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The High Court has declared that the Welsh Government breached its own landmark child rights legislation when it decided, last summer, no longer to fund the provision of free school meals during school holidays.
At the height of the Covid pandemic, the Welsh Government decided to fund free school meals for eligible children during school holidays. The funding continued beyond the end of the pandemic to support families during the cost-of-living crisis. However, on 28 June 2023, the Welsh Government announced that it would not be funding the policy during the forthcoming six-week summer holidays due to budgetary pressures.
Two families who were significantly impacted by this announcement brought a claim for judicial review challenging its lawfulness. They were represented throughout by the Public Law Project. In a consent order approved by the High Court in Cardiff ahead of a hearing this week, the Welsh Government has accepted that the decision was unlawful on two grounds.
First, the Welsh Government has accepted that, when it took the decision, it failed to comply with its duty under s. 1 of the Rights of Children and Young Persons (Wales) Measure 2011 (“the 2011 Measure”) to have due regard to the requirements of Part I of the UN Convention on the Rights of the Child. These requirements include having regard to the best interests of children as a primary consideration when making decisions (art. 3) and recognising the right of every child “to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” (art. 27).
Secondly, the Welsh Government has conceded that its decision to discontinue funding also failed to comply with its public sector equality duty under s. 149 of the Equality Act 2010. This duty required Ministers, when making the decision, to have due regard to the need to eliminate discrimination and advance equality of opportunity between people who have protected characteristics and those who do not.
This is the first time that a court has found the Welsh Government to be in breach of its principal duty under the 2011 Measure. Wales became the first nation in the UK to integrate the UN Convention on the Rights of the Child into domestic law when it passed the 2011 Measure.
After the proceedings were issued, the Welsh Government made a further decision in October 2023 to discontinue the funding.
Gwion Lewis KC, instructed by the Public Law Project, acted for the successful claimants, alongside David Gardner of No 5 Chambers. BBC News reports on the case here. The Public Law Project provides more background here.
