Category: Children in care

High Court agrees that lost safeguards are fundamental to children’s protection, but finds that the Department for Education acted lawfully due to the pandemic

In a judgment handed down today (7 August), the High Court finds that Article 39 was correct to warn that vital safeguards for children in care were removed or diluted overnight in April. However, the Department for Education was not found to have acted unlawfully. Article 39 is now seeking an urgent appeal of the judgment focusing on the government’s failure to consult children, children’s rights organisations and the Children’s Commissioner for England.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament by the Children’s Minister Vicky Ford MP on 23 April, and came into force the very next day. There was no public consultation or time given for Parliamentary scrutiny. The 65 safeguards which were taken away or weakened affected social worker visits to England’s 78,000 children in care, six-monthly reviews of the care of looked after children, independent scrutiny of children’s homes and senior officer oversight for babies and children being considered for adoption. Disabled children having short breaks and children placed outside their home areas were also affected.

The Department for Education had insisted these were minor changes and simply involved the removal of administrative burdens rather than the watering down of core safeguards. Mrs Justice Lieven, who heard the expedited hearing last week, rejected the government’s description and concluded:

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]

Elsewhere in the judgment, Mrs Justice Lieven stated:

… I agree with the Claimant that these are not bureaucratic provisions that are a “burden” and as such can be set aside relatively lightly. 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. [48]

Despite recognising the risk to very vulnerable children, Mrs Justice Lieven found the Department for Education had acted lawfully. 

There were three grounds to Article 39’s claim – that the Department for Education failed to consult before making the changes to children’s legal protections; that the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989; and the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England. The judge dismissed all three grounds.

On consultation, the court was given no explanation as to why those organisations (predominantly local authorities and private providers) selected by the Department for Education to give their views on proposed deregulation were told to keep this private. The government first started reviewing children’s social care legislation in February and correspondence it has released shows it began sharing some of its proposals with selected organisations the following month.

During the first day of the hearing parts of an email from the Chief Social Worker for Children and Families, Isabelle Trowler, to a number of local authorities was read out by Article 39’s counsel, Jenni Richards QC. The email had stated, “Please do not distribute more widely for obvious reasons”.

Similarly, the court was told that a briefing sent to Ministers in early April, to gain sign-off for the deregulation, had advised that civil servants had “engaged with stakeholders on the proposals in confidence”. The same briefing told Ministers that only “minor changes” to children’s law were being proposed though civil servants anticipated that “some in the sector could view this as ‘watering down’ existing arrangements, particularly around safeguarding, at this critical time”. Mrs Justice Lieven said that Article 39’s counsel:

says, correctly, that the consultation was all with the providers of services, i.e. local authorities and private providers, and not with either children’s rights groups, the Children’s Commissioner, or children themselves. She also points out that the Department said that the consultation was confidential but has never explained why this was the case. [49]

Although Mrs Justice Lieven entirely accepted Article 39’s claim that children have their own views and interests, and she did not dispute that they have a separate right to be consulted, she did not accept that the interests of children were not taken into consideration:

I entirely accept the Claimant’s case as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children. There will in some cases be a conflict between the wishes and interests of providers and those of [looked after children]. However, that is not to say that the providers who were consulted were ignoring the need to protect the children and continue to seek to protect their welfare… This is not a situation where the interests of the children were simply not taken into consideration through the consultation. [82]

Mrs Justice Lieven found that Article 39 was entitled to argue that the Children’s Commissioner for England, the only statutory body promoting and protecting children’s rights and having specific legal responsibilities in respect of children in care, should have been consulted. The Department for Education denied it made a conscious decision not to consult the Children’s Commissioner yet gave no “very clear explanation” [83] as to why consultation didn’t take place. Despite this, Mrs Justice Lieven found the process had been lawful because of the pandemic:

In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted. [83]

The judge found that the coronavirus emergency legitimately prevented any form of consultation with children, children’s rights groups and the Children’s Commissioner:

In normal circumstances there can be no possible doubt that the Defendant would have had to ensure that he was consulting a range of people in order to ensure that he was getting a full answer to the question posed. In particular I have no doubt that in normal circumstances he would have been under a duty to consult the Children’s Commissioner whose very statutory purpose was to put forward the views of children and promote their welfare. [79]

