On 7 August 2020, Lieven J handed down judgment in R (Article 39) v Secretary of State for Education  EWHC 2184 (Admin), a challenge brought by Article 39, a children’s charity, against the Adoption and Children (Coronavirus) Amendment Regulations 2020 made by the Secretary of State for Education.
The regulations, which came into force on 24 April 2020, introduced a number of ‘flexibilities’ by amending certain requirements imposed by secondary legislation in the children’s social care field, due to concerns that services would be overwhelmed as a result of the pandemic. The claimant criticised in particular amendments that related to adoption panels, out of area foster placements, fostering for adoption placements, short break placements; and timescales for social worker visits, statutory reviews of children-in-care’s welfare and visits by independent persons to children’s homes. The regulations were temporary in nature and automatically expire on 25 September 2020. The Secretary of State carried out an abbreviated consultation exercise, focusing on providers and local authorities.
The claimant challenged the entirety of the regulations on the basis of (1) a failure to consult adequately, (2) a breach of the Padfield principle and (3) a failure to promote the well-being of children as required by section 7 of the Children and Young Persons Act 2008.
Lieven J dismissed the claim on all grounds. The judge noted that the protections removed by the regulations were important; but that, when making the regulations in March and April 2020, the Secretary of State was facing an unprecedented situation, with the official advice indicating a realistic worst-case scenario of social worker absences through sickness from Covid-19 of 35-41% and an excess death toll of 828,000. The Secretary of State, Lieven J noted, was obliged to be planning for that scenario and the fairness of any consultation had be judged in that context. As to the second and third grounds, Lieven J held that, once the context, and the aims of the Secretary of State in seeking to ensure the children’s social care field could continue to function in the event of a worst-case scenario, were appreciated, these grounds also fell to be dismissed.