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The Court of Appeal has unanimously voted today that the Secretary of State for Education acted unlawfully in failing to consult children’s rights organisations before making changes to legal protections for children in care in England.

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.”

Lord Justice Baker accepted the submission, made by Jenni Richards QC on behalf of children’s rights charity Article 39, that the Department for Education had consulted “on an entirely one-sided basis and excluded those most directly affected by the changes”. He added that had children’s rights organisations been included in discussions, the Secretary of State “would have unquestionably been better informed about the impact of the proposed amendments on the vulnerable children most affected by them.”

Article 39 launched the legal challenge after the government removed and watered down 65 safeguards for children in care in England, through The Adoption and Children (Coronavirus) (Amendment) Regulations 2020. Parliament was given no time to debate the changes with the regulations being introduced on 23 April and coming into force the very next day.

The safeguards lost or diluted by the Regulations 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.

After starting to review children’s legislation in February, officials in the Department for Education, including the Chief Social Worker for Children and Families, had private email, telephone and face-to-face exchanges with a number of local authorities, adoption agencies, private providers and local government bodies during March and April.

The views of children and young people in care, or organisations representing their rights, views, and interests, were not sought. The statutory body for children’s rights, the Children’s Commissioner for England, was informed of the changes to children’s legal protections in mid-April, after they had been signed off by Ministers.

Carolyne Willow, Article 39’s Director, said: “The government’s actions were shameful, both in the scale of the protections they took away from very vulnerable children in England and the way they went about it. Many hundreds of care experienced people, social workers, children’s lawyers and others working in social care could see straight away what was so dangerous about these changes. But it was too late by then; they had already come into force and Ministers refused to budge.

“This should draw to a close backroom, secret government consultations which exclude the rights, views and experiences of children and young people. As Lord Justice Baker has so powerfully communicated, it was precisely this perspective which the Secretary of State needed before embarking on any legislative change.

Oliver Studdert, partner at Irwin Mitchell, representing Article 39 said: “This is a huge victory for children’s rights and is evidence that the law can be used to hold the government to account.

In a statement released in response to the ruling, the British Association of Social Workers said it was ‘unfathomable’ that such key decisions were made without the expertise of professionals whose role is to safeguard children.

“Upholding and protecting children’s rights must be non-negotiable. No child in England must be deprived of their legal and human rights, many of which were built up over several decades, ever again.”