Article 39 is deeply disappointed that the court found a total absence of consultation with children, children’s rights organisations and the statutory children’s rights body, the Children’s Commissioner for England, was lawful in the circumstances of the coronavirus pandemic. Carolyne Willow, Article 39’s Director, said:

“These were not split-second decisions the government had to make. The process of reviewing all children’s social care regulations started in February and it wasn’t until the third week of April that the final plans were laid before Parliament. Of course these were extraordinary times, and normal consultation processes couldn’t be expected, but not to have engaged at all with children and young people, and organisations which promote and protect their rights, makes no rational sense. There wasn’t even a government announcement that deregulation was being considered, and discussions that did take place were deliberately held in secret. This is no way to make national policy about very vulnerable children. The judge has been crystal clear in rejecting the government’s narrative that this whole process concerned minor, low risk changes to administrative burdens. The court accepted Article 39’s arguments about the significance of the safeguards, so this should surely have pointed to a greater need for a fair consultation process.

“We firmly reject the implication of this judgment which is that in times of emergency, despite having a period of two months to make decisions, the only voices government must listen to are public bodies and service providers. It is with a heavy heart, because we know the cost risk and the work involved for everyone, that we have instructed our legal team to seek an urgent appeal. We just cannot risk this judgment taking us back decades to a time of paternalism and worse, when children had no separate status and rights to be considered. One of the primary reasons the Children’s Commissioner post exists is to ensure children have a voice and presence in the corridors of power.

“Here we had a government department which considered and planned over a period of two months the radical deregulation of children’s safeguards and never once sought to hear the views of children themselves or the organisations solely representing their interests. Apart from anything else, what does this tell other government departments about the importance of children’s rights – the Home Office or the Department for Work and Pensions for example – when the Department for Education decided not to consult the Children’s Commissioner whose office pre-lockdown was just several floors down from Ministers?”

Oliver Studdert, partner at Irwin Mitchell, representing Article 39 said:

This is a very disappointing decision. In giving judgment, the judge recognised the importance of the safeguards which have been removed by the regulations as ‘fundamental parts of a scheme of protecting vulnerable children’. She also stated that she entirely accepts the Claimant’s case ‘as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children’. Despite this, the judge found the Secretary of State for Education’s failure to consult the Children’s Commissioner (who has vociferously opposed the regulations), children’s rights charities (many of whom are calling for the regulations to be scrapped) and those affected by the regulations to be lawful, because of the urgency caused by the pandemic. This is notwithstanding the fact that it was found that there was sufficient time to consult. Article 39 is seeking permission to appeal the judgment on this ground to the Court of Appeal.

Notes

  1. 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.
  2. The judgment can be read here.
  3. 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).
  4. The powers and duties of the Children’s Commissioner for England are set out in Part I of the Children Act 2004. The Commissioner’s specific obligations relating to children in care and care leavers (and others in regulated settings) were inserted into the legislation in 2014, when Ofsted’s Children’s Rights Director post was simultaneously deleted. That statutory post had been created in 2001 following serious and widespread abuse in the care system. When its functions moved to the Children’s Commissioner’s office, it was with the express policy intention that this role would now champion the rights and protection of vulnerable children in regulated settings.
  5. The Department for Education recently held a public consultation on allowing the vast majority of the regulatory changes to expire on 25 September. Following previous failed attempts to deregulate children’s social care – most notably in 2016/17 when Ministers sought to allow councils to opt out of their statutory duties for up to six years as a trial for removing them nationwide –  Article 39 feared that COVID-19 was being used as an excuse for radical deregulation, and that this expiry date would be extended beyond September. Official documents and Ministerial statements about Statutory Instrument 445 further contributed to this fear.
  6. Over 60 organisations and several hundred care experienced people, social workers and others are calling for Statutory Instrument 445 to be scrapped immediately. See the full list here.
  7. Article 39 is re-opening its crowdfunding page to help raise funds for our appeal. 

Give children in care their rights back, urges Article 39

Article 39 children’s rights charity will ask the High Court to reinstate legal protections for children in care when its case is heard on 27 and 28 July. Article 39’s request for the final hearing to be expedited was successful, recognising the vulnerability of children in care and the scale of the changes forced through overnight.

Without any public consultation or time given for Parliamentary scrutiny, the Department for Education removed or diluted 65 safeguards for children in care in England by laying a statutory instrument on 23 April. The changes took effect the very next day.

