[United Kingdom] DfE ‘unlawful’ in consulting too narrowly on changes to children in care legislation

The Court of Appeal finds the Department for Education’s (DfE) actions against the coronavirus pandemic unlawful for not consulting the children’s rights organizations. The safeguard changes were enacted in late April followed by an informal conference with local authorities and care providers but excluded Children’s Commissioner or other children’s rights organizations. As it was pointed out by Jenni Richards, Article 39’s barrister, the modifications were accepted “on an entirely one-sided basis and [had] excluded those most directly affected by the changes”. Lord Justice Baker stated that the situation in spring was not so urgent as to overlook the normal rule and not consult with the Children’s Commissioner.  

The regulations enacted in April removed several safeguarding measures in children’s care, including a mandatory in person visit by a social worker every 6 weeks and reviews of care every 6 months. Also, the new changes allowed the span of emergency foster placements and removed a requirement for a connection between the carer and the child. The Court argued that it was a hasty decision to exclude children’s rights organizations from the meeting. In response to that Clive Sheldon, DfE barrister claimed that they were doing what was needed in such an unprecedented situation and thus focused on service providers to get information about the vital services.

Although the pandemic was an unexpected situation, the judge does not see any reason to exclude children’s commissioner and other organizations since the bodies representing children’s rights would have informed about the consequences of the new regulations on vulnerable children. As president of Association of Director of Children’s Services puts it, “Many of the regulatory flexibilities afforded to children’s social care in the early stages of the pandemic were not used. However, the ones that were used were found to be helpful for local authorities during this unprecedented time. Where they were used we recorded this and put in place checks and balances. Children’s best interests have been, and will always be at the heart of our decision making.”