Court of Appeal holds government unlawfully failed to consult when downgrading protections for children's rights

In a judgment handed down on 24 November 2020, the Court of Appeal has held that the Secretary of State for Education unlawfully failed to consult with the Children's Commissioner and children's rights organisations before deciding to downgrade a host of protections for children's rights in secondary legislation governing adoption and children's social care.

The judicial review claim was brought by the children's rights charity Article 39, represented by Irwin Mitchell solicitors who instructed Jenni Richards QC and Steve Broach from 39 Essex Chambers and Khatija Hafesji from Monckton Chambers. The challenge was made to the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 ('the Amendment Regulations'), made in response to the Covid-19 pandemic. The Amendment Regulations made changes to ten different statutory instruments which provide a range of protections and entitlements to children in local authority care.

At first instance, Mrs Justice Lieven dismissed the claim for judicial review on all grounds. However on Article 39's appeal, the Court of Appeal held that the failure of the Secretary of State to consult the Children's Commissioner and children's rights organisations before making the Amendment Regulations was unlawful. Lord Justice Baker (with whom Underhill and Henderson LJJ agreed) held that 'given the impact of these proposed amendments on the very vulnerable children in the care system, it was in my 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.'

The judgment is available here

Article 39's statement on the judgment is available here