Our legal work

Article 39 was registered with the Charity Commission in 2016, and started strategic litigation the following year. Below we summarise six cases we have either brought ourselves or intervened in.

  • High Court finds secondary legislation does not discriminate against 16 and 17 year-olds in care
  • First-tier tribunal finds that Ministry of Justice does not centrally hold information about why children have been inflicted with pain-inducing restraint techniques in prison
  • Court of Appeal ruled the Education Secretary had acted unlawfully in failing to consult the Children’s Commissioner and other children’s rights organisations before removing children’s safeguards
  • Escort companies no longer allowed to use pain-inducing restraint techniques on children
  • Withdrawal of inaccurate Department for Education ‘myth-busting’ guide
  • Local authorities’ duty of care towards children – our Supreme Court intervention

High Court finds secondary legislation does not discriminate against 16 and 17 year-olds in care (2022)

In March 2022, the High Court handed down its judgment on controversial secondary legislation which protects children in care aged 15 and under but not those aged 16 and 17. It rejected all three grounds of Article 39’s legal challenge: that the Education Secretary irrationally discriminated against 16 and 17 year-olds; that he did not fulfil his equality duties; and a consultation undertaken by the Department for Education was unfair.

The secondary legislation, in force from September 2021, bans local authorities from placing younger children in properties which are unregulated and don’t follow care standards. It does this by listing the types of settings in which children in care aged 15 and under can live, when they are not able to live with family members, foster carers or in children’s homes. Each of the settings in the secondary legislation guarantees care where children live, and they are registered and inspected by Ofsted or the Care Quality Commission, sometimes both.

However, 16 and 17 year-olds in care have not been given the same protection because the government believes their needs can be met in accommodation such as bedsits, flats, shared houses and hostels – where children receive a set number of hours of support a week but no day-to-day care or consistent supervision. When ministers made their decision over a third of children in care aged 16 and 17 – more than 6,000 at any one time – were living in this kind of accommodation. The Children’s Commissioner for England found that children were frequently living in these properties alongside adults who had recently left prison and/or were struggling with mental health difficulties or addiction. Twenty-nine children in care aged 16 and 17 have died in the past five years while living in accommodation officially deemed to be preparing them for ‘independence’.  

Article 39 has applied for permission for our case to be heard in the Court of Appeal.

First-tier tribunal finds that Ministry of Justice does not centrally hold information about why children have been inflicted with pain-inducing restraint techniques in prison (2020)

In December 2020, a First-tier Tribunal held that the Ministry of Justice had no duty under the Freedom of Information (FOI) Act 2000 to provide Article 39 with the reasons for the 260 uses of pain-inducing restraint in child prisons in 2017/18 because this information is not held centrally – despite the department’s child safeguarding policy stating that a) central data collection takes place and b) the use of pain-inducing techniques on detained children is subject to more robust scrutiny than other forms of restraint.

The Ministry of Justice had informed the Information Commissioner that it would take 85 hours to collate the information requested by Article 39 – which far exceeded the time exemption allowed in the FOI legislation.

In the tribunal, counsel for the Ministry of Justice insisted that there was no breach of the safeguarding policy “but understandably declined to go into detail because she did not have instructions on the way in which the policy is being complied with” [29].

Article 39’s Director, representing the charity at the tribunal, explained the history of unlawful restraint in child prisons and the restraint-related deaths of two boys, Gareth Myatt (aged 15) and Adam Rickwood (aged 14), in 2004. The judge acknowledged in his decision that “the implementation of the [child safeguarding] policy to avoid future tragic incidents is at the core of the charity’s aims” [30]. Our work to ensure children in prison are protected from inhuman and degrading treatment in prisons continues.

Court of Appeal ruled the Education Secretary had acted unlawfully in failing to consult the Children’s Commissioner and other children’s rights organisations before removing children’s safeguards (2020)

In November 2020, the Court of Appeal 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” [79] changes to legal protections for England’s 78,000 children in care (judgment here). 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. [86]

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]” [90].

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”[83], 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. [85]

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” [85]. 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” [77].

On 23 April 2021, marking one year since the coronavirus regulations were laid, we published two of our Director’s witness statements, which you can find here.

Escort companies no longer allowed to use pain-inducing restraint techniques on children (2020)

In August 2020, following our legal action, the Ministry of Justice confirmed that pain-inducing restraint had been removed from the core restraint syllabus for escort custody officers taking children to/from custody. The companies employing escort custody officers were instructed that these techniques must never be used when other approaches are possible. (In October 2019, the government announced GEOAmey and Serco have been contracted for 10 years to provide prisoner escort and custody services, which includes the escort of detained children).

Article 39 has always challenged pain-inducing restraint. The death of Adam Rickwood, aged just 14 years, after he was inflicted with the so-called ‘nose distraction’ in a Serco-run child prison in Durham, together with the testimony of other children, has been our driving force. 

In 2016, we discovered that escort custody officers were being trained to inflict pain as a form of restraint on children during their journeys to/from secure children’s homes. This was despite such techniques being banned in the secure children’s homes themselves. After corresponding with the government, we saw that legal action would be the only way to protect children.

