Education Secretary Acted Unlawfully

The Secretary of State for Education acted unlawfully in failing to consult bodies representing children in care, including the Children’s Commissioner for England, when he introduced the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 in response to the outbreak of the Covid-19 pandemic.

Allowing the appeal, the Court of Appeal granted a declaration to that effect to the appellant registered charity: The Queen (on the application of Article 39) v Secretary of State for Education [2020] EWCA Civ 1577 (Underhill LJ, Vice President, Henderson and Baker LJJ).

The Covid-19 pandemic undoubtedly created an urgent and very difficult problem for agencies and practitioners in children’s social care and for the Secretary of State with responsibility for overseeing the system.

But the urgency was not so great as to preclude at least a short informal consultation.

The Secretary of State was under a duty to consult the Children’s Commissioner and other bodies representing children’s rights.

He did consult albeit informally and over a limited period.

The case law was clear.  Once a consultation was embarked on, whether or not it was a legal requirement, it must be carried out properly and fairly: R (Coughlan) v N and E Devon Health Authority) [2001] QB 213

The amendments as a whole were unquestionably substantial and wide-ranging and, when implemented, had the potential to have a significant impact on children in care.

The regulations under consideration for amendment were an integral part of the whole statutory scheme governing children’s social care.

The Secretary of State’s duty to consult arose in three ways.

Firstly, in respect of those regulations made under the Care Standards Act 2000, there was a statutory duty to consult under s22(9).

Although the subsection required him “to consult any persons he considers appropriate”, it was in the circumstances irrational not to include the Children’s Commissioner and other bodies representing children’s rights.

Having chosen to carry out the consultation, the Secretary of State conducted it on an entirely one-sided basis and excluded those most directly affected by the changes.

Secondly, there was an established practice of consulting the Children’s Commissioner and other bodies representing children’s rights when considering regulatory changes of this sort.

An “appropriate consultation” about regulatory changes in this area manifestly had to include those organisations concerned with the rights of children, including children in care, and, in particular, the Children’s Commissioner.

Thirdly, given the impact of the proposed amendments on the very vulnerable children in the care system, it was 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.

There were very good reasons why the Children’s Commissioner and other bodies should have been included:

• The persons most affected by the regulations were the individuals whose rights and interests were represented by those bodies.
• Those individuals were particularly vulnerable – children in care, many of whom had been abused or neglected and in most cases were separated from their families, often at a considerable distance.
• The organisations best equipped to identify the impact of the proposed amendments on the vulnerable children were those expressly set up to represent their interests. They were plainly better equipped to do so than the local authorities and care providers whom the Secretary of State chose to consult.
• The Children’s Commissioner had statutory responsibility to promote and protect the rights of children in England, and to consider the potential effect of government policy proposals and government proposals for legislation on children, particularly those children living away from home receiving social care.
• By consulting those persons and organisations, the Secretary of State would have been better equipped to make judgments about how the regulation should be amended.

The regulations had now expired and new regulations introduced after a due process of consultation that included the Children’s Commissioner and other bodies representing children’s rights.

Granting the declaration, Baker LJ said that in the unusual circumstances of this case a declaration of ultra vires and a quashing order would be inappropriate.

Neither party now sought such an outcome.

In any event, evidence filed in the proceedings indicated that there were few occasions when the flexible arrangements permitted by the Amendment Regulations were actually used during the six months they were in force.

Insofar as they were used, the Court had no information on the way in which they were used and, as a result, was in no position to judge the impact of any declaration that the regulations were ultra vires.