Skip to main content

Article 39 Court of Appeal judgment. DoE is NOT seeking to appeal.

Article 39 Court of Appeal judgment. DoE is NOT seeking to appeal.

‘The Adoption and Children (Coronavirus) (Amendment) Regulations 2020’ -statutory instrument: no 445

11 December 2020 (Last updated: 11 Dec 2020 17:39)

The Court of Appeal found the Secretary of State for Education to have acted unlawfully in removing safeguards for children in care by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020, known as Statutory Instrument 445. In particular, we take a closer look at how the unfulfilled legal duty to consult arose in both statute and common law.

Nagalro is a member of the steering group organised by Article 39 and was fully behind their campaign Scrap SI 445 to get the regulations withdrawn.  To remind you:  These regulations came into effect on 24 April without any Parliamentary scrutiny and debate.

  • Over 54 organisations and over 450 individuals have now indicated their support for the Scrap SI445 campaign on the Article 39 website,social%20care%20regulations%20were%20made.
  • Article 39 was granted permission for a judicial review of the Department for Education’s removal and dilution of children’s legal protections pushed through overnight in April, under the guise of COVID-19. Given the seriousness of the legal changes, and the vulnerability of the affected children, Article 39 asked the court for the case to be expedited; this has also been agreed and the High Court hearing will take place on 27 and 28 July

    The High Court granted permission for judicial review on three separate grounds:
    1. That the Department for Education failed to consult before making the changes to children’s legal protections;
    2. That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
    3. That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

  • A total of 44 MPs have now signed Early Day Motion 422 tabled by Keir Starmer MP.
  • On Wednesday June 10 there was a debate in the House of Commons on the motion to annul the SI.  
  • The '38 degrees' petition calling for the scrapping of the SI has now attracted over 17400 signatures
  • Article 39 launched a fund raising appeal to raise funds to meet some of the legal costs associated with the JR. Thetarget of  £8,000 has been met. Thanks to all those who have contributed.  For further information see
  • A recent report by the House of Lords Secondary Legislation Scrutiny Committee made a number of concerning comments about SI 445 including :

'The Childrens Commissioner has a statutory duty to promote and protect the rights of the most vulnerable children.  Given the concern raised by the Children's Commissioner, and others, there must be at the very least some significant doubt as to whether the Department is right to assert that the changes are "minor in nature" and " do not constitute infringements on children's rights".  The House may wish to press the Minister for further justification of the need for this instrument and of why the Children's Commissioner was not consulted'.

  • A recent edition of Private Eye Issue no 1523 (5 June - 18 June) carried an article on page 11 relating to the Article 39 campaign


Historical details:  on 7 May Article 39  formally threatened legal action against the Department for Education, if it does not withdraw SI 445.

The letter before action claimed the government had acted unlawfully in its failure to consult on the changes and in not giving any time for Parliamentary scrutiny. The Adoption and Children (Coronavirus)(Amendment) Regulations 2020 (statutory instrument 445) remove or weaken 65 children’s safeguards, without any evidence of their connection to the current serious health crisis. Article 39 focussed their claim on six specific changes:

  1. The dilution of duties relating to social worker visits to children in care, where even a six-weekly telephone call is no longer mandatory;
  2. The removal of the duty to hold six-monthly reviews of children in care;
  3. The loss of safeguards for children placed out of area with people who are not connected to them;
  4. The loss of safeguards in relation to short breaks, particularly affecting disabled children; 
  5. The loss of independent scrutiny (pre-court stage) and other safeguards in adoption; and
  6. The dilution of the duty on children’s homes to ensure independent visits and reports on children’s welfare there.  

Article 39 is calling on the government to withdraw the statutory instrument with immediate effect and to give an assurance that any new regulations will be subject to proper consultation, Parliamentary scrutiny and children’s human rights and equality impact assessments.

The Children’s Commissioner for England was not consulted about the regulations and calls on the government to withdraw them. She says

‘I would like to see all the regulations revoked, as I do not believe that there is sufficient justification to introduce them. This crisis must not remove protections from extremely vulnerable children, particularly as they are even more vulnerable at this time.

You can read the full statement by Anne Longfield here:

Other key organisations in the children’s sector were only informed of, not consulted about, the changes.  Children's rights in care must be defended.

To read more and in particular the original article by Carolyne Willow from Article 39  ‘Ministers use COVID-19 to destroy children’s safeguards’ go to

In our view, these changes are not necessary and are not forced upon us by Covid-19. Vulnerable children should not be stripped of their most basic protections.

For further information about the campaign SCRAP SI 445 and to see the list of organisations and people supporting the campaign and to add your name  click here

Nagalro Council