Court of Appeal rules Education Secretary acted unlawfully in failing to consult Children's Commissioner and others before relaxing safeguards for children in care during pandemic

The Education Secretary acted unlawfully by failing to consult the Children's Commissioner for England and other bodies representing the rights of children in care before introducing regulations that made a range of temporary amendments to ten statutory instruments governing the children's social care system, the Court of Appeal has ruled.

Children's rights charity Article 39 had sought to challenge the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the "Amendment Regulations"). These regulations were introduced by the Secretary of State on 23 April in response to the outbreak of the COVID-19 pandemic and came into force the next day.

The minister had had discussions with local authorities, adoption agencies, private providers and local government bodies beforehand, but not with the Children’s Commissioner and other organisations representing the view of children and young people in care.

Article 39 claimed that the move watered down 65 safeguards for children in care in England. It launched legal proceedings over the lack of consultation.

In the High Court Mrs Justice Lieven dismissed the claim in August 2020. Article 39 appealed.

Allowing the appeal in Article 39, R (On the Application Of) v Secretary of State for Education [2020] EWCA Civ 1577, Lord Justice Baker said the pandemic had undoubtedly created "an urgent and very difficult problem" for agencies and practitioners in children's social care and for the Secretary of State with responsibility for overseeing the system.

“But the urgency was not so great as to preclude at least a short informal consultation. And the fact that the Secretary of State was facing difficult decisions about whether and, if so, how to modify services made it important that he should receive as wide a range of advice as possible,” the judge said.

Lord Justice Baker said: “…..leaving aside for a moment the question whether the Secretary of State was under a duty to consult, the fact is that he did consult, albeit informally and over a limited period. In those circumstances, the case law is clear that, whether or not a consultation is a legal requirement, if it is embarked on it must be carried out properly and fairly…”

The amendments as a whole were “unquestionably substantial and wide-ranging and, when implemented, had the potential to have a significant impact on children in care”, the Court of Appeal judge said, adding that the regulations which were under consideration for amendment were an integral part of the whole statutory scheme governing children's social care.

Lord Justice Baker said there was plainly a significant risk that the right of children in care or otherwise being looked after by local authorities would be affected. “On any view, these amendments, taken as a whole, represented a significant change in the substantive provision of services to children.”

Given the scale of the amendments, it was even more important for the consultation which the Secretary of State embarked upon to include organisations representing children's rights and in particular the Children's Commissioner, he added.

In these circumstances, the Court of Appeal judge concluded that Article 39 was correct in saying that the Secretary of State was under a duty to consult the Children's Commissioner and other bodies representing children's rights. That duty arose in three ways:

1. With regard to those regulations made under the Care Standards Act 2000, there was a statutory duty to consult under s.22(9). “It is correct that the subsection merely requires him to 'consult any persons he considers appropriate'. But, given the scope of the amendments arising here, and the fact that the Secretary of State chose to conduct a consultation, albeit informally and over a limited time period, it was, in my view, irrational not to include the Children's Commissioner and other bodies representing children's rights.”
2. There was an established practice of consulting the Children's Commissioner and other bodies representing children's rights when considering regulatory changes of this sort.
3. Given the impact of the proposed amendments on the very vulnerable children in the care system, it was in Baker LJ’s judgment conspicuously unfair not to include those bodies representing their rights and interests within the informal consultation which the Secretary of State chose to carry out. “I can find nothing about the circumstances that existed in March 2020 to justify the Secretary of State's decision (if indeed any conscious decision was made) to exclude the Children's Commissioner and other bodies representing the rights of children in care from the consultation on which he embarked. He 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.” [Baker LJ then set out those reasons]

All three strands of the purpose of consultation articulated by Lord Wilson in the Moseley case in the Supreme Court were present here, the Court of Appeal judge said. “First, the extension of the consultation to organisations representing children's rights would unquestionably have informed the Secretary of State's decision about the amendments. In the context of the pandemic, when faced with difficult decisions about how to protect children's social care services, it was surely right to seek a wide range of views so that the proposed amendments could be properly tested. Secondly, it was manifestly in the interests of the vulnerable children who would be most affected by the proposed amendments that those agencies and organisations representing the rights and interests of children in care should be consulted. Thirdly, given the range of regulations under review, and the potential impact of the proposed changes across the country, a wider consultation was clearly, in Lord Wilson's words, 'reflective of the democratic principle at the heart of our society'. Such consultations help to ensure protection against arbitrary decision-making.”

Lord Justice Baker continued: “Accordingly, whilst I agree with the judge's first conclusion that in normal circumstances there can be no possible doubt that the Secretary of State would have had to ensure that he was consulting a range of people in order to ensure that he was getting a full answer to the question posed and that, in particular, he would have been under a duty to consult the Children's Commissioner, I respectfully disagree with her second conclusion that the circumstances were such as to warrant a departure from the normal rule.".

Counsel for the respondent minister conceded that it was not part of the Secretary of State's case that there was insufficient time to consult the Children's Commissioner and other bodies representing children's rights.

“I can see no argument why the Children's Commissioner and the other representative bodies could not have been consulted in the same relatively informal way (by email) as was adopted by the Secretary of State in the two or three weeks or so when which he was consulting the local authorities and other providers,” Lord Justice Baker.

In terms of relief Article 39 no longer sought a declaration of ultra vires or a quashing order and said it would be content with a declaration that the regulations were unlawful by reason of the failure to consult. [The overwhelming majority expired as planned on 25 September]

Lord Justice Baker said that it seemed to him that in the unusual circumstances of this case a declaration of ultra vires and a quashing order would be inappropriate.

Accordingly, he allowed the appeal and granted a declaration that the Secretary of State acted unlawfully by failing to consult the Children's Commissioner and other bodies representing the rights of children in care before introducing the Amendment Regulations.

Lord Justice Henderson and Lord Justice Underhill agreed.

Carolyne Willow, Article 39’s Director, said: “I am hugely relieved and overjoyed that the Court of Appeal has confirmed that children and young people, and the organisations who represent their rights and interests, must be consulted when the government is considering changes to their legal rights and protections.

“This should draw to a close backroom, secret government consultations which exclude the rights, views and experiences of children and young people. As Lord Justice Baker has so powerfully communicated, it was precisely this perspective which the Secretary of State needed before embarking on any legislative change.”

Oliver Studdert, partner at Irwin Mitchell, representing Article 39 said: “This is a huge victory for children’s rights and is evidence that the law can be used to hold the government to account….

“This judgment ensures that vulnerable children have a voice when decisions are made which affect them. The Court of Appeal has unequivocally recognised the fundamental importance of ensuring that not only the Children’s Commissioner, but crucially also those who represent the rights of children in the care system, are consulted in relation to important decisions about them. The fact that we are in the middle of a global pandemic did not and does not give the government the right to make decisions without taking the views of those affected into account.” 

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.