Thread by @JenDownieNYAS

Starting shortly - @article_39 v Secretary of State for Education, in the Court of Appeal. Have children’s rights been removed or diluted unlawfully?

Follow this thread for my live #OpenJustice reporting. To recap, watch & RT my video summary of the #ScrapSI445 journey so far.

And we’re off, virtual courtroom again. A few differences to the High Court session:
✅ 3 judges instead of 1. Lord Justices Underhill, Henderson & Baker.
✅ 1 day instead of 2.
✅ There is now a judgment (below) to work from, alongside evidence bundles.

article39.org.uk/2020/08/07/hig…

Lord Justice Underhill asks whether this case is considered 'academic' - that will be revisited towards the end of Jenni Richards QC's arguments on behalf of @article_39.

This is about whether the issue is still 'live' as most SI 445 regs are due to be withdrawn on 25 Sept.

Other opening issue to be considered is 'relief', the fundamental question of what @article_39 are seeking should it be judged that SI 445 was made unlawfully.

More complex than it sounds, discussing possible wording and what that could mean for opening further litigation.

Both 'relief' and whether the case is 'academic' will be considered in depth later, as will 'cost capping' (Article 39 as a small charity has taken on considerable financial risk to stand up for children's rights in court).

Jenni Richards QC now begins to set out her argument.

This case is all about consultation, so naturally the argument begins with a narrative description of who was consulted on SI 445 and when.

Illustrating that consultation was "extensive" but "effectively all from one perspective".

Jenni Richards QC sets out that:

❌NONE of the consultation on SI 445 was with the children's commissioner.

❌NONE of the consultation was with any organisation or charity that represents the views, wishes and feelings of children.

Who might customarily be consulted but was not?

@A4CinCare Alliance for children in care and care leavers,(here I claim an interest - as co-chair!).
@Become1992
@NYASServices (interest again - my charity!)
@Tweets_ALC
@NIROMP2
@N_A_I_R_O

All have spoken out against SI 445.

Wouldn't expect all of these organisations to be consulted, but this is the "omission of an entire sector" from the consultation, according to Jenni Richards QC.

Dual-track legal arguments here -

1⃣ Statutory duty to consult (which the Children's Commissioner argument could hinge on).

2⃣ Common law duty to consult (within which is situated the wider question of whether an entire sector or perspective was or can be ignored).

Lord Justice Henderson asking if there really is any common law duty to consult.

The judges have probed who was or wasn't consulted, but now asking whether it matters anyway, if the gov't did not have a duty to consult them. I expect this point will be returned to later.

When SI 445 was consulted on (and a theme as it was introduced too), the removal/dilution of children's rights and protections were characterised by gov't as:

"Minor changes"
"Relaxing minor burdens"
"Some small procedural changes to ease burdens"

The Children's Commissioner for England has not had a role in the litigation leading to this Court of Appeal session today. However, Anne Longfield has been vocal in calling for SI 445 to be withdrawn.

This self-evidently has not prevented @article_39 bringing the case.

Turning again now to consultation duties - the crux of the entire case. First, to a point of case law.

"Whether or not consultation is a legal requirement, if it is embarked upon, it must be carried out properly and fairly." (case law from Court of Appeal)

Further case law:

"Where a public body has a duty to consult, they must address the question of who they must consult, and form the view that they are the appropriate consultees" - that decision is one amenable to challenge on ordinary Judicial Review principles of rationality.

The term 'irrational' as a legal principle could be vital in light of the case law quoted above.

Was the decision of who to consult 'rational', when it omitted the Children's Commissioner and, in the words of Jenni Richards QC, "an entire sector"?

Another case is cited where the failure to consult the Children's Commissioner led to the Court of Appeal quashing regulations. In that same case, the Secretary of State mis-represented/misunderstood the nature of the changes they had made.

Relevant to SI 445 'burdens' debate.

The 'burdens' debate (!) is how the Education Secretary & his department characterised SI 445 as "easing administrative burdens" from a public sector perspective, rather than noting it's impact on safeguarding/rights. This was criticised in the High Court judgment being appealed.

Argument relying on 1/3/4 of the four main circumstances creating a duty to consult:

1⃣ Statutory duty
2⃣ Promise to consult
3⃣ Where there is an established practice of consultation
4⃣ In exceptional circumstances where a failure to consult would lead to conspicuous unfairness

Getting into detailed mechanics of consultation process now. Referring to case law that gives prominence in judgments to decisions and issues that affect highly vulnerable children. This heightens the need to demonstrate 'fairness', as well as pointing to a duty to consult.

Lord Justice Underhill concerned that Jenni Richards QC is conflating 'rationality' and 'fairness' tests.

Suggests there is no dispute as to whether there was a duty to consult, as there was a consultation. Again, judges probed for more detail before asking if relevant at all...

It seems to be set out now that there was a duty to consult. Which will put the argument back on to the track of why that consultation itself was unlawful.

Inevitably, this leads to the statutory functions of the Children's Commissioner for England - who was not consulted.

Could be hints of a split between the Lord Justices here.

One suggesting there is no dispute of the duty to consult, as there was a consultation. Another, wondering if no duty to consult limits need to consult widely.

But, if you choose to consult, it must be fair & lawful.

Now that Jenni Richards QC feels confident she has demonstrated the statutory duty, she moves to the decision of who is consulted. This is based on a public law 'rationality' test.

That's where a decision should have been made to consult with those speaking for children.

Lord Justice Baker highlights some of the gov't reasons for not consulting Children's Commissioner:

⏰No time.
🏫Priority to make sure services didn't become overwhelmed.
🦠Objective was to identify flexibilities so that services could carry on if pandemic crisis deepened.

Jenni Richards QC addresses each point in turn. There was a month between consultation representations being made and SI 445 being introduced. The gov't does not dispute this.

Context of "securing flexibilities" is as a matter of fact removing safeguards. Need to look at impact.

First significant mention now of SI 445 being 'temporary', and whether this has a bearing on the lawfulness of partial consultation. Regs due to lapse on 25th Sept.

But, in the course of six months of SI 445, life changing once-only decisions have been and are being made.

Concluding w/case law pointing to:

Principles of duty to consult and how to consult fairly/rationally.

Context of highly vulnerable cohort of children.

Statutory role of Children's Commissioner.

Significant nature of changes mis-characterised by gov't as 'easing of burdens'.

Jenni Richards QC getting stuck into the High Court judgment which is today being appealed. One reason that SI 445 found to be made lawfully was due to "timing" because of pandemic.

This has already been addressed, but the gov't doesn't appear to now dispute that there was time.

The second reason for the High Court judgment was that local authorities could represent views and best interests of children. But this expectation is not evidenced in any of the consultation correspondence.

If L/As had this role, why would we have a Children's Commissioner?

Argued that the Education Secretary never heard the contrary view of the impact on children (as opposed to the impact on care providers/local authorities/inspectors).

While the High Court challenged the characterisation of safeguards as 'burdens', the chosen consultees did not.

Discussion now on to whether this case is 'academic' (ie not with current real world implications).

Judges keen to understand what the level of 'usage' of SI 445 has been. Legislation remains in force, but Education Sec recommended local authorities against use recently.

Government monitoring of SI 445 had 'returns' from less than half of local authorities. These returns showed a low number of SI 445 'flexibilities' being used by a low number of local authorities. However, impossible for the court to know extent of use with majority unreported.

"A dangerous and wrong precedent has been set" by not consulting the Children's Commissioner about SI 445.

This is the final point made by Jenni Richards QC in support of the appeal in @article_39 v Secretary of State for Education.

Break now, after which we'll hear from Clive Sheldon QC on behalf of the Secretary of State for Education.

Expect probing on why the Children's Commissioner was not consulted, whether there was a duty to consult her, and if it was 'rational' not to do so. See you in an hour!

Clive Sheldon QC on behalf of Education Secretary, invites the court to dismiss the appeal. Key points:

1⃣ Context (pandemic).
2⃣ No duty to consult the Children's Commissioner and/or Article 39.
3⃣ If there was a duty to consult, there was no breach.
4⃣ Appeal is 'academic'.

"In law context is everything", sets up the opening government response to the appeal. Cites the Education Sec facing exceptional circumstances that had never been seen before. The Education Sec was compelled to prepare for significant rates of staff sickness & family illness.

Lord Justice Baker points out the system of children's social care was under huge pressure already (pre-pandemic).

As an aside, worth noting the 'context' argument could be interpreted either way - any sense to remove safeguards in the pandemic that are vital in normal times?

Clive Sheldon QC argues that risks to children in care and entering care would have been far higher had the 'flexibilities' in SI 445 not been introduced to maintain stability of the system as a whole.

Lord Justice Baker asks why not hear from children's rights representatives.

Lord Justice Underhill raises Jenni Richards QC's point that these 'flexibilities' reduce safeguards. He repeats Lord Justice Baker's last point.

Clive Sheldon QC says Children's Commissioner called SI 445 regs "not needed", & suggests she therefore ignored the context reality.

Clive Sheldon QC:

"Secretary of State formed the view that it was appropriate in the circumstances to consult the service providers, care providers and regulators. Although it may have been helpful to hear from Children's Commissioner, it was not necessary."

Lord Justice Baker asks again why the Children's Commissioner was not consulted. Judges do not appear to be convinced at this point by the 'context' argument.

Unsure of the High Court judge's finding that local authorities can also represent views/best interests of children.

It is put forward that the Secretary of State for Education "reasonably formed the view" that it was not necessary to consult the Children's Commissioner.

Lord Justice Baker asks about purpose of Children's Commissioner. Introduced because "the child's voice needed to be heard."

Clive Sheldon QC argues that the Secretary of State was seeking views on how services could continue to provide their service. Argues that the Children's Commissioner could have "limited insight" into answering that question.

Lord Justice Baker says this is partial question.

Lord Justice Underhill points out the catch 22 that I highlighted during the High Court session - the more the gov't argues that it consulted widely, the stranger it seems that the Children's Commissioner was excluded.

