In Article 39, R (on the application of) v Secretary of State for Education [2020] EWHC 2184 (Admin) Mrs Justice Lieven rejected a challenge to the validity of the Adoption and Children (Coronavirus) Amendment Regulations 2020.

“In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted. However, given the very particular focus of what the Defendant had to decide in amending the 2020 Regulations, the extreme urgency and the scale of the issues facing the Defendant in March-April 2020, I do not think there was an error of law in not consulting either the Commissioner or the Claimant”


The Regulations were laid before Parliament on the 23rd April 2020.


“The Claimant argues that the 2020 Regulations undermine a wide range of statutory protections for vulnerable children, are a disproportionate response to the Covid-19 crisis, and significantly increase the risk to vulnerable children. The Defendant argues that the 2020 Regulations were a temporary and proportionate response which put in place limited flexibility in a number of absolute requirements in order to prioritise the needs of children by supporting the delivery of services at an exceptionally challenging time.”


The claimant’s arguments were not accepted by the court.   The failure to consult widely was justified, given the facts at the time.   The Regulations were subject to certain safeguards.
  1. There are two overarching points in this case. The first is that the Defendant was facing an unprecedented situation in March and April 2020 and the decisions that were made have to be considered in that context. The advice being given by SAGE in February 2020 was of a realistic worst-case scenario of social worker absences through sickness from Covid-19 of 35% as a weekly average and rising to a peak of 41%, and an excess death toll of 828,000. Happily, nothing approaching those figures occurred and the strains on the sector although great have not been of that scale. However, that is what the Defendant had to be planning for and the fairness of the consultation has to be judged in the light of the advice the Defendant was receiving at the time.
  2. Further, these impacts were within a sector which is already facing enormous challenges with some local authorities already operating at staffing levels well below optimum. A large proportion of LAC are living with foster carers and foster carers are, as a group, likely to be older and thus more vulnerable to Covid-19. These were important factors in the Defendant considering it to be critical to introduce more flexibility into the system in the light of the crisis.
  3. The second overarching matter is that the Claimant is correct to reject the suggestion that the safeguards that have been relaxed in the Regulations were either minor or should be characterised as mere “administrative burdens” that could be set aside with relatively little risk. In each of the seven specific regulations that the Claimant refers to, the protections in the original Regulations are important ones. 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 of protecting vulnerable children. Each has been introduced over time precisely because of the risks that LACs face and the need for safeguards to be in place.
  4. Having accepted this, I do not need to go back through each of the Regulations to highlight the importance of the particular safeguard because I view each of them to be very important, albeit in different ways.
  5. However, in judging the lawfulness of the consultation I start with the comments of Lord Reed in Moseley at [36] that the duty to consult may “vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is carried out”. The statutory duty here does not apply to the majority of the impugned regulations but, in any event, is only that the Defendant shall consult such persons as he considers “appropriate”. There is a practice of consulting with children’s rights interest groups, including the Children’s Commissioner and bodies such as the Claimant, and with children directly, on changes such as those introduced by the Regulations. However, I accept that any legitimate expectation, certainly to the Claimant, goes no further than the statutory duty. Therefore, there is a duty on the Defendant to consult appropriate persons in the sector, subject to a rationality challenge. The scope of that duty must depend on the circumstances at the time.
  6. The Defendant’s position is that he was concerned to discover through the consultation what urgent changes were needed by providers to make sure that they could continue to deliver vital services to protect children. This was in the face of the pandemic and in particular the very high staff shortages, including lack of foster carers, that were being predicted. Therefore, the Defendant was entirely focused on asking that question of the people who were providing the service. I accept that there is inevitably another side to that question which is what is the impact on children of introducing flexibility. In normal circumstances there can be no possible doubt that the Defendant would have had to ensure that he was consulting a range of people in order to ensure that he was getting a full answer to the question posed. In particular I have no doubt that in normal circumstances he would have been under a duty to consult the Children’s Commissioner whose very statutory purpose was to put forward the views of children and promote their welfare.
