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Judicial Review: DfE did not act unlawfully by introducing secondary care legislation

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

Children’s rights charity Article 39 was granted a judicial review of regulations 445 after the charity said The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 which were introduced on 24 April 2020 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.

The High Court granted permission for the 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.

However, on the issue of consultation, Mrs Justice Lieven, who heard the expedited hearing, found that the coronavirus emergency legitimately prevented any form of consultation with children, children’s rights groups and the Children’s Commissioner. She said: “In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted. However, given the very particular focus of what the Defendant had to decide in amending the 2020 Regulations, the extreme urgency and the scale of the issues facing the Defendant in March-April 2020, I do not think there was an error of law in not consulting either the Commissioner or the Claimant.”

With regards to the regulations being contrary to the purpose of primary legislation, Mrs Justice Lieven added: “In the face of a major crisis in the whole system of children’s social care services because of the large scale staff shortages feared, if flexibility had not been introduced then the risks to the LACs could have been much greater than the risks from the amendments introduced by the 2020 Regulations. The amendments were considered by the Defendant to be an important way of protecting the welfare of the children in the circumstances of the time. The fact that the flexibility introduced was to important safeguards does not mean that the flexibility was not itself protecting the children. 85.

“The Claimant, and many others, disagree with the balance that the Defendant struck but that does not mean that that balance is unlawful. The 2020 Regulations were intended by the Defendant to promote the purpose of the legislation, namely the promotion of the welfare of LACs, and the way that the Defendant sought to do it was not irrational.”

In terms of point three, Mrs Justice Lieven said: “The very reason the Defendant was promoting these 2020 Regulations was to protect LACs who were at risk because of the consequences of the pandemic. There is no inconsistency in the Defendant promoting regulations which lessen the protection of LACs by introducing flexibilities in the context of a pandemic which poses much greater risks to those children if there are no flexibilities. 88. I understand the Claimant’s concern that in different circumstances the Defendant might have sought to introduce similar flexibilities in order to reduce the protection of LACs. However, that is to ignore the very particular challenge faced by the Defendant in the children’s social care sector in Spring 2020. 89. In that context the Defendant did take into consideration the section 7 duty and I reject Ground Three.”

The 65 safeguards which were diluted included social worker visits to England’s 78,000 children in care, six-monthly reviews of the care of looked after children, independent scrutiny of children’s homes and senior officer oversight for babies and children being considered for adoption. Disabled children having short breaks and children placed outside their home areas were also affected.

The Department for Education had insisted these were minor changes and simply involved the removal of administrative burdens rather than the watering down of core safeguards.

However, Mrs Justice Lieven rejected the government’s description saying: “I fully accept the Claimant’s submission that the children subject to these Regulations are particularly vulnerable. Many local authorities in the field do not manage to provide a good enough level of service and this leaves already very vulnerable children highly exposed to risk. When things do go wrong it can be catastrophic for the children involved. In those circumstances, the importance of having regular visits; senior officer oversight by nominated officers; some independence through independent reviewing officers and independent adoption panels cannot be overstated. These are not administrative burdens, or minor matters, they are fundamental parts of a scheme protecting vulnerable children. Each has been introduced over time precisely because of the risks that [looked after children] face and the need for safeguards to be in place.”

While Article 39 was correct to warn that vital safeguards for children in care were removed or diluted overnight in April, the Department for Education was not found to have acted unlawfully.

Article 39 is 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.
There wasn’t even a government announcement that deregulation was being considered, and discussions that did take place were deliberately held in secret. This is no way to make national policy about very vulnerable children. The judge has been crystal clear in rejecting the government’s narrative that this whole process concerned minor, low risk changes to administrative burdens. The court accepted Article 39’s arguments about the significance of the safeguards, so this should surely have pointed to a greater need for a fair consultation process.

“We firmly reject the implication of this judgment which is that in times of emergency, despite having a period of two months to make decisions, the only voices government must listen to are public bodies and service providers. It is with a heavy heart, because we know the cost risk and the work involved for everyone, that we have instructed our legal team to seek an urgent appeal. We just cannot risk this judgment taking us back decades to a time of paternalism and worse, when children had no separate status and rights to be considered. One of the primary reasons the Children’s Commissioner post exists is to ensure children have a voice and presence in the corridors of power.

“Here we had a government department which considered and planned over a period of two months the radical deregulation of children’s safeguards and never once sought to hear the views of children themselves or the organisations solely representing their interests. Apart from anything else, what does this tell other government departments about the importance of children’s rights – the Home Office or the Department for Work and Pensions for example – when the Department for Education decided not to consult the Children’s Commissioner whose office pre-lockdown was just several floors down from Ministers?”

Article 39 is now seeking an urgent appeal of the judgment focusing on the government’s failure to consult children, children’s rights organisations and the Children’s Commissioner for England.

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 judgement is available here.

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