Charity launches High Court challenge over dilution of children’s social care duties during COVID-19

A children’s rights charity is to ask the High Court to quash a statutory instrument that introduced significant changes to children’s social care law during the coronavirus pandemic.

Article 39 said the changes brought in by the Department for Education through Statutory Instrument 445 were made without any public consultation or time given for parliamentary scrutiny and debate. 

All of the changes came into force on 24 April 2020, the day after the SI was laid before Parliament.

Article 39 said: “We count 65 separate removals or dilutions of children’s legal protections – affecting children in care, and children who could come into care.”

The changes apply only to England; the Welsh government has stated it has no plans to amend its legislation in relation to vulnerable children, the charity said.

Article 39 said its grounds for legal challenge concentrated on six areas of policy in particular:

• The dilution of duties relating to social worker visits to children in care, “where even a six-weekly telephone call is no longer mandatory”;
• The removal of the duty to hold six-monthly reviews of children in care;
• The loss of safeguards for children placed out of their home area with people who are not connected to them;
• The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
• The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
• The dilution of the duty on children’s homes to ensure that an independent person visits each month and reports on children’s welfare there.  

Article 39 said: “We contend that the changes to children’s legal protections are a disproportionate response to the Covid-19 crisis and significantly increase the level of risk to many children who are already exceptionally vulnerable.

“These changes were rushed through without the opportunity for any parliamentary scrutiny, and with no meaningful consultation. They are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989. We believe the Secretary of State for Education breached his statutory duty to consider the need to promote the welfare of children when laying the statutory instrument, required by the Children and Young Persons Act 2008.”

Carolyne Willow, Article 39’s Director, said: “Local authorities have parental responsibility for three-quarters of the children affected by this radical deregulation. The legal protections snatched away were carefully built up from the 1940s onwards, and the government’s actions are dangerous. Its own statutory guidance explains in fine detail why children need the safeguards now gone. They were the culmination of decades of children’s experiences, testimony, learning and positive social work development. Terrible failures to protect children are also a significant part of that history."

Oliver Studdert, partner at Irwin Mitchell, said: “These Regulations were rushed through with little, if any, attempt to consider the views of those most impacted by the significant and wide-ranging changes which they introduced – children and young people in our care system.

“These are some of the most vulnerable people in society. They rely on the state to keep them safe, yet these Regulations remove essential safeguards and expose them to risk. In bringing this claim and challenging the lawfulness of the Regulations, Article 39 is giving them a voice.”

Article 39 claimed it saw “overlap in what was achieved overnight in April and other government deregulation attempts in 2016/17 and 2018/19”.

Irwin Mitchell has instructed Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.