A legal bid to scrap the government’s removal of several duties in relation to children in care goes to the Court of Appeal next week, after the charity behind it was granted a fast-track challenge.
Earlier this month, Article 39 lost a High Court challenge against the Department for Education’s decision, in April, to bring in the changes, on a temporary basis though without parliamentary scrutiny, in order to help councils and providers manage the impact of the coronavirus pandemic.
This was despite the judge in the case, Mrs Justice Lieven, heavily criticising the DfE for its failure to consult the Children’s Commissioner for England before issuing the statutory instrument that brought in the changes. She said she woudl have likely ruled it unlawful but for it being “a national crisis of such urgency”.
But now, the charity has been granted an expedited appeal – which will be heard next Friday (4 September) – on the grounds that the DfE’s failure to consult children, children’s rights organisations and the commissioner in making the changes was unlawful, after Lady Justice Macur found the appeal had a real prospect of success.
The judge also found that the appeal could not be regarded as purely academic, as the government may extend the changes brought in by the statutory instrument at their expiry date on 25 September, though ministers have promised to scrap most of them, while consulting on extending a few.
Article 39 director Carolyne Willow said: “We contend that statutory instrument 445 was made unlawfully, and we’re thrilled to have permission for an expedited appeal. The radical changes to children’s legal protections forced through overnight in April continue to put children in care at risk.
“Safeguards that were built up since the 1940s were deleted or diluted without any consultation with children and young people, the Children’s Commissioner for England or other children’s rights organisations. We’re going back to court to get the rights of children in care reinstated, and also to stop the education secretary doing anything like this again.”
Why charity lost initial case
Article 39 lost the original case because Mrs Justice Lieven found that it was lawful for the DfE not to have consulted the commissioner and children’s rights organiastions. This was because ministers were having to make “very quick decisions” in the face of an “unprecedented crisis that would impact on the welfare” of looked-after children.
This was based on worst-case projections from government scientific advisers for social work sickness absence rates from Covid-19 to reach 35% as a weekly average, which the DfE had to plan for even though nothing approaching these figures came to pass.
As a result it was reasonable for it to concentrate its consultative efforts on councils and providers, rather than children’s rights organisations, particularly as providers and councils were themselves taking into consideration the impact of any changes on children. This was evidenced by the Association of Directors of Children’s Services drawing up a RAG (red amber green) rating for the impact of the regulatory changes on the welfare of children. However, the ADCS has said it was not directly consulted on the changes.
Mrs Justice Lieven also rejected Article 39’s other grounds for challenging the decision: that the government had acted contrary to the objective of the statutory framework, to safeguard and promote the welfare of vulnerable children, and that education secretary Gavin Williamson had acted without regard to his duty to promote the wellbeing of children under section 7 of the Children and Young Persons Act 2008.
This was because, she ruled, the DfE’s objective in issuing the statutory instrument was to promote the welfare of children, on the grounds that the “flexibilities” introduced were designed to reduce risks to children in the face of a “major crisis”.
What is at stake?
The regulatory amendments introduced by the government in April affect 65 duties relating to children in care, across several pieces of legislation.
Key changes highlighted by Article 39 include:
- Making adoption panels discretionary rather than mandatory.
- Allowing a looked-after child to be temporarily placed with an unconnected person who is not an approved foster carer, and removing the oversight of a local authority nominated officer from the process.
- Enabling a child to be placed without nominated-officer approval with a foster carer who is also an approved adopter – thus potentially fast-tracking the fostering for adoption of very young children.
- Removing duties governing visits within fixed timescales to chidren in care, and replacing them with a stipulation that these be conducted “as soon as is reasonably practicable”.
- Removing the requirement for reviews of looked-after children’s care, beyond the first two reviews, to take place at least every six months, instead stating that these should take place where “reasonably practicable”.
- Replacing the requirement that independent individuals visit children’s homes at least once a month, with one saying that reasonable endeavours should be made to do so.