  7. Although the Children’s Commissioner was not a party to the action and did not intervene, I accept that the Claimant can raise a failure to consult the Commissioner as an error of law. That argument succeeded in R (C) v Secretary of State for Justice [2008] EWHC 171 where the Claimant successfully raised an argument that the Children’s Commissioner should have been consulted, and was upheld on that point in the Court of Appeal, [2008] EWHC Civ 882, with the Court of Appeal finding the relevant regulation should have been quashed.
  8. However, there are two interrelated reasons why I do not consider the Defendant erred in law here in the consultation. Firstly, these were not normal times and the sector was facing an unprecedented crisis that would impact on the welfare of LACs. The Defendant had to make very quick decisions to protect those children in as effective a way as possible. To do that it was reasonable to focus on the providers of services to explain what they thought was needed in the very short term.
  9. Secondly, those providers were themselves considering the welfare of the children they were caring for. I entirely accept the Claimant’s case as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children. There will in some cases be a conflict between the wishes and interests of providers and those of LACs. However, that is not to say that the providers who were consulted were ignoring the need to protect the children and continue to seek to protect their welfare. This is shown quite clearly by the ADCS using a RAG rating of the Regulations in order to understand which were the most important to safeguard children. This is not a situation where the interests of the children were simply not taken into consideration through the consultation.
  10. I agree with the Claimant that the Children’s Commissioner could have been consulted. Although matters were urgent there was time for many providers and not just local authorities to be consulted. There is no evidence that there was a positive decision not to consult the Commissioner but Ms Ward could give no very clear explanation as to why the Children’s Commissioner was not consulted save that the focus was on those providing services. In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted. However, given the very particular focus of what the Defendant had to decide in amending the 2020 Regulations, the extreme urgency and the scale of the issues facing the Defendant in March-April 2020, I do not think there was an error of law in not consulting either the Commissioner or the Claimant. Although the comment in R (Christian Concern) v Secretary of State for Health [2020] EWHC 1546 about the circumstances of the pandemic potentially overriding any legitimate expectation were obiter, it is in my view apposite. A legitimate expectation that arose in normal circumstances would not give a right to consultation in the circumstances of dealing with the pandemic in Spring 2020. In terms of conducting a fair consultation I do not consider that something had gone clearly and radically wrong in the consultation.
  11. On Ground Two, in my view the Defendant was seeking to promote the policy and objects of the legislation and to promote the welfare of children. What needs to be borne closely in mind is the interests of the LACs as at March-April 2020. In the face of a major crisis in the whole system of children’s social care services because of the large scale staff shortages feared, if flexibility had not been introduced then the risks to the LACs could have been much greater than the risks from the amendments introduced by the 2020 Regulations. The amendments were considered by the Defendant to be an important way of protecting the welfare of the children in the circumstances of the time. The fact that the flexibility introduced was to important safeguards does not mean that the flexibility was not itself protecting the children.
  12. The Claimant, and many others, disagree with the balance that the Defendant struck but that does not mean that that balance is unlawful. The 2020 Regulations were intended by the Defendant to promote the purpose of the legislation, namely the promotion of the welfare of LACs, and the way that the Defendant sought to do it was not irrational.
  13. Further, in judging the rationality of the way the Defendant decided to promote the statutory purpose, it is relevant to take into account the Guidance that the Defendant introduced. This stated that the flexibility in the Regulations should only be used where strictly necessary and where the need stemmed from the pandemic. It is also relevant that the amendments only took effect for a relatively short period (6 months) and was subject to review by Ofsted.
  14. For very similar reasons I reject Ground Three. The Claimant argues “there is nothing to suggest that the Defendant had in mind the need to promote the welfare of children when the [Regulations] were made“. I agree with Ms Ward that this argument has an “air of unreality” about it, as was said in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2019] 1 WLR 4105 at [169]. The very reason the Defendant was promoting these 2020 Regulations was to protect LACs who were at risk because of the consequences of the pandemic. There is no inconsistency in the Defendant promoting regulations which lessen the protection of LACs by introducing flexibilities in the context of a pandemic which poses much greater risks to those children if there are no flexibilities.
  15. I understand the Claimant’s concern that in different circumstances the Defendant might have sought to introduce similar flexibilities in order to reduce the protection of LACs. However, that is to ignore the very particular challenge faced by the Defendant in the children’s social care sector in Spring 2020.
  16. In that context the Defendant did take into consideration the section 7 duty and I reject Ground Three.