The Queen (on the application of Article 39) v Secretary of State for Education

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Henderson,Lord Justice Underhill,Lord Justice Baker
Judgment Date24 November 2020
Neutral Citation[2020] EWCA Civ 1577
Docket NumberCase No: C1/2020/1279
Date24 November 2020

[2020] EWCA Civ 1577

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

The Hon Mrs Justice Lieven DBE

CO/2044/2020

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice President of the Court of Appeal, Civil Division)

Lord Justice Henderson

and

Lord Justice Baker

Case No: C1/2020/1279

Between:
The Queen (on the application of Article 39)
Appellant
and
Secretary of State for Education
Respondent

Jenni Richards QC, Stephen Broach and Khatija Hafesji (instructed by Irwin Mitchell LLP) for the Appellant

Clive Sheldon QC and Admas Habteslasie (instructed by Government Legal Department) for the Respondent

Hearing date: 4 September 2020

Approved Judgment

Lord Justice Baker
1

This is an appeal against an order dismissing the appellant's claim for judicial review by which it sought to challenge the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the “Amendment Regulations”) introduced by the Secretary of State for Education (“the Secretary of State”) in response to the outbreak of the Covid-19 pandemic. The Amendment Regulations introduced a range of temporary amendments to ten statutory instruments governing the children's social care system.

2

The issue arising on the appeal is whether the Secretary of State acted unlawfully in failing to consult bodies representing children in care, including the Children's Commissioner for England, before introducing the Amendment Regulations.

Background

3

The appellant is a registered charity which takes its name from Article 39 of the United Nations Convention on the Rights of the Child. Its charitable objectives are (1) the relief of need, and promotion of the protection, of children living in institutional settings in England and (2) the advancement of the human rights of children living in institutional settings in England.

4

The background to this claim is all too familiar – the rapid spread of the coronavirus Covid-19 across the world in the first few months of 2020. On 30 January 2020, the four Chief Medical Officers of the UK increased the risk level from low to moderate because of Covid-19 and advised that the government plan “for all eventualities”. On 3 March, the government published an “Action Plan” for the pandemic.

5

The evidence subsequently put before Lieven J by the Secretary of State was that the crisis arose at a time when the children's social care system was already facing significant pressures. As the judge later observed (at paragraph 4 of her judgment):

“the problems within the children's social care sector are long-standing and extremely well documented, not least in judgments from the Family Division of the High Court.”

There were concerns that Covid-19 would have a disproportionate impact on the sector for a number of reasons, including the fact that the workforce was predominantly female, and therefore more likely to have caring responsibilities, and the shortage of places in children's homes highlighted in a number of recent judgments.

6

In the first half of March, discussions took place between officials within the Department for Education (“DfE” or “the Department”) about whether or not to amend certain regulations in the child social care field. On 17 March, officials within the Department contacted representatives of 20 local authorities asking for views on regulations that should be considered for amendment. On the same day, the Department wrote to certain adoption agencies and fostering agencies along the same lines. On 18 March, the Department circulated a note to the Association of Directors for Children's Services (“ADCS”) seeking views on the proposals for regulatory amendment. Over the course of the next week, the Department received a range of responses from local authorities, Regional Adoption Agencies, service providers, the Local Government Association, ADCS, Cafcass and Ofsted addressing the question of whether any regulations should be amended.

7

On 18 March, the Prime Minster announced that all schools would be closed to the majority of pupils from Monday 23 March. On 19 March, DfE officials sent a long list of potential amendments to children's social care regulations to local authorities, service providers and Ofsted. The list was not shared with advocacy groups or lawyers' organisations or any agency or charity involved with children's rights, nor, at that stage, with the Children's Commissioner. In submissions to us, Ms Jenni Richards QC on behalf of the appellant described what happened as a form of private discussion with one side but excluding anybody representing children in care. Over the next three weeks, the Department received feedback regarding specific amendments from those organisations it had consulted, in the form of meetings, telephone calls and email exchanges.

8

On 22 March, the Department published guidance (“Coronavirus (Covid-19): guidance on vulnerable children and young people”) setting out arrangements to ensure that vulnerable children who had a social worker would continue to attend school. On 25 March, the Coronavirus Act received the Royal Assent. On the same day, officials in the DfE Coronavirus Response Team presented a preliminary submission to ministers in the Department on the secondary legislation which they were proposing to amend in response to Covid-19, identifying in an annex to the document the statutory instruments being considered for amendment. In the following week, various meetings and telephone calls took place between officials and social work practice leaders and principal social workers.

