Article 39 launches legal action against DfE relaxation of statutory duties

Article 39 has applied to the High Court for a judicial review to reverse dozens of changes that relax or remove local authority’s statutory duties to children in care and on the edge of care including safeguards around adoption and foster care proceedings and expected standard of care in children’s homes.

The amendments, introduced via The Adoption and Children (Coronavirus)(Amendment) Regulations 2020, also known as Statutory Instrument 1445, came into force on 24 April despite being laid before parliament just 24 hours previously.

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It drew criticism from the sector over bypassing the usual 21-day consultation and parliamentary scrutiny.

Article 39, supported by solicitors Irwin Mitchell, is seeking the judicial review over claims Education Secretary Gavin Williamson “breached his statutory duty to consider the need to promote the welfare of children when laying the statutory instrument”.

Williamson told the education select committee that the sector, including directors of children’s services asked for the relaxation of duties due to concerns local authority children’s social care departments would become overstretched and understaffed during the Covid-19 pandemic.

Carolyne Willow, director of Article 39, branded the changes a “radical deregulation”.

She said: “The legal protections snatched away were carefully built up from the 1940s onwards, and the government’s actions are dangerous. [The government’s] own statutory guidance explains in fine detail why children need the safeguards now gone. They were the culmination of decades of children’s experiences, testimony, learning and positive social work development. Terrible failures to protect children are also a significant part of that history. 

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“No consultation occurred with children and young people affected by the government’s actions, and the Children’s Commissioner for England, who is required by law to promote and protect the rights of children, especially those in care, was only informed of the plans after they had been approved by the children’s minister. Children’s invisibility in the corridors of power is one of the principal reasons they have their own statutory body to champion their interests, so not properly involving the commissioner adds insult to injury.” 

Article 39  also claims that “correspondence disclosed [to the charity] by the Department for Education shows that it was the government which decided to review ‘all relevant children’s social care regulations’ despite warnings that the sector would “view their actions as watering down children’s safeguards”.

Willow added: “Ministers have claimed people working in children’s social care asked for these extensive legal changes, but documents released to us show this was driven by central government and deliberately kept secret. Civil servants briefed ministers that some may view their actions as watering down children’s safeguards, and said robust media responses were being prepared accordingly. Ministers were advised to announce a wider package of support to coincide with the changes to children’s law.”

The changes drew further criticism over similarities with two previously failed attempts to relax legislation relating to children’s social care.

In 2017, the government was forced to make a U-turn on so-called exemption clauses proposed as part of The Children and Social Work Bill. The clauses would have allowed councils to apply to opt out of some social care legislation.

Provisions contained in the bill during its first reading were intended to give councils the ability “to test different ways of working” within children’s services by freeing them from “requirements imposed by children’s social care legislation”.

Clauses 32, 33 and 34 were scrapped by parliament at its report stage.

Eighteen months later, the DfE issued a “mythbuster” document that referenced a number of elements of statutory guidance that “act as a barrier to good practice and outcomes for children and families” with clarification given on what is required by law.

It posed 10 questions on a range of topics including the frequency of social work visits and fostering. The DfE said the document “did not seek to change the law, merely clarify elements of statutory guidance”. However, it was withdrawn following a judicial review.

At the time, the DfE said it had taken the decision to remove the guidance from circulation, rather than “divert time and public money to litigation”.

Mark Kerr, chief executive of the Centre of Outcomes for Care, backed Article 39’s bid for legal action, and said: “The overriding question that remains is why remove these protections? The government has been trying since 2016 to reduce independent oversight and scrutiny of children’s social care, but what is their motivation? We have demonstrated that the sector has not called for a reduction in child protection nor supports it, so who does and why? 

“Now that information has been disclosed about the development of SI445, trust in the government is gone. In addition to the judicial review, we are now being forced to put in place a process to increase the scrutiny of government action in children’s social care. It is clear that the government does not want to engage or consult with experts, evidence or the wider children’s social care sector, so we must now take it to them.

“I am disappointed that again it has been left to a group of small charities and individuals to defend children’s rights and protections while large national charities, with significantly more resources, stay silent about what is a historic removal of child protection laws.”

Oliver Studdert, partner at Irwin Mitchell, added: “These regulations were rushed through with little, if any, attempt to consider the views of those most impacted by the significant and wide-ranging changes which they introduced – children and young people in our care system. These are some of the most vulnerable people in society. They rely on the state to keep them safe, yet these regulations remove essential safeguards and expose them to risk. In bringing this claim and challenging the lawfulness of the regulations, Article 39 is giving them a voice.”

The Department for Education has been contacted for comment.