Article 39 granted appeal over children’s social care exemptions

Calls by the charity for around 65 removals and safeguards designed to protect children in care and on the edge of care to be scrapped were dismissed by a High Court judge earlier this month.

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The emergency amendments were introduced via The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, also known as Statutory Instrument 445, in April bypassing the usual 21-day period of consultation and parliamentary scrutiny.

They include the removal and relaxation of safeguards and protections relating to issues including time frames around foster care and adoption processes, social worker visits to children in care and the standards of care and education in children’s homes.

Article 39’s claim was based on three grounds: that the Department for Education failed to consult before making the changes to children’s legal protections; that the regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989; and the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England. 

The judge dismissed all three grounds ruling that the DfE “did not act unlawfully”.

However, during her ruling judge Mrs Justice Lieven said had such changes been introduced in “normal times” that a lack of consultation, particularly failing to consult the children’s commissioner for England, may have been judged as unlawful.

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The charity has today been granted an expedited appeal over the DfE’s failure to consult the commissioner with Court of Appeal judge Lady Justice Macur saying it has a “real prospect of success”.

Passing the appeal, 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.”

Citing an ongoing public consultation over the extension of some of the exemptions, she added: “The regulations, in whole or in part, may not be discontinued on 25 September 2020 and this appeal therefore cannot be regarded as ‘academic’,

Carolyne Willow, director of Article 39, 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.”