The court of appeal finds that the Secretary of State for Education, Gavin Williamson, acted unlawfully in failing to consult the Children’s Commissioner for England and other children’s rights organisations before making‘ changes to legal protections for children in care.
The judgement comes after children’s charity, Article 39, launched the legal challenge following the government decision to removed and water down 65 safeguards for children in care in England, through The Adoption and Children (Coronavirus) (Amendment) Regulations 2020.
The safeguards lost or diluted by the Regulations included timescales for social worker visits to children in care, six-monthly reviews of children’s welfare, independent scrutiny of children’s homes and senior officer oversight of adoption decision-making for babies and children.
The protections in place for disabled children having short breaks and children in care sent many miles away from home were also affected.
The charity said parliament was given no time to debate the changes, as the regulations were introduced on April 23 and came into force the next day.
After starting to review children’s legislation in February, officials in the Department for Education, including the chief social worker for children and families, had private email, telephone and face-to-face exchanges with a number of local authorities, adoption agencies, private providers and local government bodies during March and April.
The views of children and young people in care, or organisations representing their rights, views and interests, were not sought.
The statutory body for children’s rights, the Children’s Commissioner for England, was informed of the changes to children’s legal protections in mid-April after they had been signed off by Ministers.
Lord Justice Baker said it was ‘potentially misleading’ for the government to claim their actions were ‘broadly endorsed by the sector’, since the sector plainly included not merely local authorities and service providers but also all those engaged or involved with children’s social care.
‘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, Article 39’s director, said the decisions should draw to a close backroom, secret government consultations.
“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 straight away 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.
‘We are extremely grateful to our brilliant legal team who worked at speed throughout the first lockdown and with utter devotion to the children and young people at the heart of this case.
‘As a very small charity, this challenge would not have been possible without hundreds of kind donations from very committed individuals and organisations.
‘This has definitely been a huge team effort. Today we celebrate children’s rights and the vital importance of judicial review in holding the government to account for its obligations to children and young people.’
The Department for Education has been contacted for comment.
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