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Charity Article 39 takes DfE to High Court over secondary legislation

A children’s rights charity has applied to the High Court for a judicial review of changes made by the Department of Education around social workers’ statutory duties to children in care.

Article 39, represented by Oliver Studdert from Irwin Mitchell, Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers, says the secondary legislation introduced in response to the COVID-19 pandemic was introduced without public consultation or parliamentary scrutiny.

Carolyne Willow, Article 39’s Director, said: “It comes to something when a small charity has to take the government to court to reinstate safeguards for children in the care of the state. Local authorities have parental responsibility for three-quarters of the children affected by this radical deregulation.
The legal protections snatched away were carefully built up from the 1940s onwards, and the government’s actions are dangerous. Its own statutory guidance explains in fine detail why children need the safeguards now gone. They were the culmination of decades of children’s experiences, testimony, learning and positive social work development. Terrible failures to protect children are also a significant part of that history.”

The Statutory Instrument 445 was laid before Parliament on 23 April 2020 and Article 39 said this was the first public announcement of government plans to make around 100 changes to 10 sets of children’s social care regulations, which came into force the very next day, on 24 April 2020, affecting many thousands of vulnerable children.

The charity said it can count 65 separate removals or dilutions of children’s legal protections affecting children in care, and children who could come into care in England.

Article 39 threatened legal action last month. The charity now says the grounds for legal challenge concentrate on six areas of policy in particular:

1) The dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory;

2) The removal of the duty to hold six-monthly reviews of children in care;

3) The loss of safeguards for children placed out of their home area with people who are not connected to them;

4) The loss of safeguards in relation to short breaks, particularly affecting disabled children;

5) The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and

6) The dilution of the duty on children’s homes to ensure that an independent person visits each month and reports on children’s welfare there.

A statement from the charity said: “Article 39 is seeking a court order quashing Statutory Instrument 445. We contend that the changes to children’s legal protections are a disproportionate response to the Covid-19 crisis and significantly increase the level of risk to many children who are already exceptionally vulnerable. These changes were rushed through without the opportunity for any parliamentary scrutiny, and with no meaningful consultation. They are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989. We believe the Secretary of State for Education breached his statutory duty to consider the need to promote the welfare of children when laying the statutory instrument, required by the Children and Young Persons Act 2008.”

According to the charity, ministers have claimed the 65 changes were made in response to requests from ‘the sector’. However, correspondence recently disclosed by the Department for Education 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.

Carolyne Willow added: “Ministers have claimed people working in children’s social care asked for these extensive legal changes, but documents released to us show this was driven by central government and deliberately kept secret. Civil servants briefed Ministers that some may view their actions as watering down children’s safeguards, and said robust media responses were being prepared accordingly. Ministers were advised to announce a wider package of support to coincide with the changes to children’s law.

“No consultation occurred with children and young people affected by the government’s actions, and the Children’s Commissioner for England, who is required by law to promote and protect the rights of children, especially those in care, was only informed of the plans after they had been approved by the Children’s Minister. Children’s invisibility in the corridors of power is one of the principal reasons they have their own statutory body to champion their interests, so not properly involving the Commissioner adds insult to injury,” she added.

Indeed, the children’s commissioner for England, Anne Longfield, urged the secondary legislation to be revoked, saying: “I would like to see all the regulations revoked, as I do not believe that there is sufficient justification to introduce them. This crisis must not remove protections from extremely vulnerable children, particularly as they are even more vulnerable at this time. As an urgent priority it is essential that the most concerning changes detailed above are reversed.”

Furthermore, Labour leader Keir Starmer tabled an early day motion urging the secondary legislation to be abolished.

Oliver Studdert, partner at Irwin Mitchell, concluded “These Regulations were rushed through with little, if any, attempt to consider the views of those most impacted by the significant and wide-ranging changes which they introduced – children and young people in our care system. These are some of the most vulnerable people in society. They rely on the state to keep them safe, yet these Regulations remove essential safeguards and expose them to risk. In bringing this claim and challenging the lawfulness of the Regulations, Article 39 is giving them a voice.”

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