Department for Education’s Coronavirus Regulations did damage children’s safeguards but were not unlawful due to pandemic, High Court says

In a judgment handed down today (7 August), the High Court has rejected claims that the Department for Education acted unlawfully in the process of implementing The Adoption and Children (Coronavirus) (Amendment) Regulations 2020.

The claimant, Article 39, says it is now seeking an urgent appeal of the judgment with a focus on the government’s “failure to consult children, children’s rights organisations and the Children’s Commissioner for England”.

There were three grounds to Article 39’s claim – that the Department for Education failed to consult before making the changes to children’s legal protections; that the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989; and the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England. The judge dismissed all three grounds.

Mrs Justice Lieven accepted Article 39's claim that safeguards relaxed in the April regulations were important.

"The claimant is correct to reject the suggestion that the safeguards that have been relaxed in the Regulations were either minor or should be characterised as mere 'administrative burdens' that could be set aside with relatively little risk.

"In each of the seven specific regulations that the claimant refers to, the protections in the original Regulations are important ones."

The judge went on to say that many council's fail to provide a "good enough level of service and this leaves already very vulnerable children highly exposed to risk”.

She added: "When things do go wrong it can be catastrophic for the children involved. In those circumstances, the importance of having regular visits; senior officer oversight by nominated officers; some independence through independent reviewing officers and independent adoption panels cannot be overstated.

“These are not administrative burdens, or minor matters, they are fundamental parts of a scheme of protecting vulnerable children. Each has been introduced over time precisely because of the risks that LACs face and the need for safeguards to be in place.”

On the first ground, the judge did not consider the Department for Education erred in law, mainly due to the unprecedented crisis that COVID-19 presented at the time.

The judge said: "These were not normal times and the sector was facing an unprecedented crisis that would impact on the welfare of Looked After Children (LAC). The defendant had to make very quick decisions to protect those children in as effective a way as possible. To do that it was reasonable to focus on the providers of services to explain what they thought was needed in the very short term.

"Secondly, those providers were themselves considering the welfare of the children they were caring for. I entirely accept the claimant's case as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children.

“There will in some cases be a conflict between the wishes and interests of providers and those of LACs. However, that is not to say that the providers who were consulted were ignoring the need to protect the children and continue to seek to protect their welfare. This is shown quite clearly by the ADCS using a RAG rating of the Regulations in order to understand which were the most important to safeguard children.”

Ground two – that the Regulations are contrary to the objects and purpose of primary legislation – was also dismissed by Mrs Justice Lieven.

In her view, the Department for Education was seeking to promote the policy and objects of the legislation and to promote the welfare of children.

She said: “The amendments were considered by the Defendant to be an important way of protecting the welfare of the children in the circumstances of the time. The fact that the flexibility introduced was to important safeguards does not mean that the flexibility was not itself protecting the children.

“The claimant, and many others, disagree with the balance that the Defendant struck but that does not mean that that balance is unlawful.”

She also considered the department’s decision to state that the Regulations should only be used where strictly necessary and where the need stemmed from the pandemic.

"It is also relevant that the amendments only took effect for a relatively short period (6 months) and was subject to review by Ofsted", she added.

Ground three was rejected for similar reasons. Article 39 argued that "there is nothing to suggest that the defendant had in mind the need to promote the welfare of children when the [Regulations] were made". Justice Lieven said the argument had an "air of unreality" about it.

She said: “The very reason the Defendant was promoting these 2020 Regulations was to protect LACs who were at risk because of the consequences of the pandemic.

There is no inconsistency in the defendant promoting regulations which lessen the protection of LACs by introducing flexibilities in the context of a pandemic which poses much greater risks to those children if there are no flexibilities.”

Mrs Justice Lieven said that, as with ground two, the argument ignored the very particular challenge faced by the defendant in the children's social care sector in Spring 2020.
In that context, the judge rejected ground three, saying the defendant did take into consideration the section 7 duty.

Oliver Studdert, partner at Irwin Mitchell, representing Article 39 said: “This is a very disappointing decision. In giving judgment, the judge recognised the importance of the safeguards which have been removed by the regulations as ‘fundamental parts of a scheme of protecting vulnerable children’.

“She also stated that she entirely accepts the claimant’s case ‘as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children’.

“Despite this, the judge found the Secretary of State for Education’s failure to consult the Children’s Commissioner (who has vociferously opposed the Regulations), children’s rights charities (many of whom are calling for the Regulations to be scrapped) and those affected by the Regulations to be lawful, because of the urgency caused by the pandemic. This is notwithstanding the fact that it was found that there was sufficient time to consult. Article 39 is seeking permission to appeal the judgment on this ground to the Court of Appeal.”
Adam Carey