Education Secretary broke law by changing rules on children in care, Court of Appeal rules

Gabriella Swerling
·3-min read
Secretary of State for Education, Gavin Williamson - ANDY RAIN/EPA-EFE/Shutterstock /Shutterstock 
Secretary of State for Education, Gavin Williamson - ANDY RAIN/EPA-EFE/Shutterstock /Shutterstock

The Education Secretary broke the law by changing the rules on children in care during the pandemic, the Court of Appeal has ruled. 

The legal challenge was launched by Article 39, an advocacy group for children in care, after the Government removed and diluted a number of safeguarding measures for children in care in England. 

In total, 65 protective measures were disbanded via The Adoption and Children (Coronavirus) (Amendment) Regulations 2020. 

However, Parliament was given no time to debate the changes; the Regulations were introduced on April 23 and came into force the very next day.

In a judgement given on Tuesday, the Court of Appeal unanimously declared that the Secretary of State for Education, Gavin Williamson, acted unlawfully in failing to consult the Children’s Commissioner for England and other children’s rights organisations before making “substantial and wide-ranging”  changes to legal protections for England’s 78,000 children in care. 

Giving the leading judgment, Lord Justice Baker, with whom Lord Justice Henderson and Lord Justice Underhill agreed, found: “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. “

Allowing the appeal, the judges 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 [legal changes]” .

Among the 65 safeguards included: timescales for social worker visits to children in care, six-monthly reviews of children’s welfare, independent scrutiny of children’s homes and senior officer oversight of adoption decision-making for babies and children. 

The protections in place for disabled children having short breaks and children in care sent many miles away from home were also affected.

The ruling means that the Department for Education (DfE) will have to include the Children’s Commissioner and other organisations representing the rights and interests of children in care whenever he is consulting on changes to their legal protections.

The vast majority of the protections were restored on September 25, following campaigning from the advocacy group.

In the High Court, Mrs Justice Lieven had rejected the government’s characterisation such changes being “minor” and the simple removal of “bureaucratic burdens”. 

She said, “Regular visits to children, oversight by more senior officers over decision making and provision for independent scrutiny are critical safeguards to protect deeply vulnerable children in a field where errors happen with sad frequency and the consequences can be devastating”. 

However, it was Mrs Justice Lieven’s finding that the Education Secretary had not acted unlawfully in failing to consult organisations representing the rights, views and interests of children in care which Article 39 appealed. That has now been overturned by the Court of Appeal.

The Telegraph understands that the DfE is disappointed by this judgment and consider any possibility of any legal next steps to reverse the findings.  

A Department for Education spokesperson said: “Protecting vulnerable children has been at the heart of or response to the Covid-19 pandemic, and our intention has always been to act in their best interests at every stage.

“We took swift action to bring in temporary changes during a national crisis, all of which have now expired. We will continue working with the Children’s Commissioner and children’s charities to provide the best possible support to vulnerable children.”