By Gavin Mackintosh-
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, the Court Of Appeal have ruled.
In a landmark 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 DfE , concluding its actions had been lawful in the context of a national emergency.
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This ruling was overruled by the Court Of Appeal which concluded that a public authority has a duty to consult those interested before taking a decision.
The legal challenge accused the Department of Education for removing or diluting 65 separate legal protections, designed to safeguard the 78,000 children in care in England, during lockdown last April.
They included timescales for social worker visits to children in care, six-monthly reviews of children’s welfare, independent scrutiny of children’s homes, and oversight of adoption decision-making for babies and children.
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Statute
The judge said the duty is generated by statute. In this case, the duty was to consult the Children’s Commissioner. The Children’s Commissioner’s primary function is promoting and
protecting the rights of children in England.
The primary function includes promoting awareness of the views and
interests of children in England. Reference was also made to Lord Wilson’s judgment in R (Moseley) v Haringey LLBC [2014] UKSC 56, in which he said that there was a duty cast by the common law upon a public authority to act fairly.
They also included timescales for social worker visits to children in care, six-monthly reviews of children’s welfare, independent scrutiny of children’s homes, and oversight of adoption decision-making for babies and children.
Legitimate Expectation
The search for the demands of fairness in this context is often illumined by the doctrine of ”legitimate expectation”, he said.
He said that irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.”
The appeal was against an order dismissing the appellant’s claim for judicial review by which it sought to challenge the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the “Amendment Regulations”) introduced by the Secretary of State
for Education (“the Secretary of State”) in response to the outbreak of the Covid-19 pandemic.
The regulatory changes, which mostly affected children in care had been enacted in late April, having been brought 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 left out the Children’s Commissioner for England and other children’s rights organisations. That omission would form the background of the court battle resulting in today’s Court Of Appeal judgement.
The impact assessment identified a number of articles in the UN Convention on the Rights of the Child (“the Convention”) which were relevant to the proposed Judgment Approved by the court for handing down.
It included non-discrimination in article 2, article 3 (best interests of the child in article 3, article 6 (life, survival and development), and article 12 (respect for the views of the child).
The broad conclusion was that the proposed changes would not lead to
the infringement of these rights. The authors express themselves as being confident that they would not lead to any discriminatory application of the Convention.
Operational Guidance
They said that “safeguarding and acting to ensure that decisions are made in the best interest of the child is integral to the operational guidance we have issued and is the first principle we have set out in the guidance.”
One Sided
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 assessment of how the proposals might impact on children and young people was summarised in these terms:
“The changes focus on administrative procedures and timescales, and on visits and contact with children in care and those who may enter care as a result of Covid-19 should, for example, their parents or carers become unable to look after them. No changes are being made to the substance of the services being provided to these
children.
Examples of the possible impact on children are:
• children in residential care may find they are more frequently speaking remotely to family or advocates, rather than face-to-face;
• children in residential care may be deprived of their liberty when they have, or are suspected of having, coronavirus;
• children in private foster care arrangements may have to wait longer for the local authority to visit their placement;
• children in temporary foster care may be in that arrangement for longer than usual;• children who have complained about the services they have received from their local authority may have to wait longer than usual for a response from their local authority
Normal Rule
Leading the judgement, Lord Justice Baker, concluded that the 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, 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 be taking similar steps in the future.
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