On 24 November 2020, in the case of Article 39, R (On the Application Of) v Secretary of State for Education  EWCA Civ 1577, the Court of Appeal ruled that the Secretary of State for Education acted unlawfully by failing to consult the Children’s Commissioner of England and other bodies representing the rights of children, before relaxing safeguards for children in care during the pandemic. The Court found that the temporary amendments to vital pieces of legislation governing the system for children’s social care were substantial, wide-ranging and deemed by the Court to “have the potential to have a significant impact on children in care” once implemented.
The new Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Regulations”) were introduced by the Secretary of State on 23 April 2020 and came into force the following day in response to the COVID-19 outbreak. The Regulations included the relaxation of the requirement for social workers to visit children in care and review care plans in accordance with strict timescales, the relaxation of the requirement for monthly independent visits at children’s homes and the extension of the period for which children could be placed with emergency foster carers. Prior to this, the Education Secretary had undertaken an informal consultation, largely by email, with local authorities, adoption agencies, private providers and local government bodies, but had failed to consult with the Children’s Commissioner or any other organisations which represent the rights and views of children and young people in care. Article 39, a children’s rights charity, brought judicial review proceedings concerning the lack of consultation.
The case was first heard by the High Court in August 2020. The case was dismissed as it was deemed that the consultation conducted by the Secretary of State was lawful, taking into particular consideration the urgency and scale of issues with which the Secretary of State was being faced in March and April 2020. Article 39 appealed the decision.
Lord Justice Baker provided the lead decision in the Court of Appeal judgment handed down on 24 November 2020. Baker LJ first acknowledged the urgency and difficulties as a result of the Covid-19 pandemic faced by agencies and practitioners in children’s social care, as well as the Secretary of State with responsibility to oversee the system. He went on to find, however, that regardless of whether the Secretary of State was under a duty to consult in these circumstances, the fact is that he did consult, albeit informally and over a limited period. Given the scale of the amendments and the fact that the Secretary of State chose to conduct a consultation, it was the view of Baker LJ that it was irrational not to include the Children’s Commissioner and other bodies representing children’s rights. He noted that the significant risk to children’s rights was apparent to the Secretary of State, particularly as the Explanatory Memorandum of the Regulations acknowledged that “local authorities and partners may struggle to meet their full range of statutory duties relating to child protection, safeguarding and care.” If such bodies had been included within the consultation, the Secretary of State would have been more fully informed as to the potential impact of the proposed amendments upon vulnerable children and young people, those who would be affected the most.
Baker LJ concluded that the Secretary of State had been under a statutory duty to consult with “any persons he considers appropriate” (s.22(9) of the Care Standards Act 2000). He found that there was an established practice of consulting the Children’s Commissioner and other bodies when considering regulatory changes and there was a lack of justification in excluding these bodies from the informal consultation that was conducted in this instance. Taken together, these factors satisfied Baker LJ that the Secretary of State had a duty to consult. The Court of Appeal did not take issue with the method of consultation used or the informal nature of the consultation in such circumstances. However, Baker LJ highlighted that there were very good reasons why the Children’s Commissioner of England and other bodies should have been consulted, including that the individuals most affected by the changes were particularly vulnerable, were represented by such bodies, and those bodies were best placed to advise upon the potential impact upon vulnerable children and young people.
In terms of relief, Article 39 had originally sought a declaration that the Regulations were unlawful and a quashing order. However, the nature of the Regulations was such that the provisions had in fact expired on 25 September 2020 (between the Court of Appeal hearing on 4 September 2020 and the judgment). The Court of Appeal therefore granted a declaration that the Secretary of State had acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Regulations. Although the previous Regulations had been replaced by new regulations, the Court noted that the new regulations were much more limited in scope and were introduced after due process consultation which included all of the relevant bodies.
The ruling reflects the importance of protecting some of the most vulnerable members of our society, whatever the circumstances in which we find ourselves. It also highlights the very difficult balancing act faced by many organisations when seeking to manage the impact of the Covid-19 pandemic. It is significant that the eventual decision arrived too late to effect a change to the Regulations in place at the time, however, the outcome will hopefully secure the inclusion of those representing the rights of children in care in important consultations going forward.