An expiry date of 25 September was set but an Explanatory Memorandum published alongside the regulatory changes said this end-date would be revoked in the event of the public emergency continuing. Similarly, the government’s child’s rights impact assessment said the time-period would be extended “should the public health emergency or its impact last longer”.

When giving evidence before Parliament’s Education Select Committee, the Children’s Minister further indicated that deregulation during COVID-19 could be a testing ground for permanent ‘relaxations’ of legal duties. This led Article 39 and others to suspect the government was reviving earlier failed attempts to deregulate children’s social care – most notably in 2016/17 when it tried to pass legislation which would have allowed councils to opt out of their statutory duties for up to six years as trials for countrywide deregulation, although the government has denied this.

The radical deregulation affects social worker visits, six-monthly reviews of the care of looked after children, independent scrutiny of children’s homes and the safeguards in place for babies and children being considered for adoption. It also affects disabled children in short breaks and children placed outside their home areas.

Over 50 organisations and several hundred care experienced people, social workers and others within the children’s social care sector have been pressing for children’s rights to be immediately reinstated, as has the Children’s Commissioner for England.

It was against this background that a statement from Children’s Minister Vicky Ford MP was published on Parliament’s website last night, which states that the majority of the changes will expire at the end of September. The Minister is due to “immediately” amend non-statutory guidance urging local authorities not to implement the majority of the regulatory changes introduced through Statutory Instrument 445.

Carolyne Willow, Article 39’s Director, said:

“Of course it’s a relief that the government has confirmed that most of these radical changes won’t survive into October, but that doesn’t help children in care today who are desperately vulnerable and need to have their legal protections given back to them. The Children’s Minister says she is going to tell local authorities not to apply the majority of the regulatory changes made overnight in April, when what she should have done is withdrawn them altogether. If there are a few uncontentious, temporary legal changes which are genuinely required to safeguard and promote the welfare of children during the pandemic, then government has the power to take such action.

“The evidence we are submitting to the High Court shows that the ongoing risks to children of maintaining the regulatory changes are very serious indeed. Obviously so long as Statutory Instrument 445 remains in place, it is impossible to properly hold local authorities to account for failing to meet legal duties which existed before 24 April.”

Oliver Studdert, partner at Irwin Mitchell, said:

“These regulations were rushed through based solely on private discussions between central government and local authorities and service providers and the impact of the virus on them, without any consideration of the views, and importantly, the needs of the vulnerable children whose safeguards have been removed. There is nothing in yesterday’s statement from the Minister which provides justification for keeping these regulations in place until 25 September.”

Article 39’s claim has three separate grounds:

  • That the Department for Education failed to consult before making the changes to children’s legal protections;
  • That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
  • That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

Notes

1.      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.

2.      Statutory Instrument 445 can be found here, and the Explanatory Memorandum here. The government’s Child’s Rights Impact Assessment is available here.

3.      Article 39’s list of 65 lost or diluted safeguards is here.

4.      The Parliamentary exchange on 22 April 2020 was between the Children’s Minister and a former Chair of the Local Government Association’s Children and Young People Board who is now a Conservative MP:

David Simmonds
: Minister, coming back to this point about statutory duties, a review by the Department has found that some of [the] statutory duties are leading to local authorities having to undertake activities that are not useful or purposeful, in particular, some of the reviews that are required under the statutory duties—help by foster carers, prospective adopters, the children in the care system—are found not to have improved their experience. Is the Department learning, and will it learn, from the suspension of any of those statutory duties, to see where it has exposed the fact that they were not leading to purposeful activity, with a view to dispensing with those statutory duties and freeing people up to do more useful things in future? 

Vicky Ford: That is exactly the point, David, about why we are laying in place the statutory instrument in order to implement flexibility on certain statutory duties. We are focused on giving that flexibility on the lower risk areas in order to make sure that the experts on the ground can be focused on what they need to do now.

