Category: Statutory instrument 445

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. 

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.

Article 39 threatens legal action over loss of legal protections for children in care

Children’s rights charity Article 39 has today (7 May) formally threatened legal action against the Department for Education, if it does not withdraw a statutory instrument which makes sweeping changes to safeguards for children in care in England.

The letter before action claims the government has acted unlawfully in its failure to consult on the changes and in not giving any time for Parliamentary scrutiny. The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 (statutory instrument 445) remove or weaken 65 children’s safeguards, without any evidence of their connection to the current serious health crisis. We focus our claim on six specific changes:

  • The dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory;
  • The removal of the duty to hold six-monthly reviews of children in care;
  • The loss of safeguards for children placed out of area with people who are not connected to them;
  • The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
  • The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
  • The dilution of the duty on children’s homes to ensure independent visits and reports on children’s welfare there.  

Article 39 is calling on the government to withdraw the statutory instrument with immediate effect and to give an assurance that any new regulations will be subject to proper consultation, Parliamentary scrutiny and children’s human rights and equality impact assessments.

Carolyne Willow, Article 39’s Director, said:

“This is an outrageous attack on safeguards which have been built up over 70 years, often in response to terrible failures to protect children.

“Legal action is always a last resort but we consider that this is the only way to ensure the rights of children in care are quickly reinstated. There is no obvious link between COVID-19 and the vast majority of the protections snatched away from vulnerable children. Indeed, since 2016 there have been three failed attempts by government to remove some of the most significant safeguards taken away this time – actions which were, in the past, strongly 
resisted by parliamentarians, care experienced people, social workers, children’s lawyers, charities and others.”

Oliver Studdert, partner at Irwin Mitchell, said:

“The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 remove a number of the essential protections put into place by law to safeguard children in the care system. The government should not use the COVID-19 crisis as an excuse to implement a large number of unnecessary and potentially dangerous changes to the way in which looked after children are supported. Many of the changes expose these children, who are some of the most vulnerable children in society, to additional risk. The regulations, which are widely opposed, have been rushed through without any meaningful attempt to consult, at a time where children in care are likely to be in need of greater levels of support.”

The government has been given 14 days to respond.

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

Support our campaign