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Education secretary acted unlawfully by failing to consult over care legislation during COVID

Education secretary Gavin Williamson acted unlawfully by failing to consult with children’s rights organisations ahead of introducing changes to legal protections for children in care, the Court of Appeal has ruled.

Gavin Williamson acted unlawfully by failing to consult the Children’s Commissioner for England and other children’s rights organisations before making “substantial and wide-ranging” changes to legal protections for England’s 78,000 children in care.

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,” he added.

Giving the leading judgment, Lord Justice Baker, sitting alongside Lord Justice Henderson and Lord Justice Underhill who agreed, found that 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.

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.”

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. The Regulations were introduced on 23 April and came into force the very next day, meaning there was no time for Parliament to debate the changes.

The safeguards lost or diluted 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.

Article 39 launched a judicial review over the amendments but this ruled that the DfE had not acted unlawfully .

Article 39 then appealed to the Court of Appeal and the response emerged today.

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.

Carolyne Willow, Article 39’s Director, said: “I am hugely relieved and overjoyed that the Court of Appeal has confirmed that children and young people, and the organisations who represent their rights and interests, must be consulted when the government is considering changes to their legal rights and protections. This should draw to a close backroom, secret government consultations which exclude the rights, views and experiences of children and young people. As Lord Justice Baker has so powerfully communicated, it was precisely this perspective which the Secretary of State needed before embarking on any legislative change.

“The government’s actions were shameful, both in the scale of the protections they took away from very vulnerable children in England and the way they went about it. Many hundreds of care experienced people, social workers, children’s lawyers and others working in social care could see straightaway what was so dangerous about these changes. But it was too late by then; they had already come into force and Ministers refused to budge.

“We are extremely grateful to our brilliant legal team who worked at speed throughout the first lockdown and with utter devotion to the children and young people at the heart of this case. As a very small charity, this challenge would not have been possible without hundreds of kind donations from very committed individuals and organisations. This has definitely been a huge team effort. Today we celebrate children’s rights and the vital importance of judicial review in holding government to account for its obligations to children and young people,” she concluded.

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.

The judgment can be read here.

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