Challenge upheld to Covid-19 changes to care regime for children
7 December 2020
R (Article 39) v Secretary of State for Education  EWCA Civ 1577
The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.
On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.
The Amendment Regulations introduced a range of temporary amendments to ten statutory instruments governing the children’s social care system. These were intended to respond to concerns that the system was already facing significant pressures and that it would be disproportionately affected by the Covid-19 pandemic outbreak. The changes were to provide additional flexibility in meeting statutory obligations, in particular by easing administrative burdens, allowing visits and contact to take place remotely and relaxing strict timescales where possible.
The Department for Education held discussions with representatives of local authorities and agencies and sought their views regarding the amendments; however, no consultation was held with the Office of the Children’s Commissioner for England.
The Amendment Regulations were laid before Parliament on 23 April 2020 and came in to force the following day. They were time-limited, expiring on 25 September 2020.
On 30 April, the Children’s Commissioner issued a statement on the changes in which she highlighted a number of concerns. In particular, she proposed that local authorities should only be entitled to relax their adherence to statutory duties if they could show that their workforce had been significantly depleted and that this decision had involved the Principal Social Worker and been evidenced and recorded.
The appellant, Article 39, a charity which works to protect children living in institutional settings in England and to advance their human rights, challenged the Amendment Regulations by judicial review. It focused in particular on amendments to three sets of regulations, dealing with adoption panels, timescales surrounding placements of children, and supervision requirements for individuals delivering care.
On 5 June 2020, its claim was issued, relying on four grounds of challenge: (1) failure to consult; (2) irrational failure to lay the regulations before commencement; (3) breach of the Padfield principle (use of a power for an improper purpose), and (4) breach of s.7 of the Children and Young Persons Act 2008.
In the High Court, Lieven J dismissed the claim on all grounds. She held that when making the regulations in March and April 2020, the Secretary of State was facing an unprecedented situation. In normal times, there would have been a duty to consult the Children’s Commissioner; however, these were not normal times. Very quick decisions had to be made to protect children in as effective a way as possible. To do that, it had been reasonable to focus on what the providers of services thought they needed. The remaining grounds also fell to be dismissed.
Court of Appeal Decision
The Court of Appeal disagreed with the conclusion of the High Court and held that the circumstances of the pandemic were not such as to warrant a departure from the normal rule. There was no reason why the Children’s Commissioner and the other representative bodies could not have been consulted in a relatively informal way (including by email), as had been done with the other providers who had been contacted (§87).
As a preliminary point, at §§ 78 – 79, the Court noted that irrespective of whether the Secretary of State was under a duty to consult, the fact was that he did, “albeit informally and over a limited period”. In those circumstances, case law was clear that when a consultation is embarked upon, it must be carried out properly and fairly (citing R (Coughlan) v N and E Devon Health Authority)  EWCA Civ 1871). Further, the amendments were unquestionably substantial and wide-ranging and had the potential to have a significant impact on children in care, especially given the context of a system which was already under significant pressure.
The Court held that the duty to consult arose in three ways (§§ 83 – 85).
First, with regard to those regulations made under the Care Standards Act 2000, there was a statutory duty to consult under s.22(9). The Secretary of State was thereby required to consult “any persons he considers appropriate”. Given the scope of the amendments arising, and the fact that the Secretary of State had chosen to conduct a consultation, albeit informally and over a limited period of time, the Court of Appeal held that “it was irrational not to include the Children’s Commissioner and other bodies representing children’s rights.” The Court accepted the appellant’s submission that “the Secretary of State, having chosen to carry out a consultation, conducted it on an entirely one-sided basis and excluded those most directly affected by the changes.”
Second, the Court held that 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. In particular, the Court noted that there had been consultation with the Children’s Commissioner and other bodies representing children’s rights before the introduction of at least some of the original regulations amended by the Amendment Regulations.
Finally, given the impact of these proposed amendments on the very vulnerable children in the care system, it was “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.
In its concluding paragraphs, the Court highlighted the purpose and importance of consultations, noting that 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, facing difficult decisions about how to protect children’s care services, the Court of Appeal held that “it was surely right to seek a wide range of views so that the proposed amendments could be properly tested.”
The Court further highlighted that 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”.
Finally, given the range of amendments and the potential impact of the proposed changes across the country, a wider consultation was clearly, “reflective of the democratic principle at the heart of our society” (quoting Lord Wilson in R (Moseley) v Haringey LBC  UKSC 56 at § 24). Such consultations “help to ensure protection against arbitrary decision-making.” (§§ 86-87).
The Court of Appeal’s decision has reinforced the importance of ensuring that consultations are carried out properly and fairly, notwithstanding the exceptional challenges faced by public bodies caused by the Covid-19 outbreak. The decision respects the burdens faced by public bodies, by recognising that a rapid and informal consultation process carried out substantially by email was appropriate in the circumstances. However, in circumstances where it formed no 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 (see § 87), the Court found that there was no reason why they could not have been consulted in the same relatively informal way as was adopted by the Secretary of State with regards to other providers.
Charlotte Gilmartin is a barrister at 1 Crown Office Row.
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