By Charlotte Webster-
The Court of Appeal is to hear a legal challenge against the Uk government’s elimination of numerous duties associated with the children in care, next week, (September 4) after a fast-track challenge was granted to a charity.
The claimants under the umbrella of Article 39, are committed to the promotion and protection of children living. They alleged that the Education Secretary acted lawfully in failing to consult children and young people, the Children’s Commissioner for England and other children’s rights organisations, before removing and diluting 65 safeguards for children in care.
The charity’s complaint was to be assessed in the context that children’s social care system “was already facing pre-existing challenges s prior to Covid19”. These pressures manifest themselves in the fact that as at March 2020 only 50% of local authorities were judged good or outstanding by Ofsted with 21 local authorities judged inadequate.
They complained that the deregulation achieved through The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445) were established at short notice on 23 April 2020, and came into force the very next day without due consultation of relevant bodies.
Among the bodies that were expected to have been consulted were the Children’s Commissioner for England and other children’s rights organisations, before removing and diluting 65 safeguards for children in care.
High Court Challenge
The Department Of Education won a High Court challenge against Article 39 in April, to implement temporary changes though without parliamentary scrutiny, in order to help councils and providers manage the impact of the coronavirus pandemic.
National Crises Of Urgency
In that case, the presiding judge, Mrs Justice Lieven, heavily criticised 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 would have likely ruled it unlawful but for it being “a national crisis of such urgency”.
However, the charity has now been granted an expedited appeal which will be heard next Friday on the grounds that the Department Of Health’s failure to consult children, children’s rights organisations and the commissioner in making the changes was unlawful.
The British government has until 25th of September to 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.”
Very Quick Decisions
Mrs Justice Lieven found that it was lawful for the DfE not to have consulted the commissioner and children’s rights organisations. 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 Department Of Education 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. This was 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 rejected the idea that the government had acted contrary to the objective of the statutory framework, which is to safeguard and promote the welfare of vulnerable children, or 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.
Objective
She ruled that 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”.
Discretionary Goals
Article 39 has a list of goals it aims to achieve. It wants the making of adoption panels discretionary rather than mandatory.
They also want a child under care 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, potentially fast-tracking the fostering for adoption of very young children.
Removing duties governing visits within fixed timescales to children in care, and replacing them with a stipulation that these be conducted “as soon as is reasonably practicable”.
They also want the requirement for reviews for children under 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.
Prospect
In granting the appeal, judge Rt. Hon. Lady Justice Macur said:
”This appeal has a real prospect of success on the basis that the Children’s Commissioner, at least, was not consulted for the reasons advanced in the grounds of appeal and skeleton argument, and/or there is a compelling reason why it should be heard in view of the judge’s expressed concerns as to the significance of the changes made in the Regulations and the impact upon a highly vulnerable group that would not be countenanced other than during present circumstances.
The Regulations, in whole or in part, may not be discontinued on 25 September 2020 and this appeal therefore cannot be regarded as ‘academic’.