UK Court of Appeal rules failure to consult before removing safeguards for children in care unlawful
The Court of Appeal for England and Wales has ruled that the Secretary of State for Education acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing the rights and interests of children in care before introducing changes to legal protections afforded to children in care during the COVID-19 pandemic.
Without consultation, the British government fast-tracked The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 in which 65 safeguards for children in care were either completely removed or diluted. Strict timescales for social worker visits, six-monthly reviews of welfare and independent scrutiny of children’s homes were among the changes made.
It was discovered that private correspondence between the Department for Education, the Chief Social Worker for Children and Families, local authority representatives and adoption agencies took place but insights from the actual bodies representing children and young people in care were not sought.
Article 39, a small independent charity which fights for the rights of children in institutional care, launched legal action against the government for fast-tracking the changes and leaving no time for parliament to debate the changes. The charity was represented by Oliver Studdert, Jenni Richards QC, Steve Broach and Khatija Hafesji.
Lord Justice Baker in the Court of Appeal stated that the Secretary of State “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.”
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