5.    Yesterday’s Written Ministerial Statement can be found here.

6.   The High Court hearing on 27 and 28 July will be held remotely. Media representatives wishing to attend a remote hearing may contact the listing office at: administrativecourtoffice.listoffice@hmcts.x.gsi.gov.uk

Removal of safeguards for children in care – judicial review given go ahead

Article 39 children’s rights charity has been granted permission for a judicial review of the Department for Education’s removal and dilution of children’s legal protections pushed through overnight in April, under the guise of COVID-19. Given the seriousness of the legal changes, and the vulnerability of the affected children, Article 39 asked the court for the case to be expedited; this has also been agreed and the High Court hearing will take place on 27 and 28 July.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – also known as Statutory Instrument 445 – were laid before Parliament on 23 April and came into force the very next day. They make around 100 changes to 10 sets of children’s social care regulations, supposedly because of COVID-19 though none of the amendments specifically state that safeguards can be relaxed only due to the effects of the pandemic. 

Article 39 counts 65 losses or dilutions of safeguards for children in care, and children who could come into care – affecting many thousands of the most vulnerable children in our country. The safeguards affected include: social worker visits; reviews of children’s welfare in care; independent scrutiny of children’s homes, prospective adoptive parents and foster carers; and the process for placing children in care away from their home areas, including outside of England.

The High Court has granted permission for judicial review on three separate grounds:

  • That the Department for Education failed to consult before making the changes to children’s legal protections;
  • That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
  • That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

Carolyne Willow, Article 39’s Director, said:

“Children in care should be receiving the very best protections we can offer during this global pandemic. Families up and down the country have responded to these very frightening and uncertain times by changing their work and home routines to ensure their children’s needs are properly met. Removing legal protections from children in the care of the state inevitably puts them at great risk, and we know from past tragedies that too often children’s suffering goes hidden until it is too late and the harm has been done.

“Before the pandemic, at least half of local authorities were struggling to meet their statutory children’s social care duties – as judged by Ofsted – and councils have been saying for years that they are desperate for funds to meet the needs of children and families. Ministers should have been focused on ensuring local authorities had the financial support they needed to keep children in care safe and protected, rather than dismantling safeguards which their own statutory guidance states are vital and important.

“As a very small charity, any legal action we take to protect the rights of children involves financial risk and we are delighted the court has agreed to cap our costs should we lose the case.”

Oliver Studdert, partner at Irwin Mitchell, said:

This is a very important legal case which seeks to protect vulnerable children’s rights. In listing the case for a full hearing to be heard in just five weeks’ time, the High Court recognises the urgent and important nature of Article 39’s challenge. The Secretary of State did not comply with legal duties to consult with those most impacted by the significant and wide ranging changes which the Regulations introduced. The children and young people in our care system rely on the support of the local authority, who should care for them as a parent would care for their child. These are some of the most vulnerable people in society, yet these Regulations have removed essential safeguards which were previously deemed necessary to keep them safe. In a time of crisis where many children in the care system need more support, they are being given less.”

Permission was not granted on the fourth ground, relating to Parliamentary procedure and failure of the government to make time for Members of Parliament and Peers to scrutinise the changes prior to them coming into force.

The news comes days after a children’s rights campaigner, John Radoux, received a freedom of information (FOI) response from the Department for Education which stated that no organisations made any request for specific changes to the 10 sets of regulations. This is despite an official government document for Parliament (published in April, with the Regulations) stating that: “Key stakeholders across the children’s social care sector were consulted … [They] provided suggestions for suitable amendments and have subsequently been provided with further detail of the changes that are being made and have provided broad support”. On 5 May, the Education Secretary told Parliament: “On the regulations we have laid, we worked very closely with the ADCS – the Association of Directors of Children’s Services – on how we make sure we do everything we can to maintain the very best support for all children when they are in care. It and the sector have specifically asked us to make sure that some flexibilities are made available to them”. The FOI response also told Radoux it was impossible to give the start and end dates of the consultation which preceded the Regulations because “There was no formal consultation”.  

Notes

1.      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.

2.      Statutory instrument 445 – The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – can be found here. It is due to expire on 25 September 2020 “unless extended”. Several provisions will continue beyond this date, irrespective of the actions of Ministers.

3.      The Explanatory Memorandum laid before Parliament can be found here.

4.      Article 39’s summary of the 65 legal safeguards which were removed or diluted without any public consultation or Parliamentary scrutiny and debate can be found here. This includes the list of provisions which will continue even after Statutory Instrument 445 has expired.

5.      John Radoux has tweeted the response he received (on 24 June) to his freedom of information request to the Department for Education. It can be found here. The Education Secretary’s statement to Parliament on 5 May can be found here.

