Gavin Williamson acted unlawfully over children’s social care exemptions, Court of Appeal rules
Fiona Simpson
Tuesday, November 24, 2020
Education Secretary Gavin Wiliamson acted unlawfully in not consulting the children’s commissioner for England before making a raft of changes to children’s social care legislation during the Covid-19 pandemic, the Court of Appeal has ruled.
The ruling comes following an appeal hearing requested by children’s rights charity Article 39 over amendments to children’s social care regulations during the first Covid-19 lockdown.
The Department for Education used emergency coronavirus legislation to relax and remove more than 65 safeguards and protections for vulnerable children, including changes to foster care and appeal processes and the standard of education and care in children’s homes, in April, bypassing a formal 21-day consultation.
Article 39 launched an unsuccessful judicial review against the DfE in August calling for the changes, introduced via Statutory Instrument 445, to be scrapped.
Despite dismissing claims made by the charity, High Court judge Mrs Justice Lieven said had such changes been introduced in “normal times”, a lack of consultation, particularly failing to consult the children’s commissioner for England, may have been judged as unlawful.
Announcing the results of a Court of Appeal hearing today (24 November) over the DfE’s failure to consult Anne Longfield before making the changes, Lord Justice Baker, backed by Lord Justice Henderson and Lord Justice Underhill, said “that the Secretary of State acted unlawfully by failing to consult the children’s commissioner and other bodies representing the rights of children in care before introducing the [legal changes]”.
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“It was manifestly in the interests of the vulnerable children who would be most affected by the proposed amendments that those agencies and organisations representing the rights and interests of children in care should be consulted,” he said.
In his judgment, Lord Justice Baker accepted the submission, made by Jenni Richards QC on behalf of Article 39, that the DfE had consulted “on an entirely one-sided basis and excluded those most directly affected by the changes”.
Had children’s rights organisations “been included, the Secretary of State would have unquestionably been better informed about the impact of the proposed amendments on the vulnerable children most affected by them”, he added, saying it was “potentially misleading” for the government to claim their actions were “broadly endorsed by the sector”.
In his final ruling, Baker said: “I can find nothing about the circumstances that existed in March 2020 to justify the Secretary of State’s decision (if indeed any conscious decision was made) to exclude the children’s commissioner and other bodies representing the rights of children in care from the consultation on which he embarked.
“He decided to undertake a rapid informal consultation, substantially by email. In the circumstances, it was plainly appropriate for the consultation to be conducted in that fashion, rather than a more formal, drawn-out process. But having decided to undertake the consultation, there was no good reason why that process should not have included the children’s commissioner and the other bodies. On the contrary, there were very good reasons why they should have been included.”
Carolyne Willow, director at Article 39, said: “I am hugely relieved and overjoyed that the Court of Appeal has confirmed that children and young people, and the organisations who represent their rights and interests, must be consulted when the government is considering changes to their legal rights and protections.
“This should draw to a close backroom, secret government consultations which exclude the rights, views and experiences of children and young people. As Lord Justice Baker has so powerfully communicated, it was precisely this perspective which the Secretary of State needed before embarking on any legislative change.
“The government’s actions were shameful, both in the scale of the protections they took away from very vulnerable children in England and the way they went about it. Many hundreds of care experienced people, social workers, children’s lawyers and others working in social care could see straightaway what was so dangerous about these changes. But it was too late by then; they had already come into force and ministers refused to budge.
“Today we celebrate children’s rights and the vital importance of judicial review in holding government to account for its obligations to children and young people.”
Katharine Sacks-Jones, chief executive of Become, the national charity for children in care and young care leavers said: "When making decisions that impact the lives of children in care, the government must respect the rights of care experienced children and young people, and listen to their voices and experiences and put these at the heart of decision-making.
"The SI445 judgement today makes this absolutely clear and we welcome this landmark decision. We urge the government to learn quickly from this, bring forward the long-awaited Care Review , and meaningfully listen to and act upon the experiences, expertise and aspirations of children in care and young care leavers."
Tulip Siddiq, Labour’s shadow minister for children and early years added: “We told the Education Secretary time and time again to consult properly on this dangerous and unnecessary attack on children’s rights, but unfortunately he did not listen.
“This ruling is further proof of Gavin Williamson’s staggering incompetence. He must now come to Parliament and apologise for acting unlawfully and letting down the most vulnerable children.”
The Department for Education has been contacted for comment.