Article 39, R (on the application of) v Secretary of State for Education

A consultation duty must be assessed in its statutory and factual context. During an urgent national crisis, a public authority may reasonably consult primarily those responsible for delivering essential services, provided the welfare implications are considered. The failure to consult children’s rights bodies was therefore not unlawful in the exceptional circumstances of the Covid-19 pandemic.

Regulations made to introduce temporary flexibility in children’s social care may lawfully promote statutory welfare objectives even though they relax important safeguards. The relevant question is whether the measures have a rational connection with the statutory purpose. A disagreement about the balance struck does not establish unlawfulness.

Article 39, a children’s rights charity, sought judicial review of the Adoption and Children (Coronavirus) Amendment Regulations 2020. The Regulations temporarily relaxed a range of safeguards governing children’s social care during the Covid-19 pandemic.

The challenge alleged failure to consult, breach of the statutory purpose of the children’s social care scheme under the Padfield principle, and failure to have regard to the duty to promote children’s wellbeing under section 7 of the Children and Young Persons Act 2008. The central issues were whether the consultation was legally adequate and whether the Defendant had lawfully balanced operational flexibility against the protection and welfare of looked after children.

1. Claim dismissed. The challenge to the 2020 Regulations failed on all three grounds.
2. The safeguards relaxed by the Regulations were important protections for highly vulnerable children. Regular social-worker visits, senior-officer oversight, independent reviewing officers and independent adoption panels were fundamental parts of the protective scheme, not merely administrative burdens.
3. The duty to consult depended on the provision, context and purpose of the consultation. There was an established practice of consulting children’s rights bodies, and in ordinary circumstances the Children’s Commissioner would have been an appropriate consultee. However, the Defendant faced an unprecedented and urgent crisis, with severe staff shortages and risks to the continued operation of children’s social care. It was reasonable to focus urgently on service providers, who were themselves considering children’s welfare. The consultation had not gone clearly and radically wrong.
4. The Defendant had used the regulatory powers to promote the statutory purpose of safeguarding and promoting the welfare of looked after children. Temporary flexibility could rationally protect children where rigid requirements risked impairing the delivery of essential services. The fact that the measures reduced important safeguards did not make them inconsistent with the statutory purpose. The Guidance, the temporary duration of the amendments and their review by Ofsted were relevant to rationality.
5. The section 7 duty under the Children and Young Persons Act 2008 stated a broad general principle and aim. The Defendant had regard to that duty. There was no inconsistency between promoting children’s welfare and introducing limited flexibility during the pandemic.
6. The Court accepted that the balance struck was contestable, but disagreement with that balance did not make the Regulations unlawful.