High Court gives green light to judicial review challenge over removal of children’s social care safeguards during COVID-19

Children’s rights charity Article 39 has been granted permission for a judicial review of the Department for Education’s removal and dilution of children’s legal protections during the coronavirus pandemic.

The proceedings are to be expedited and a High Court hearing is expected to take place on 27 and 28 July.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – also known as Statutory Instrument 445 – were laid before Parliament on 23 April and came into force the very next day.

The regulations made around 100 changes to 10 sets of children’s social care regulations. The SI is due to expire on 25 September “unless extended”.

Article 39 said it had counted 65 losses or dilutions of safeguards for children in care, and children who could come into care.

The safeguards affected include: social worker visits; reviews of children’s welfare in care; independent scrutiny of children’s homes, prospective adoptive parents and foster carers; and the process for placing children in care away from their home areas, including outside of England.

The High Court has granted permission for judicial review on three separate grounds, namely that:

1. The Department for Education failed to consult before making the changes to children’s legal protections;
2. The Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
3. The Education Secretary, Gavin Williamson, breached his general duty to promote the well-being of children in England.

Permission was not granted on the fourth ground, relating to Parliamentary procedure and failure of the government to make time for MPs and peers to scrutinise the changes prior to them coming into force.

Carolyne Willow, Article 39’s Director, said: “Children in care should be receiving the very best protections we can offer during this global pandemic. Families up and down the country have responded to these very frightening and uncertain times by changing their work and home routines to ensure their children’s needs are properly met. Removing legal protections from children in the care of the state inevitably puts them at great risk, and we know from past tragedies that too often children’s suffering goes hidden until it is too late and the harm has been done.

“Before the pandemic, at least half of local authorities were struggling to meet their statutory children’s social care duties – as judged by Ofsted – and councils have been saying for years that they are desperate for funds to meet the needs of children and families. Ministers should have been focused on ensuring local authorities had the financial support they needed to keep children in care safe and protected, rather than dismantling safeguards which their own statutory guidance states are vital and important.

“As a very small charity, any legal action we take to protect the rights of children involves financial risk and we are delighted the court has agreed to cap our costs should we lose the case.”

Oliver Studdert, partner at Irwin Mitchell, said: “This is a very important legal case which seeks to protect vulnerable children’s rights. In listing the case for a full hearing to be heard in just five weeks’ time, the High Court recognises the urgent and important nature of Article 39’s challenge.

"The Secretary of State did not comply with legal duties to consult with those most impacted by the significant and wide ranging changes which the Regulations introduced. The children and young people in our care system rely on the support of the local authority, who should care for them as a parent would care for their child. These are some of the most vulnerable people in society, yet these Regulations have removed essential safeguards which were previously deemed necessary to keep them safe. In a time of crisis where many children in the care system need more support, they are being given less.”

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