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Charity granted permission for judicial review over secondary legislation

Article 39 has been granted permission for a judicial review of changes made to legislation surrounding children in care which were made in response to the COVID-19 crisis.

The children’s rights charity threatened the Department for Education with legal action over changes made to the legislation saying it made 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 the country.

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.”

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – also known as Statutory Instrument 445 – made were laid before Parliament on 23 April and came into force the very next day and make around 100 changes to 10 sets of children’s social care regulations. The government said the changes were made in response to 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 (happen sooner rather than later) and this has also been agreed. The High Court hearing will take place on 27 and 28 July.

The High Court has granted permission for judicial review 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.

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. 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.”

The judicial review was granted just 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”.

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