6.      On 10 June, the then Shadow Education Secretary Rebecca Long-Bailey MP led a motion to annul the Regulations, which was defeated by 260 to 123 votes. The Hansard transcript for that is here

We are raising funds to help cover our costs should we lose this case. Please donate if you can, and share with your family, friends and colleagues.

Safeguards for children in care – House of Commons

Parliament had its first debate yesterday on the dismantling of 65 safeguards for children in care in England. The changes to 10 sets of children’s social care regulations were brought in overnight in April (23/24 April) – seven weeks ago.

Members of Parliament voted 260 to 123 to retain the changes to children’s law. Carolyne Willow, Article 39’s Director, said:

“In the short time allotted to each speaker, the detail of what has been done to children’s safeguards, and the risks this exposes them to, was laid bare. The knowledge and passion of MPs who formerly worked in children’s social care was notable. 

“It was deeply frustrating that the Children’s Minister used so much of her speech to talk broadly about her department’s policy and actions in the face of COVID-19. This was the opportunity for the Minister to give precise information about why her department considered the global pandemic warranted a behind-closed-doors review of all children’s social care legislation, and why each of the safeguards had to be deleted or weakened. There was no such explanation. The repeated references to flexibilities, and the emphasis on primary legislation being untouched, is picking up where the government left off with the exemption clauses of 2016/17. That was when the Department for Education first sought to distinguish between core safeguarding duties, and other legal protections. It’s a false distinction which shows a lack of understanding of the law and how children’s social work has evolved since the 1940s.

“We always knew that the weight of the Commons favours the government, so any chance of reinstating children’s safeguards required Members of Parliament to vote against their party. That didn’t happen yesterday. Indeed, with the pandemic now making the voting process public, what we saw at times was an unedifying stream of grown adults, mostly white men, roaring ‘no’ into the microphone.” 

Background
There was no public consultation or time given to parliamentary scrutiny before the legislative changes. When the House of Lords Secondary Legislation Scrutiny Committee reviewed the changes, it concluded: “This instrument makes extensive changes to a very sensitive policy area”.

Ministers claim the legal changes were made in response to requests from ‘the sector’. However, correspondence disclosed by the Department for Education to Article 39 as part of our legal challenge shows that it was the government which decided to review “all relevant children’s social care regulations” and only after this point did it select a number of organisations and individuals to consult in haste and in private. Public denials that they had asked for changes were made by four of the five organisations named in the Explanatory Memorandum, in the days following the Statutory Instrument 445 coming into force:

Ofsted was the fifth organisation named as having been consulted by the Department for Education. It recently wrote in freedom of information responses: “We did not have sight of the regulations in draft form, nor were we aware what the final version would look like until the regulations were published”.

Examples of safeguards lost or diluted

  1. Social worker visits to children in care – can now be via a phone or video call, yet statutory timescales for such ‘visits’ have effectively been removed. Since 24 April, where a local authority is unable to visit within the statutory timescales, it must ensure visits take place “as soon as is reasonably practicable thereafter“. This has no legal precision, and removes a right that could be readily communicated to children in care. Moreover, there could be many reasons, entirely unrelated to COVID-19, why a local authority considers it is unable to meet the timescales. The duty to visit children in care has been in secondary legislation since 1946, following the manslaughter of 12 year-old Dennis O’Neill in foster care. It has been in primary legislation since 2008.
  2. Six-monthly independent reviews of a child’s care are no longer mandatory. This is another bedrock of children’s social work, introduced after the public inquiry into Dennis O’Neill’s death. Statutory guidance itself emphasises the importance of these reviews to safeguarding and promoting the child’s welfare, and it is often only through this process that children are able to express their own hopes and worries. Critically, it is also the statutory mechanism through which the local authority’s conduct is monitored by the child’s independent reviewing officer.
  3. Adoption agencies are no longer required to establish adoption panels. These panels provide vital checks and balances in the adoption process, providing advice on prospective adopters, ‘matching’ individual children with prospective adopters and critical matters such as post-adoption contact and post-adoption support.
  4. Fostering panels are no longer required. These provide a vital safeguard in approving the suitability of foster carers. The Chief Executive of the Nationwide Association of Fostering Providers has observed: “Where panels are effective and well run, they provide an important level of independent scrutiny for approving new foster carers and making changes for existing foster carers. If they’re not well run, someone in the agency needs to sort that out – it doesn’t make panels a bad idea”.
  5. Senior officer approval for placing children out of their home area is no longer required for any type of local authority foster care, including outside of England (before only connected people, or foster carers approved by the child’s local authority, were exempted from this senior officer scrutiny). At a time of grave concern about increasing rates of children being placed many miles from home, this is a seriously retrograde move.
  6. Senior officer approval is no longer required before placing a child (usually an infant or very young child) in a ‘fostering for adoption’ placement. Such decision-making goes to the heart of a child’s human rights (and the rights of their birth parents). Poor decision-making, lacking in sufficient rigour and scrutiny, at an early stage can have devastating consequences for carers too, should the family court not make a placement order authorising the child to be placed for adoption.
  7. Short breaks can last for 75 days without children having all of the safeguards provided by care planning, reviews and visiting duties. Prior to 24 April, these were provided to children in short breaks (most of whom are disabled) when a single placement lasted longer than 17 days. This followed longstanding concerns about the heightened risk of abuse among disabled children and disabled children’s disproportionate experience of living in institutional settings.
  8. The legal duty on fostering services to report criminal convictions has been diluted. Instead of being required to report the conviction to Ofsted “without delay”, from 24 April the reporting duty is “as soon as is reasonably practicable”.
  9. Children’s homes quality standards, designed to ‘raise the bar’, have been weakened with regard to knowledge, skills and experience of staff, as have monthly independent visits and reports through the use of caveats “as far as reasonably practicable” and “use reasonable endeavours”.
  10. Ofsted inspection frequencies have been deleted, including for children’s homes.

