Support the #Respect4SocialWork campaign today and celebrate the social work profession.
Make an Enquiry
Contact Us

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.”

Working Together For Children

Make an enquiry

A multi-disciplinary organisation providing independent, high quality social work, psychological, psychiatric, therapeutic and family support services. Contact us with your requirements and speak to a member of our team who will help you today.
Make an Enquiry

Children First

Sign up to receive our free monthly online resource covering the latest news and developments in the children’s services sector
Children First

Knowledge & Resources

Keep abreast of the latest news in the children's services sector.

A look back at 2022 with WillisPalmer's Head of Practice, Lucy Hopkins…

09/12/2022

2022 saw people trying to get back to some degree of normality following the Covid-19 lockdowns, restrictions and school closures that we had faced for the previous two years. However, the impact of Covid-19 continued and many services experienced, and continue to experience, backlogs and difficulties, including those services relating to children and families.

Social worker [...]

Read Full Story

John Lewis Christmas advert highlights important messages regarding foster care and looked after children

09/12/2022

Every year people are excited to see what the theme of the John Lewis & Partners Christmas advert will be. This year's advert reminded our Head of Practice, Lucy Hopkins, of all the times she arrived at the homes of foster carers with children or young people who were anxious, scared, worried and hungry, having just [...]

Read Full Story

The WillisPalmer Christmas Tree Decorating Competition 2022

09/12/2022
Who Wins..? You Decide!

We have two Christmas trees at the WillisPalmer office and this year the staff upstairs are going to compete with the staff downstairs to see who has the best decorated tree... and we want YOU to decide on the winner!

Tree 1 - Downstairs 

Tree [...]

Read Full Story
Children First is an online resource for professionals working with children presented by WillisPalmer, providing you with the latest news, features and interviews.
Subscribe Today

A Mackman Group collaboration - market research by Mackman Research | website design by Mackman

linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram