Thread by @BenTwomeyNYAS

Taking my (virtual) seat in the courtroom now. Shortly the High Court will begin to hear @article_39's case that Statutory Instrument 445 was made unlawfully.

Proud that @NYASServices helped fund this challenge & I'll tweet updates throughout, watch this space.

#ScrapSI445

The High Court Judge will begin proceedings imminently in @article_39's case that SI 445 was made unlawfully.

In the meantime, read the latest extraordinary twist in this deeply concerning experiment with children's rights ⬇️⬇️

#ScrapSI445

nyas.net/uk-government-…

Opening remarks now being made, hundreds of pages of evidence being referred to, including that the call by @article_39 for SI 445 to be scrapped is shared by the @ChildrensComm and the two former Children's Commissioners for England.

"Although it is @article_39 that brings this case, Article 39 is not a lone voice in the sector."

Absolutely right, @NYASServices stands shoulder to shoulder in the campaign to #ScrapSI445, as do countless others incl. @BASW_UK @nagalro @N_A_I_R_O @Justforkidslaw @Become1992

Jenni Richards QC, from @39PublicLaw, argues that it is not possible to pinpoint when the government began considering the apparent need for SI 445. Only in mid-March did we start to see engagement between the government and certain select partners about these regulations.

Now arguments being put forward about the headings summarising SI 445 pre-publication, where there is nothing discussing 'impact' or 'safeguards', but perhaps the closest example might be 'unintended consequences'.

#ScrapSI445

Jenni Richards QC creating a narrative for the court through the hundreds of evidence papers being put forward. Now questioning why amendments to the law expressly prioritised those relating to rights of individuals, rather than just the smooth running of administrations.

By time the gov't Minister for Children and Families was asked to agree to changes made in SI 445, Jenni Richards QC argues that there was still little evidence of consideration of impact on children in care or entering care.

#ScrapSI445

Jenni Richards QC argues that it is in disingenuous for the government to claim that it had no opportunity to consult children on SI 445...

Now discussing the 'consultation' outcome internal paper by the DfE - notes that Children's Commissioner was 'informed', not consulted. Argued that there is no reference whatsoever in the 'impact' section of that document about the impact on Looked After Children.

Jenni Richards QC puts forward that SI 445 is all about asking local authorities what would be helpful for them, and in no meaningful sense considers what would be helpful to a looked after child.

#ScrapSI445

Government chose not to issue their guidance relating to SI 445 as statutory guidance. This is what sets out the advice to local authorities to only use SI 445 where it is needed, but there is nothing in the legislation itself relating to that.

Discussion of specific SI 445 amendments that exemplify the potential safeguarding impact.

Focusing now on how changes permit children to be:
1⃣ moved out of area;
2⃣ to live with not fully approved foster carers;
3⃣ without the approval of a nominated officer.

#ScrapSI445

Focus now on types of placements and role of the nominated officer, includes reference to evidence from @FamilyRightsGp. This highlighting the tension between government claims that SI 445 amendments were "temporary", when they in fact impact life-changing decisions for children.

SI 445 removes the right for a child to see a social worker in any given timescale. Jenni Richards QC highlights the importance of social workers visits to safeguard children.

The Hon. Judge refers to the "scandal" of 6,000+ children being placed in #unregulated accommodation, but notes this is not affected by SI 445.

Jenni Richards QC argues there is no evidence that local authorities were unable to meet their statutory duties due to COVID-19.

This gets to the heart of the government's own justification for limited consultation and publishing SI 445 just a day before it came into force.

SI 445 changes independent persons' visits to children's homes from an absolute duty to a reasonable endeavours obligation. This removes a safeguard that was established in response to widespread abuse in children's residential care. Powerfully set out in @article_39's statement.

Jenni Richards QC turns to the first ground of the challenge to #ScrapSI445: Consultation.

Central complaint on this ground is that the gov't conducted a one-sided consultation in its entirety.

Discussion now of the #Gunning principles - what is needed for lawful consultation.

Underlying principle is one of fairness, and Jenni Richards QC quotes case law that says people should be consulted when something is being taken away from them (in this case, children's rights).

BREAK - court breaks for an hour. Session reconvenes at 2pm.

A solid two and half hours of arguments already put forward by Jenni Richards QC of @39PublicLaw on behalf of claimant @article_39.

Thanks for following the thread so far, please RT & join the discussion #ScrapSI445

And we're off again in day one of this High Court Judicial Review: @article_39 brought case that the UK Government's introduction of Statutory Instrument 445 was unlawful.

Points of clarity now considered from this morning. Jumps from p.758 to p.242 = level of detail we're into.

Picking up where we left off, Jenni Richards QC is continuing to pick holes in the gov't consultation (or lack thereof) for SI 445.

Argument that it was irrational of the gov't not to consult with any organisations that specialise in promoting voices of children in care.

A duty to consult can also arise from "conspicuous unfairness" or "irrationality".

Jenni Richards QC argues that these were plainly changes that would impact children in care, and to not consult with bodies acting in their interest was unfair, irrational and unlawful.

The Hon. Judge is uncomfortable with framing of local authorities as a body that does not act in the interests of children.

Challenge given around whether an L/A has best interests of children at heart and therefore consulting with them & not wider could be considered enough.

Jenni Richards QC follows this up that this is not about 'conflict' (between local authorities and children's best interests), but instead about different interests.

This will likely be a vital point in deciding the if the consultation will be found to be unlawful.

#ScrapSI445

Jenni Richards QC continues to slam the consultation - no evidence for why children's commissioner bypassed. Process totally lacking in transparency, in which local authorities could not consult with their care leaver forums or children in care councils because of undue secrecy.

Long discussion of unlawful failure to consult. In sum:

1⃣ Why wasn't the Children's Commissioner consulted?
2⃣ Why were children in care or entering care not consulted?
3⃣ Why was the consultation one-sided?

Case made w/ links to principles/precedents/statutory requirements.

Jenni Richards QC moves on to the second set of grounds - diluting safeguards contradicts duties and principles found in the Children Act & other legislation, to promote the best interests and wellbeing of children.

Briefer discussion than first grounds, but may be returned to.

Now on to the third set of grounds - Jenni Richards QC takes aim at the Secretary of State for Educations s.7 duty to promote the wellbeing of children.

Argument that Sec of State didn't have regard to wellbeing of children - the Hon. Judge pushing back against this possibility.

Jenni Richards QC says there is no evidence that the Sec of State for Education gave conscious regard to impact to welfare incl. emotional, physical and mental wellbeing.

Crucially the Children's Rights Impact Assessment came AFTER the decision of Sec of State to approve SI 445.

Argument that Sec of State failed to consider the affect on children in care and their welfare/safety should their safeguards be removed as they were in SI 445.

"He did not have that information, and he did not have regard to it as a result."

#ScrapSI445

After over three hours of argument from Jenni Richards QC on behalf of @article_39, in her concluding remarks she asked for Statutory Instrument 445 to be quashed.

The case for the defence will now be made by Galina Ward, representing the Secretary of State.

Galina Ward begins by arguing that both sides in this case want the same thing - the best care for children at all times.

The Hon. Judge agrees that these regulations were not made with the hindsight of what we know now, putting the case for SI 445 in context of its time.

Defence argues that SI 445 was ensuring the system of children's care continues to function during COVID-19. Gov't considers that self-evidently to be in the best interests of the children who benefit from that system.

Part of this case could hinge on if this is 'self-evident'.

Galina Ward presents results from gov't and Ofsted monitoring of SI 445 uses, claiming that they have been used only where necessary, in line with the Sec of State's intention.

The Hon. Judge urges caution as Galina Ward accepts that this is not a 100% return from L/As.

At best, the gov't monitoring is being accepted as 'indicative' rather than conclusive - but Galina Ward presses that it can be considered indicative "and consistent", citing Ofsted monitoring.

NB efficacy of review of SI 445 may affect judgement around duty to promote welfare.

Into detail of specific SI 445 regulations now. The Hon. Judge describes #AdoptionPanels as an incredibly important safeguard, critiquing the defence's distinction between administrative and substantive safeguards.

Can be inferred that all safeguards are there to safeguard...

Turning to Nominated Officers now, the Hon. Judge describes statutory authority of more senior officers as "a lot more than a nice-to-have".

Galina Ward replies 'using' some amendments requires approval by senior officers, which she argues ensures proper senior level oversight.

A point the defence keep returning to:

"These regulations were not made for ordinary times".

NB not raised in this session, but the COVID-19 justification is not accepted by many in the children's rights sector - we've seen changes like these before ⬇️

cypnow.co.uk/opinion/articl…

A vital point of safeguarding being explored. The Hon. Judge points to how the layering of dilutions could very seriously undermine protections for children.

Guidance on L/As risk assessing children when regulations are used, is just that - guidance. Not in the legislation.

Lengthy discussion of amendments to regulations around 'short breaks' for children in care.

Defence sets out intricacies of whether SI 445 applies to which groups of children for what time.

NB immensely confusing even for lawyers/judge - how can children know their rights?!

Defence now discussing difference between 'reasonable endeavours' vs 'best endeavours' duties.

Defence argues 'reasonable endeavours' is not a weak duty, but the only possible step down from an absolute duty. This is repeated phrasing throughout SI 445.

#ScrapSI445

Gov't principles for circumstances in which L/As may wish to make use of SI 445 - overarching approach is to be agreed at chief officer level, and use of 'flexibilities' should be recorded, reviewed continuously and shared with Ofsted.

NB guidance again! 'Should', not 'must'.

The Hon. Judge presses this exact point, why wasn't the guidance with SI 445 statutory? (ie a legal duty). Reason given by the defence is about timing, because the COVID-19 emergency did not allow time for this.

Expect this to be another sticking point for any judgement...

That's it for today - thanks for following and see you back here at 10:30am for final morning.

Please RT/comment on this thread to join the discussion - I'll start a new one tomorrow.

In the meantime, support the #ScrapSI445 campaign? Sign the petition!

you.38degrees.org.uk/petitions/defe…