9

On 6 April, DfE officials presented a further submission to ministers setting out in greater detail the amendments to regulations which were being proposed. The purpose of the submission was described in these terms:

“1. Agreement to temporarily amend certain regulations related to children's social care to help local authorities, services and providers manage the Covid-19 outbreak.”

This was developed in the following paragraphs under the heading “Summary”:

“2. Ensuring that vulnerable children are properly safeguarded and have their welfare promoted remains a top priority. At the same time, we recognise that the challenging context means that local authorities and partners will struggle to meet the full range of statutory duties relating to child protection, safeguarding and care at present. Therefore, we are proposing to lay regulations before Parliament that will make temporary changes to provide additional flexibility in meeting statutory obligations whilst maintaining appropriate safeguards.

3. Changes are being made to 10 sets of regulations to ensure children's social care providers and local authorities have sufficient flexibility to respond to Covid-19 while still maintaining safe and effective care. Most changes will ease administrative burdens, allow visits and contact to take place remotely and relax strict timescales where possible. These are low risk changes and will provide more flexibility to focus on core safeguarding responsibilities. These amendments will be kept under review and in place until the Coronavirus Act renewal date on 25 September.

4. We have engaged with stakeholders on the proposals in confidence, including Ofsted, Association of Directors of Children's Services, the Local Government Association, Principal Social Workers and Practice Leaders. Issues raised by stakeholders which do not require legislative change will be addressed through accompanying operational guidance.”

10

At paragraph 8, the submission continued:

“8. While we understand local authorities and their local partners will want to continue to meet their existing statutory duties as far as they can, there will be times in the current circumstances when this may not be possible, so the proposed amendments provide proportionate flexibility to allow for the pressures of Covid-19. We want local authorities and local safeguarding partners to feel empowered to support families and protect children to the best of their abilities given the challenging context and have set out a series of principles, broadly endorsed by the sector, they should follow in making decisions:

Child-centred — promoting children's best interests

Risk-based — prioritising support and resources for children at greatest risk

Family focused — harnessing the strengths in families and their communities

Evidence informed — ensuring decisions are proportionate and justified

Collaborative — working in partnership with parents and other professionals

Transparent — providing clarity maintaining professional curiosity about a child's well-being.”

11

The submission continued by summarising proposed amendments to ten sets of regulations. Before the judge, and in this Court, the appellant has focused in particular on amendments to three particular sets of regulations — the Adoption Agencies Regulations 2005, the Care Planning, Placement and Case Review (England) Regulations 2010 and the Children's Homes (England) Regulations 2015. The submission presented to ministers on 6 April included the following observations about the proposed amendments to those regulations;

(1) “The Adoption Agencies Regulations 2005 [“the 2005 Regulations”] govern how adoption agencies exercise their functions in relation to adoption under the Adoption and Children Act 2002. We are proposing to relax the need to secure medical and DBS [Disclosure and Barring Service] checks by the end of stage 1 of the approval process to allow agencies to continue processing applications from prospective adopters …....

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4 cases
  • The Queen (on the application of Jayne Dawson) v United Lincolnshire Hospitals NHS Trust
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    • Queen's Bench Division (Administrative Court)
    • 16 April 2021
    ...inadequate. In this regard, he relied on the decision of the Court of Appeal in R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577, where an argument that the pandemic provided a justification for failure to consult was rejected. Ms Morris points out that that was a cas......
  • Anjna Khurana v North Central London Clinical Commissioning Group
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    • 23 February 2022
    ...at [23], [24] and [44], R (Howard League) v Lord Chancellor [2017] 4 WLR 92 at [39, R (Article 39) v Secretary of State for Education [2021] PTSR 696 at [84]–[86], R (Dewson) v United Lincolnshire Hospitals [2021] PTSR 1474 at [112]–[113] and R (Good Law Project) v Secretary of State for ......
  • SM (a child, by his father and litigation friend, MZM) v London Borough of Hackney
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    ...Devon Health Authority ex p. Coughlan [2001] QB 213; see e.g. Baker LJ's judgment in R (Article 39) v. Secretary of State for Education [2021] PTSR 696, at [78]: “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 p......
  • Miriam Binder, Jean Eveleigh, Victoria Hon and Douglas Paulley v Secretary of State for Work and Pensions
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    • Queen's Bench Division (Administrative Court)
    • 25 January 2022
    ...there referred to. I therefore reject this argument. 53 Reliance was also placed on R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577 but that was a case in which the finding that it was “conspicuously unfair” not to consult fully seems (from para 85) to have been link......

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