Court of Appeal to hear challenge to dilution of children’s safeguards this week

The Court of Appeal will this week (4 September) hear Article 39’s appeal over a High Court ruling that while the Department for Education’s Coronavirus Regulations did damage children’s safeguards, they were not unlawful due to the pandemic.

Mrs Justice Lieven last month dismissed the three grounds of challenge advanced by the charity, namely that the Department for Education failed to consult before making the changes to children’s legal protections; that the Regulations were contrary to the objects and purpose of primary legislation, particularly the Children Act 1989; and the Education Secretary, Gavin Williamson, breached his general duty to promote the well-being of children in England.

The changes were made through the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445). The regulations were laid on 23 April 2020, and came into force the next day.

In granting permission for the appeal, Lady Justice Macur is reported to have ordered:

“This appeal has a real prospect of success on the basis that the Children’s Commissioner, at least, was not consulted for the reasons advanced in the grounds of appeal and skeleton argument, and/or there is a compelling reason why it should be heard in view of the judge’s expressed concerns as to the significance of the changes made in the Regulations and the impact upon a highly vulnerable group that would not be countenanced other than during present circumstances.

“The Regulations, in whole or in part, may not be discontinued on 25 September 2020 and this appeal therefore cannot be regarded as ‘academic’.”

Article 39 is represented by Oliver Studdert from Irwin Mitchell, Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.