Now being argued that the Children's Commissioner was not consciously excluded, nor was she consciously included.

[If you're lost on that point, it certainly is baffling - we've just been hearing how the Secretary of State deemed it not necessary to consult the Commissioner...]

Clive Sheldon QC raising again that the Children's Commissioner is not involved in this litigation. Also argues that the Commissioner's statements did not protest that she had not been consulted.

Ironic that what the Commissioner hasn't said is being used to build gov't case...

Moving on from context now, to the argument over whether there was a duty to consult the Children's Commissioner.

Statutory duty says "The Minister shall consult any persons that he considers appropriate". This invokes the public law 'rationality' test, discussed earlier.

Gov't case puts forward "There is no statutory duty to consult the Children's Commissioner on each and every measure that affects children." It is not in Children's Act 2004, which introduced the role.

Case law being presented which concluded there was no statutory duty.

Argued that the Dunford Report in November 2010, which reviewed the Children's Commissioner role, specifically considered whether there should be a duty to consult them on policy and legislation affecting children. Decided against duty - see pg.38 here:

assets.publishing.service.gov.uk/government/upl…

The Dunford Report has been brought in as evidence despite not being referred to in any bundles by appellant or respondent. This is irregular, but the judges may permit it to be considered if they give Jenni Richards QC the opportunity to comment later today.

Clive Sheldon QC trying to say that the Children's Commissioner focus only really emerged during the High Court session, rather than beforehand.

Lord Justice Underhill has checked back to original skeleton arguments and finds plenty of focus on this, including in the grounds.

Moving on now to discuss the 'established practice' of consultation. Clive Sheldon QC argues is that it is not the invariable practice to consult the Children's Commissioner on policy changes.

Lord Justice Underhill not allowing 'invariable' to be conflated with 'established'.

Clive Sheldon QC asked to accept as a matter of principle, that it will be unlawful if someone is excluded irrationally from consultation. Gov't relying on conclusions in the High Court, where SI 445 was judged lawfully made, largely due to allowances for the pandemic context.

"Obviously there was time" to consult the Children's Commissioner, concedes Clive Sheldon QC. Lord Justice Underhill debating the idea that 'extreme urgency' from the pandemic is relevant context here, as it seems there was indeed enough time to consult one more person/org.

Nearing the closing arguments now for the Secretary of State - argued that if it is deemed that the context does not justify not consulting, that there was a duty, and that the duty may have been breached...then there is provision for the Minister to override those duties.

The duties can be overridden if the court can judge that what has been done has been fair.

The 'fairness' test, as mentioned, is separate to the 'rationality' test. Lord Justice Henderson asks if duty proven & breached and context not enough, then how could decision be fair?

Answer to that from Clive Sheldon QC, is that it would be fair for the Secretary of State to override any legitimate expectation (if proven) to consult the Children's Commissioner. Argued that this would not constitute an abuse of power, given context of pandemic.

Other elements mentioned are that SI 445 was 'temporary', 'accompanied by guidance', with a 'review mechanism', 'to be used exceptionally'. These points were covered previously by Jenni Richards QC, so it now depends which interpretation best convinces the judges.

Closing arguments on behalf of the Secretary of State, Clive Sheldon QC argues that this is 'academic' - if the judges agree with this then even if the consultation is found to be unlawful, SI 445 may be allowed to continue in place until 25th Sept (assumed it has little impact).

Gov't counsel argues that the Court of Appeal does not need to make a judgment on the circumstances in which the Children's Commissioner must be consulted in the future. Instead, their judgment will be for the specific context of SI 445 in Spring 2020.

Gov't fear of precedent?

Astonishing twist - Clive Sheldon QC now arguing that the Children's Commissioner would not have had an impact on SI 445 even if she had been consulted. This is because her later public statement was that SI 445 was not necessary and if anything, more protections were needed.

The submission is that the Children's Commissioner was not understanding the pandemic context, and would not have been realistic in her submission had she been consulted.

I wonder if the Children's Commissioner is now regretting not being a party to this case...

Back to Jenni Richards QC now, on behalf of @article_39, who is asking the court to make a declaration that the consultation was unlawful.

No way of knowing the Children's Commissioner's consultation submission (given the chance) would have matched her actual public statement.

Jenni Richards QC says it is remarkable to think that the Secretary of State's case is that there is nothing that the Children's Commissioner could have said (if consulted) that would have been valuable to inform decisions relating to children and their safeguards.

Both parties have put in the work to undermine the relevance of case law that their opposite numbers have brought forward. Will be interesting to see which cases the court decides will inform their judgment.

Jenni Richards QC concludes with a tour de force of all the reasons that the Children's Commissioner could and should have been consulted.

The case of course rests on whether it was lawful not to consult.

COURT CLOSED - that's it for @article_39 v Secretary of State for Education in the Court of Appeal. The judgment will not be made this week, I'll share as soon as I know.

Thanks for following my live tweeting. Please RT/comment for a spotlight on children's rights.

#ScrapSI445