Children's rights charity Article 39 has applied to the High Court for a judicial review of changes made to children's social care law by the Department for Education. The legislation came into force on 24 April - one day after being put before parliament - instead of the usual 21 days.

There was no public consultation or adequate time given for parliamentary scrutiny and debate of the 100 changes to children's social care regulations in England. The changes remove or dilute legal protections and affect thousands of vulnerable children in care, or who are coming into care.

The charity Article 39 is now challenging:

  • The dilution of duties of social workers visiting children in care
  • The removal of the duty to review children in care every six months
  • The loss of safeguards for children who are placed outside their home area, with people who are not connected to them
  • The loss of safeguards in short term breaks - particularly for disabled children
  • The loss of independent scrutiny before the court and other adoption safeguards
  • The dilution on the duty of children's homes to ensure that an independent person visits each month and reports on children's welfare.

The Department for Education introduced the changes claiming that councils needed the flexibility to deal with staff shortages or increased demand during the COVID-19 pandemic. It is due to expire on 25 September 2020 but can be extended by a further statutory instrument.

Our concern is that this could potentially clear the way for councils to reduce their legal duties towards children post-pandemic. Since lockdown measures have been implemented we know that the reporting of safeguarding concerns have reduced and some children haven’t had the safety net of school to rely on.

We feel there is a distorted view of what councils believe is happening and what is actually happening on the ground. Children’s safeguards, rights, and their voice in the process is more important now than it has ever been.  Children are falling between the cracks in services, or will ultimately never gain access to them in the first place.

These changes appear to be a knee jerk reaction to the COVID-19 crisis. We have a Children's Commissioner for England, Anne Longfield OBE to champion children's interests, however, she was only consulted after the plans had been approved by the Children's Minister.

We would question, has the government consulted with children in care about the changes? Where do young people get their voices heard in this process? And why would they loosen the safeguards around our most vulnerable and marginalised group of young people, rather than strengthen them?

Article 39 is advocating for children's rights by initiating a judicial review to ensure children get the care and support they are entitled to and Advocacy Focus is right behind them.

We will be sure to keep you updated as the judicial review develops and we are hopeful for a positive outcome, with all local authorities duties re-established and strengthened for the good of all Looked After young people.

Update: 7.8.2020

The High Court found that Article 39 was right to warn that vital safeguards for children in care were removed or diluted, but not that the Department for Education had acted unlawfully, because of the unprecedented situation in March and April 2020.

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

Click here for more detail:

From Article 39

Approved Judgement in High Court of Justice

Update: 26.8.20

Children’s Rights charity Article 39 has been fast-tracked to appeal against the DfE’s failure to consult children, children’s rights organisations and the Children’s Commissioner next Friday (4 September). They will claim that the removal of duties relating to Looked After Children under statutory instrument 445 was unlawful. 

Click here For full details: 

Update 4.9.20 

The changes that were introduced in April, and which will be restored on 25 September, will be: 

  • Making adoption and fostering panels discretionary. 
  • Allowing a looked-after child to be temporarily placed with an unconnected person who is not an approved foster carer, and removing the oversight of a local authority nominated officer from the process. 
  • Removing duties governing visits within fixed timescales to chidren in care, and replacing them with a stipulation that these be conducted “as soon as is reasonably practicable”. 
  • Removing the requirement for reviews of looked-after children’s care, beyond the first two reviews, to take place at least every six months, instead stating that these should take place where “reasonably practicable”. 
  • Replacing the requirement that independent individuals visit children’s homes at least once a month, with one saying that reasonable endeavours should be made to do so.

    The changes that the government announced will be retained until March 2021 allow virtual statutory visits where children and families are self-isolating. Read the regulations here