High Court dismisses calls for children's social care exemptions to be scrapped

The ruling comes following a judicial review, launched by children’s rights charity Article 39, in which the organisation called for around 65 removals and safeguards designed to protect children in care and on the edge of care to be scrapped.

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.

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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 DfE 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”.

She said: “These were not normal times and the sector was facing an unprecedented crisis that would impact on the welfare of looked after children. 

“The defendant had to make very quick decisions to protect those children in as effective a way as possible. To do that it was reasonable to focus on the providers of services to explain what they thought was needed in the very short term.”

However, in summing up the case, Mrs Justice Lieven said she “fully accepted” that “the children subject to these regulations are particularly vulnerable”.

“These are not administrative burdens, or minor matters, they are fundamental parts of a scheme protecting vulnerable children. Each has been introduced over time precisely because of the risks that [looked after children] face and the need for safeguards to be in place. 

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“I agree with the claimant that these are not bureaucratic provisions that are a “burden” and as such can be set aside relatively lightly. Regular visits to children, oversight by more senior officers over decision making and provision for independent scrutiny are critical safeguards to protect deeply vulnerable children in a field where errors happen with sad frequency and the consequences can be devastating,” said Mrs Justice Lieven.

She also went on to say that 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.

Mrs Justice Lieven added: “I agree with the claimant that the children’s commissioner could have been consulted. Although matters were urgent there was time for many providers and not just local authorities to be consulted.

“In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the commissioner was not consulted. However, given the very particular focus of what the defendant had to decide in amending the 2020 regulations, the extreme urgency and the scale of the issues facing the defendant in March-April 2020, I do not think there was an error of law in not consulting either the commissioner or the claimant.”

Article 39 has vowed to launch an appeal over the ruling on the grounds relating to a perceived lack of consultation after it was revealed during the judicial review that selected local authorities had been informally sought to express their views on the changes but had been urged to keep information private.

An email from the chief social worker for children and families, Isabelle Trowler, to a number of local authorities was read out by Article 39’s counsel, Jenni Richards QC during the remote hearing. 

It stated: “Please do not distribute more widely for obvious reasons”.

The court was told that a briefing sent to ministers in early April, to gain sign-off for the amendments advised that civil servants had “engaged with stakeholders on the proposals in confidence”. 

The amendments are set to expire on 25 September, however, last month DfE launched a consultation over the extension of some elements until March 2021.

These include:

• Medical reports on prospective foster carers and adopters to be approved at a later date

• For visits between social workers and children to take place virtually when local lockdowns or self-isolation make in-person visits impossible

• Enable Ofsted to phase in their return to children’s social care inspections between now and April 2021.

Carolyne Willow, director of Article 39, said: ““We firmly reject the implication of this judgment which is that in times of emergency, despite having a period of two months to make decisions, the only voices government must listen to are public bodies and service providers. It is with a heavy heart, because we know the cost risk and the work involved for everyone, that we have instructed our legal team to seek an urgent appeal. 

“We just cannot risk this judgment taking us back decades to a time of paternalism and worse, when children had no separate status and rights to be considered. One of the primary reasons the Children’s Commissioner post exists is to ensure children have a voice and presence in the corridors of power.

“Here we had a government department which considered and planned over a period of two months the radical deregulation of children’s safeguards and never once sought to hear the views of children themselves or the organisations solely representing their interests. Apart from anything else, what does this tell other government departments about the importance of children’s rights – the Home Office or the Department for Work and Pensions for example – when the Department for Education decided not to consult the Children’s Commissioner whose office pre-lockdown was just several floors down from ministers?”

Katharine Sacks-Jones, chief executive at Become, the national charity for children in care and young care leavers added: “We are very disappointed with today’s decision that will see the emergency regulations remain in force until 25 September. They are not in the best interests of children in care and young people and should never have been brought in in the first place.

“While we recognise these are extraordinary times, introducing these measures without properly consulting children’s rights groups and young people themselves is not the right way to approach things.

“The government's own submission acknowledged the care system was in a state of crisis prior to the pandemic. It must now use the promised care review as an opportunity to address these challenges and ensure care-experienced young people’s voices and experiences are at the heart of this.”

• Read the full ruling here