DfE ‘unlawful’ in consulting too narrowly on changes to children in care legislation

Education secretary Gavin Williamson acted unlawfully in failing to consult parties representing children’s rights before amending safeguarding regulations during the first national coronavirus lockdown, judges have found.

In a significant victory for the charity Article 39, which brought the case against the Department for Education (DfE), the Court of Appeal unanimously overturned an August judicial review that criticised the department while concluding its actions had been lawful in the context of a national emergency.

The regulatory changes, which mostly affected children in care, were enacted in late April having been laid before Parliament for just 24 hours rather than the customary 21 days.

This followed an informal consultation process that included bodies representing local authorities and care providers, but omitted the Children’s Commissioner for England and other children’s rights organisations.

Today’s Court of Appeal judgment, which came in the wake of a hearing on 4 September, accepted a submission by Article 39’s barrister, Jenni Richards, of 39 Essex Chambers, that the process had been conducted “on an entirely one-sided basis and [had] excluded those most directly affected by the changes”.

The judgment did not quash the regulations as they have expired and there was due consultation in relation to the more limited regulations that replaced them.

‘Conspicuously unfair’ on children

Lord Justice Baker, who led the judgment, concluded that circumstances in the spring, as the first wave of the coronavirus pandemic surged across the UK, were not such as to “warrant a departure from the normal rule” under which there would have been a duty to consult the children’s commissioner.

Neglecting to consult the commissioner and other children’s rights bodies, he found, was irrational, went against established practice and was “conspicuously unfair” given the impact on “very vulnerable” children within the care system of the regulatory amendments, most of which expired on 25 September.

The commissioner, Anne Longfield, who raised repeated concerns about the changes but was not directly involved in the litigation, said she was “delighted” that the court had “recognised the vital importance of the voice of the child in care in decisions taken that affect them – including, and I would argue especially, during a pandemic”.

Longfield, whose six-year term ends in February 2021, added that she would be seeking assurances from the DfE that it would not act similarly in the future.

‘Focus on allowing services to continue’

April’s Adoption and Children (Coronavirus) (Amendment) regulations, which have become known as [statutory instrument] SI445, diluted or removed a range of safeguards relating to children in care.

These included around the requirement for social workers to visit children at six-week intervals, and to conduct such visits in person, as well as for reviews of care to take place every six months.

The changes also increased the permitted span of emergency foster placements, removing the requirement that carers have a connection with the child, and made fostering and adoption panels optional rather than mandatory.

The revisions were introduced after an informal consultation process over two-to-three weeks, responding to reasonable worst-case scenario planning that warned of the potential impact of large-scale staff absences across the children’s services workforce. Those contacted by the DfE included Ofsted, the Association of Directors of Children’s Services (ADCS), the Local Government Association (LGA), and bodies representing principal social workers and care organisations.

In court, the government’s legal team sought to argue that there had been no conscious decision to exclude the children’s commissioner, and that the interests of local authorities and others consulted were aligned with those of children – a point Article 39 disputed.

The DfE had merely been seeking to do its best in an unprecedented situation, its barrister, Clive Sheldon QC contended. It had therefore “focused on service-providers… best placed to provide information about what was required to allow vital services to continue”.

‘Substantial and wide-ranging’ changes

But both during the initial judicial review in July, and in the Court of Appeal hearing, attention focused on language relating to the amendments in DfE communications. These included an email to the children’s commissioner, who was eventually informed on 16 April of their imminent introduction.

The message characterised the measures as “small procedural changes” aiming to “ease administrative burdens”. This viewpoint, judges agreed, suggested ministers did not fully appreciate their potential consequences for children in care.

“Had [bodies representing children’s rights] 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,” wrote Lord Justice Baker, who said the changes were “on any view… substantial and wide-ranging”.

The judge concluded that he could “see no argument” as to why the children’s commissioner and other relevant bodies could not have been included in the DfE’s informal consultation.

Children’s rights organisations were “plainly better equipped” to represent young people in care than the parties contacted by the government, Lord Justice Baker said. The judge added that he did not believe the interests of children could be sufficiently protected by consulting local authorities and care providers.

The judgment did not quash the regulations on the grounds that they had expired and the more limited regulations that had replaced them had been duly consulted upon.

‘Relieved and overjoyed’

Carolyne Willow, Article 39’s director, said she was “hugely relieved and overjoyed” that the Court of Appeal had confirmed children and young people, and organisations who represent their 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,” Willow said. “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 vulnerable children in England and the way they went about it,” added Willow, who paid tribute to Article 39’s legal team and to people who had donated to the charity’s campaign. “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.”

‘Landmark’ ruling

Katharine Sacks-Jones, chief executive of the Become charity for children in care and young care leavers, also welcomed the “landmark” ruling.

​”When making decisions that impact the lives of children in care, the government must respect the rights of care experienced children and young people, and listen to their voices and experiences and put these at the heart of decision-making,” she said, adding that she hoped the government would learn from the judgment in its forthcoming care review.

A DfE spokesperson, expressing disappointment at the Court of Appeal’s verdict, said: “Protecting vulnerable children has been at the heart of or response to the Covid-19 pandemic, and our intention has always been to act in their best interests at every stage.

“We took swift action to bring in temporary changes during a national crisis, all of which have now expired,” the spokesperson said. “We will continue working with the children’s commissioner and children’s charities to provide the best possible support to vulnerable children.”

Best interests ‘at heart of decision making’

Giving its response to the ruling, Association of Directors of Children’s Services president Jenny Coles said: “Many of the regulatory flexibilities afforded to children’s social care in the early stages of the pandemic were not used. However, the ones that were used were found to be helpful for local authorities during this unprecedented time. Where they were used we recorded this and put in place checks and balances. Children’s best interests have been, and will always be at the heart of our decision making.”

She added: “Although ADCS was not directly consulted on the detailed changes made to regulations relating to children’s social care, we continue to work with government to ensure that the needs of children and families are front and centre during this ongoing public health crisis.”