Article 39 launches judicial review over social care exemptions - what happened in court?

In a remote hearing due to Covid-19 restrictions, judge Mrs Justice Leiven heard arguments from Jenni Richards QC on behalf of Article 39 on why the legislation introduced via The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, also known as Statutory Instrument 445, should be scrapped.

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The secondary legislation was introduced in April bypassing the usual 21-day period of consultation and parliamentary scrutiny.

The amendments removed and relaxed around 65 safeguards and protections for vulnerable children relating to foster care and adoption processes, social worker visits to children in care and standards of care and education in children’s homes.

Most of the changes are set to expire on 25 September, however, the Department for Education has launched a consultation over extending specific amendments.

Here, CYP Now recaps why the judicial review was granted and the key points put forward on both sides:

Why was Article 39 granted a judicial review?

Article 39 was granted a judicial review 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;

• 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.

Read more about the background of the review in our timeline of events.

What was the Education Secretary’s defence?

Education Secretary Gavin Williamson was represented by Gallina Ward.

Ward presented to Mrs Justice Leiven, Williamson and DfE’s justification for implementing the changes without a formal consultation period.

The main crux of Article 39’s argument centred on this lack of consultation, with the judge focussing heavily on the decision not to consult Children’s Commissioner for England Anne Longfield. 

Ward argued that the government did not have time to consult the commissioner or hold a formal consultation “given the circumstances”.

Certain bodies including the Association of Directors of Children’s Services (ADCS), the Local Government Association and Ofsted were informally consulted over the changes, Ward said.

She added that changes to SI445 were made following comments on suggested changes from ADCS meaning there was an element of consultation.

“The Department for Education was being told whether the changes would be in the best interests of children,” she said, adding, DfE was told what providers needed and what would be in the interests of children “in these circumstances”.

“‘In this context, this consultation was not irrational or unfair,” she said.

Discussing Article 39’s claims that the regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989 and that Williamson breached his general duty to promote the well-being of children in England, Richards said that those who were consulted by DfE were not asked about the “cumulative impact of removing multiple safeguards”.

Ward argued that the purpose of SI445 was “clearly to protect services for the benefit of children”, adding that when the legislation was passed in April there was uncertainty surrounding the impact of the pandemic on local authority children’s services.

What happens next?
Mrs Justice Leiven said after a day and a half of arguments from both sides, that she would aim to deliver a verdict on Friday, however, she added, it may not come until next week.

If the judge finds in favour of Article 39, DfE will be asked to revoke the changes, however, if the judge finds in favour of DfE they are likely to remain in place until 25 September.

Read more about the consultation to extend some of the amendments here.