We raised funds through a CrowdJustice appeal and our legal team started challenging the policy in August 2017, after which the Ministry of Justice undertook an internal review – concluding that the policy should remain unchanged. We kept up the pressure, and were then told a full review of pain-inducing restraint would take place. Lack of progress led us to apply for permission for judicial review in October 2018. The High Court stayed (paused) our application in January 2019 while a review was carried out by Charlie Taylor (then Chair of the Youth Justice Board though undertaking the review in a personal capacity), and Parliament’s Joint Committee on Human Rights completed an inquiry in child custody.

Charlie Taylor’s report was published in June 2020 and recommended that pain-inducing restraint be taken out of the main restraint syllabus, with techniques involving pain only ever being potentially available in very serious, emergency self-defence situations. The government accepted this recommendation – both in respect of children’s journeys to/from custody (our legal challenge) and child prisons generally.

But the government’s full written response gave no indication as to when children would be protected. In fact, it suggested there could be significant delay, saying:

As this represents a considerable change to the existing MMPR manual, sufficient time and resources will need to be allocated to ensure that the impact is fully researched and understood before any changes are implemented. 

Further correspondence from our lawyers followed. The Ministry of Justice was told we were preparing to return to court. Then, in August 2020, more than four years after we started challenging the policy – and a day before the 16th anniversary of Adam Rickwood dying – we heard the excellent news that pain-inducing techniques are no longer authorised as a form of restraint during children’s journeys to/from custody. We were also given a time-frame for their removal from child prisons. Our original legal action had also challenged the lack of legal protection around the use of force during children’s journeys to/from custody, and we are presently awaiting the outcome of our application for a judicial review in respect of that.

Withdrawal of inaccurate Department for Education ‘myth-busting’ guide (2019)

In March 2019, the Department for Education withdrew a controversial document about council duties to vulnerable children and young people, after Article 39 launched an application for judicial review. 

The so-called ‘myth busting’ guide advised local authorities that they were legally permitted to reduce and remove support from children in long-term foster care, children who run away or go missing from home or care, children who are remanded to custody and young people who have left care and are still living with their former foster carers. 

The then Children’s Minister Nadhim Zahawi claimed the document simply clarified council duties, but Article 39 and 49 other charities and social work experts warned in a joint letter (sent September 2018) that it contained numerous inaccuracies and risked vulnerable children and care leavers losing vital support. After this correspondence with the Minister failed to elicit any agreement to correct the errors, or even a meeting to discuss our collective concerns, Article 39 instructed lawyers to begin legal proceedings. This legal action led to the Department for Education withdrawing the document from circulation, and notifying local authorities of this fact. In a subsequent meeting with the Children’s Minister, Article 39 obtained an assurance that any plans to issue a similar document in future would follow a consultation process including children and young people who may be directly affected.

Local authorities’ duty of care towards children – our Supreme Court intervention (2019)

Article 39 and The Care Leavers’ Association obtained permission to intervene in CN v Poole, which was heard in the Supreme Court in July 2018.

We feared the wrong decision in this case could have prevented those who have experienced abuse in care and custodial settings from being able to seek legal redress and compensation.

We were delighted when, in June 2019, the Supreme Court restored the right of children and young people to sue for negligence where a local authority has failed to protect them from harm (judgment here). The ruling clarified that local authorities can be held to have a duty of care when they are carrying out their statutory child protection functions in respect of children for whom they have not previously accepted responsibility (by virtue of a care order for example). This has very important and welcome implications for children living in a variety of institutional settings and for care leavers.

Article 39 has longstanding concerns about the difficulties children in institutional settings face in reporting abuse, being believed and receiving care and support to help them recover from mistreatment.

We asked all English local authorities to provide us with information about allegations against staff working in institutional settings. Of those that provided detailed data – 34 councils – we found that only 24% of 1,389 allegations resulted in an official child protection investigation.

When councils undertake child protection investigations they are under a duty to listen to the child. They must consider taking action to safeguard or promote the child’s welfare. A child who has been abused or suffered some other trauma may need counselling, extra help with their education and/or changes within their living environment and daily care. If councils fail to act to protect a child from institutional abuse, this can have devastating and long-lasting consequences.

The Court of Appeal had dismissed an appeal, in December 2017, made on behalf of two individuals who, as young children, were subject to serious harassment and abuse from a family that lived close to their home.

The children were cared for by their mother. Their accommodation had been arranged by Poole housing authority, which was aware of their neighbours’ persistent anti-social behaviour.

CN has severe physical and learning difficulties. When he was aged 9, he tried to take his own life because of the serious abuse he suffered from the nearby family.

The Court of Appeal rejected arguments that Poole Borough Council should have used its Children Act 1989 powers to protect the young brothers from harm, perhaps even by temporarily moving them from their mother’s care. But the court went much further. It decided that local authorities could no longer be held liable for negligence when a child has suffered harm due to their failure to act. Such claims had been possible since 2003. That is why the Supreme Court’s ruling was so significant.