the learning from which has been shared – and the work was not carried out with publication in mind”.
Read the tribunal judgment (12 September 2023) here.
Read the Information Commissioner’s decision notice (20 October 2022) here.
Read the correspondence between 30 organisations & the Child Safeguarding Practice Review Panel (April / May 2022) here.