Government was ‘conspicuously unfair’ not to consult on rights of children in care, court rules

It was “conspicuously unfair” for the Government not to include groups representing vulnerable children in discussions about changes to their protections during the Covid-19 pandemic, the Court of Appeal has ruled.

The Department for Education acted unlawfully in failing to consult the children’s commissioner for England and others representing the rights of children in care before amending rules for children’s social care services, it found.

If these bodies had been included, the department would have “unquestionably been better informed” about the impact the planned changes would have on the youngsters who would be most affected, three senior judges concluded.

The DfE said it was disappointed by the ruling and was considering its next steps.

Article 39, a children’s rights charity, brought a challenge over the amendments, made in April at the height of the first coronavirus wave.

It argued the changes were unlawful as the department had failed to properly consult before making them, speaking only to local authorities, care providers and other agencies.

The amendments covered areas such as independent scrutiny of children’s homes, social worker visits, care reviews, and oversight of youngsters being considered for adoption.

In August, Article 39’s claim was dismissed by the High Court, with Mrs Justice Lieven ruling that while the safeguards in the new 2020 regulations were “of real importance to the protection of this very vulnerable cohort of children”, these were not “normal times” and the Government had to make “very quick decisions”.

The charity took its challenge to the Court of Appeal and in a ruling published on Tuesday, Lord Justice Underhill, sitting with Lord Justice Henderson and Lord Justice Baker, ruled in its favour, unanimously allowing the appeal.

Lord Justice Baker said he concluded that Article 39 was “correct in saying that the Secretary of State was under a duty to consult the children’s commissioner and other bodies representing children’s rights”.

The judge said that given the scope of the amendments, and the fact that the DfE chose to conduct a consultation – “albeit informally, and over a limited period” – it was “irrational not to include the children’s commissioner and other bodies representing children’s rights”.

He said he accepted Article 39’s argument that “the Secretary of State, having chosen to carry out a consultation, conducted it on an entirely one-sided basis and excluded those most directly affected by the changes”.

“Had they 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.”

The ruling also said: “Given the impact of these proposed amendments on the very vulnerable children in the care system, it was in my judgment conspicuously unfair not to include those bodies representing their rights and interests within the informal consultation which the Secretary of State chose to carry out.

“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.”

Lord Justice Baker concluded: “I would propose to allow the appeal and grant a declaration 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 amendment regulations.”

At the High Court, Article 39 had also argued the changes were made without proper regard to the welfare of children. The Court of Appeal case was specifically about the Government’s failure to consult.

In a statement after the ruling, Carolyne Willow (pictured), Article 39’s director, 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.”

A DfE spokesperson said: “Protecting vulnerable children has been at the heart of our response to the Covid-19 pandemic, and our intention has always been to act in their best interests at every stage.

“We took swift action to bring in temporary changes during a national crisis, all of which have now expired. We will continue working with the children’s commissioner and children’s charities to provide the best possible support to vulnerable children.”

Children’s commissioner Anne Longfield said youngsters must be listened to and their rights “must be embedded in aspects of decision making”.

During a speech setting out her vision for the future of children’s social care, she said: “And this is more important than ever, with today’s Court of Appeal ruling, which I very much welcome, which recognises the vital importance of the voice of the child in care in decision making that will affect their life.

“Following that judgment, I’ll be asking for reassurance from the DfE about how they’re going to make sure that that happens in the future.”

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