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Challenge to Adoption and Children (Coronavirus) (Amendment) Regulations 2020 fails

In R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin) the High Court has found that the Department for Education did not act unlawfully when laying the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 before parliament.

Article 39 had brought judicial review proceedings on the grounds that: (a) there was a failure to consult; (b) the 2020 Regulations are contrary to the objects and purpose of the statutory scheme contrary to the Padfield principle; and (c) they were made without regard to the welfare of children contrary to the statutory obligation under s.7 of the Children and Young Persons Act 2008.

Article 39 is now seeking an urgent appeal of the judgment focusing on the government's failure to consult children, children's rights organisations and the Children's Commissioner for England.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament by the Children's Minister Vicky Ford MP on 23 April, and came into force the next day. There was no public consultation or time given for Parliamentary scrutiny. Article 39 noted that 65 safeguards were taken away or weakened affecting social worker visits to England's 78,000 children in care, six-monthly reviews of the care of looked after children, independent scrutiny of children's homes and senior officer oversight for babies and children being considered for adoption. Disabled children having short breaks and children placed outside their home areas were also affected.

Mrs Justice Lieven stated:

"I fully accept the Claimant's submission that the children subject to these Regulations are particularly vulnerable. Many local authorities in the field do not manage to provide a good enough level of service and this leaves already very vulnerable children highly exposed to risk. When things do go wrong it can be catastrophic for the children involved. In those circumstances, the importance of having regular visits; senior officer oversight by nominated officers; some independence through independent reviewing officers and independent adoption panels cannot be overstated. These are not administrative burdens, or minor matters, they are fundamental parts of a scheme protecting vulnerable children. Each has been introduced over time precisely because of the risks that [looked after children] face and the need for safeguards to be in place."

In finding that the Department for Education had acted lawfully, Lieven J acknowledged the very particular challenge faced by the Defendant in the children's social care sector in Spring 2020.

For the judgment, click here. For an article by Carolyne Willow for Article 39, click here.