Permanent effects
There are provisions in the Regulations which outlive the expiry date, including any short break made since 24 April. Furthermore, decision-making in respect of individual children, particularly around adoption and out-of-area placements, is likely to have long-lasting if not permanent impact on children.

Achieving earlier goals
Even with an expiry date of 25 September 2020, we have cause to believe that, through these Regulations, the government has achieved the deregulation breakthrough it has been seeking for years.

In May 2016, a Bill (the Children and Social Work Bill) was published with clauses to facilitate local authorities opting-out of any of the children’s social care duties contained in Acts of Parliament or statutory instruments since 1933. This was for a maximum period of six years, and the intention was for these to be trials to test whether the legal protections could be removed altogether across all local authorities in England. There had been no Green or White Papers, and no other public consultation ahead of these clauses being introduced. We considered them to be a grave and unprecedented threat to child protection.

Peers voted in support of an amendment which removed the exemption clauses from the Bill in November 2016. Revised clauses were reinserted when the Bill reached the Commons. Amid widespread opposition – including from the Association of Lawyers for Children, The Law Society, the Family Law Bar Association and Resolution[1] – the Secretary of State for Education added her name to an amendment to delete the clauses in March 2017. They were formally removed from the Bill in April 2017.[2] A statement from the Department for Education explained: “We have listened to concerns … In recognition of this we are not taking forward that particular aspect of the Bill”.

The following year, the Department for Education published a ‘myth busting’ guide which claimed to correct misinterpretations of legal obligations. However, it contained many inaccuracies about the statutory framework. It was only withdrawn after Article 39 began legal proceedings, despite wide criticism among the children’s social care sector.

At least five of the most significant changes made through Statutory Instrument 445 were targets for the exemption clauses and/or the ‘myth busting’ guide: reducing social worker visits, loss of statutory reviews, changes to short break safeguards and foster and adoption panels no longer being mandatory. In addition:

READ THE FULL DEBATE HERE.


[1] These organisations wrote a joint letter to The Times, which concluded “We must not allow these clauses to pass into law” published 22 February 2017.

[2] After Royal Assent on 27 April 2017, the Bill became the Children and Social Work Act 2017.

[3] Question 24: https://committees.parliament.uk/oralevidence/299/pdf/

House of Commons debates the loss of children’s safeguards

On 10 June 2020, seven weeks after the government removed or diluted 65 safeguards for children in care without prior public consultation or time allowed for parliamentary scrutiny, the Labour Party led a vote against the radical changes.

Labour’s motion was to annul (withdraw) The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (Statutory Instrument 445).

  • 123 Members of Parliament supported Labour’s motion which would have reinstated the protections children in care had before 24 April 2020.
  • 260 Members of Parliament voted to keep the government’s changes.

You can read the debate here.

Article 39 has issued judicial proceedings against the Department for Education. Please donate to our legal fund if you can.