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22 September 2020

R (on the application of article 39) V Secretary of State for Education (2020)

A recent case on the lawfulness of the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the regulations) may give some insight into how the courts will approach regulations made to address the COVID-19 pandemic and, in particular, the duty to consult in the context of a national crisis.

Background to the case

The regulations were created as a temporary measure to protect the needs of looked-after children in the context of the COVID-19 pandemic. Article 39, a charity supporting children in institutional settings, brought a judicial review challenging the regulations saying that they undermined statutory protections for looked-after children, they were disproportionate and that there had been a failure to consult. The Secretary of State had consulted 20 local authorities, Ofsted and the Care Quality Commission but not the Office of the Children’s Commissioner. It was Article 39’s view that the Children’s Commissioner should have been consulted.

Lieven J’s judgment

Lieven J emphasised in her judgment that the Secretary of State faced an unprecedented situation at the start of lockdown, and that his decisions had to be understood in that context. The Scientific Group for Emergencies (SAGE) had advised the government to plan for all eventualities and the Secretary of State had prepared for a realistic worst case scenario of significant numbers of absences (between 35% and 41%) of social workers from work. Although that rate of absence did not arise in practice, the fairness of the consultation had to be considered in light of the advice the Secretary of State had received and the worst case scenario planned for. Other important factors were that the sector was operating below optimum staffing levels even prior to pandemic and the risks to the welfare of foster carers, who are more likely to be older and more vulnerable to the virus as a result.

The court found that the duty to consult was context-specific. In this case it was the Secretary of State’s statutory duty to consult such persons as he considered appropriate. In normal times he would have been duty bound to consult the Children’s Commissioner – but these were not normal times.

Although there was no clear explanation as to why the Children’s Commissioner was not consulted, there was no evidence of a decision not to consult and, given the context, the failure did not amount to an error of law. The Secretary of State’s intention was to promote the welfare of looked-after children and his plans to carry out that intention were not irrational. It was also relevant that guidance provided that the flexibility offered by the regulations should only be used where strictly necessary, the amendments took effect for six months and were subject to review.

What can we take from the case?

Given the unique circumstances facing the country in March 2020, the government had to make decisions quickly to accommodate changes necessary to mitigate the pandemic. This case suggests that the courts may be more understanding of the government’s need to respond quickly and will consider consultations undertaken at the height of the pandemic in that context. This could mean, as perhaps happened in this case, that consultations conducted in a national crisis, and which would, at any other time, have been found to be unlawful, are given a clean bill of health.

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