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Article 39 appeals High Court judicial review over secondary care legislation

Article 39’s appeal of the High Court ruling that the Education Secretary acted lawfully in failing to consult children and young people, the Children’s Commissioner for England and other children’s rights organisations before removing and diluting 65 safeguards for children in care will be heard by the Court of Appeal next week.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445) were laid on 23 April 2020, and came into force the next day.


Children’s rights charity Article 39 states that there was no public consultation ahead of the changes though the Department for Education started the process of reviewing all children’s social care regulations in February, and had private discussions – through meetings and email correspondence – with a number of local authorities and providers.

The High Court granted permission for Article 39’s challenge to the regulations on three separate grounds:

1) That the Department for Education failed to consult before making the changes to children’s legal protections

2) That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989

3) That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

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.

However, the judicial review found that the Department for Education did not act unlawfully by introducing secondary care legislation for social workers in response to COVID-19.


Article 39 said it was 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.

In a written statement of 14 July 2020, the Children's Minister, Vicky Ford, said that “the overwhelming majority of these regulations will expire as planned on 25 September”. The statement also noted that the regulations had been “rarely used and only in response to coronavirus”.

“The extraordinary measures the government has taken over the last few months means that we are now in a much better position to ease the restrictions that everyone has faced. Given the lower level of coronavirus now present, there is a significantly reduced need for local authorities and providers to use these flexibilities. I therefore intend to update guidance immediately to make it clear that there should no longer be a need to use most of these flexibilities and will be writing to local authorities and providers accordingly. Where they do use flexibilities, local authorities and providers should ensure that they have strong justification,” she added.

The government has since, however, said it seeks to extend the temporary regulations in certain areas such as in relation to virtual visits, the frequency of Ofsted inspections, and medical reports during the adoptions process following consultation. The government has said that any extensions would be made via a new Statutory Instrument which will be laid before the House 21 days before it comes into effect.

The Court of Appeal hearing is listed for Friday 4 September. In granting permission for the appeal, the Rt. Hon. Lady Justice Macur ordered: “This appeal has a real prospect of success on the basis that the Children’s Commissioner, at least, was not consulted for the reasons advanced in the grounds of appeal and skeleton argument, and/or there is a compelling reason why it should be heard in view of the judge’s expressed concerns as to the significance of the changes made in the Regulations and the impact upon a highly vulnerable group that would not be countenanced other than during present circumstances.”

The Regulations, in whole or in part, may not be discontinued on 25 September 2020 and this appeal therefore cannot be regarded as ‘academic’.


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