The High Court will hear the charity’s case against the government next month as it calls for amendments made to 10 acts designed to safeguard children in care and on the edge of care to be revoked.
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Timeline for relaxation of social care statutory duties
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Analysis: Changes to care responsibilities divide opinion among leaders
The government passed emergency legislation which removes and relaxes around 65 protections for children including time frames around social worker visits, checks and balances in adoption and fostering processes and expected standards of care in children’s homes.
The changes were brought in via The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, also known as Statutory Instrument 445, in April, bypassing the usual 21-day consultation and parliamentary scrutiny process.
The High Court has granted the judicial review, which will be held on 27 and 28 July, on three grounds:
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That the Department for Education failed to consult before making the changes to children’s legal protections;
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That the regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
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That the Education Secretary Gavin Williamson breached his general duty to promote the well-being of children in England.
Permission was not granted on a fourth ground put forward by Article 39, supported by solicitors Irwin Mitchell, which relates to parliamentary procedure and failure of the government to make time for MPs and peers to scrutinise the changes prior to them coming into force.
The changes have divided the sector with many deeming them “dangerous” and “unnecessary”.
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Blog: Samantha Little partner and head of the children law team at law firm Russell-Cooke explain the legal implications of the changes
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Blog: Mark Kerr from the Centre for Outcomes of Care on why emergency legislation is another attempt to push through exemption clause changes
Others have also likened the changes to two previously failed attempts by the government to amend legislation relating to vulnerable children.
Yesterday, the results of a Freedom of Information request submitted to DfE over the changes revealed “no specific requests” for changes to statutory duties relating to vulnerable children during the coronavirus crisis were made by the sector despite Williamson claiming that organisations had asked “specifically” for some flexibilities.
Carolyne Willow, director Article 39 said: “Children in care should be receiving the very best protections we can offer during this global pandemic. Families up and down the country have responded to these very frightening and uncertain times by changing their work and home routines to ensure their children’s needs are properly met. Removing legal protections from children in the care of the state inevitably puts them at great risk, and we know from past tragedies that too often children’s suffering goes hidden until it is too late and the harm has been done.
“Before the pandemic, at least half of local authorities were struggling to meet their statutory children’s social care duties – as judged by Ofsted – and councils have been saying for years that they are desperate for funds to meet the needs of children and families. Ministers should have been focused on ensuring local authorities had the financial support they needed to keep children in care safe and protected, rather than dismantling safeguards which their own statutory guidance states are vital and important.
“As a very small charity, any legal action we take to protect the rights of children involves financial risk and we are delighted the court has agreed to cap our costs should we lose the case.”
Oliver Studdert, partner at Irwin Mitchell, said: “This is a very important legal case which seeks to protect vulnerable children’s rights.
“The Secretary of State did not comply with legal duties to consult with those most impacted by the significant and wide ranging changes which the regulations introduced. The children and young people in our care system rely on the support of the local authority, who should care for them as a parent would care for their child. These are some of the most vulnerable people in society, yet these regulations have removed essential safeguards which were previously deemed necessary to keep them safe. In a time of crisis where many children in the care system need more support, they are being given less.”
Mark Kerr, chief executive of the Centre for Outcomes of Care, who backed Article 39’s campaign added: “Whilst being extremely pleased and relieved that the courts have given permission for the Judicial Review, I am also extremely disappointed we have had to take this action to retain vital child protections, again.
“It is becoming increasingly clear that the government is rejecting the views of the experts and the evidence base, in favour negotiating with carefully chosen organisations behind closed doors.”
