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Buckle up for the second (& final) day defending children's rights in the High Court, beginning at 10:30am. /A THREAD/
Covering @article_39's case that Statutory Instrument 445 was made unlawfully by gov't.
Catch up on my thread from Day 1 here
https://twitter.com/BenTwomeyNYAS/status/1287663824905146369
Covering @article_39's case that Statutory Instrument 445 was made unlawfully by gov't.
Catch up on my thread from Day 1 here
https://twitter.com/BenTwomeyNYAS/status/1287663824905146369
Session picks up where we left off yesterday, with the defence barrister, Galina Ward, setting out the government position on @article_39's three grounds: (consultation / best interests / welfare).
A judgment is not expected today, but arguments should conclude around lunchtime.
A judgment is not expected today, but arguments should conclude around lunchtime.
Interesting that time taken by Galina Ward to 'reassure' the Hon. Judge that tackling unregulated accommodation for children in care is a departmental priority.
This follows the Hon. Judge's aside yesterday that current use of such accommodation is a 'scandal'.
This follows the Hon. Judge's aside yesterday that current use of such accommodation is a 'scandal'.
Turning now to the first grounds in this case - if the consultation for SI 445 was unlawful.
The Hon. Judge spells out her view that the most troubling aspect of this case in a legal sense is that the Children's Commissioner was not consulted.
#ScrapSI445
The Hon. Judge spells out her view that the most troubling aspect of this case in a legal sense is that the Children's Commissioner was not consulted.
#ScrapSI445
However, Children's Commissioner is not before the judge as a claimant or making any intervention in this case.
Defence reverts to argument that what is 'normally' done (ie Sec of State consulting Children's Commissioner) does not apply here - context of COVID-19 is not normal.
Defence reverts to argument that what is 'normally' done (ie Sec of State consulting Children's Commissioner) does not apply here - context of COVID-19 is not normal.
Argument hinging on 'legitimate expectation' for Children's Commissioner to be consulted now. Galina Ward argues there is no legitimate expectation in circumstances of a global pandemic.
Hon. Judge presses point, is there an explanation why @ChildrensComm not consulted...
Hon. Judge presses point, is there an explanation why @ChildrensComm not consulted...
The Hon. Judge questions whether consultation focused only on those that talked about necessity for SI 445, and avoided those that would talk about impact on children.
Question of why gov't had time to consult one set of bodies, but not another.
#ScrapSI445
Question of why gov't had time to consult one set of bodies, but not another.
#ScrapSI445
Fascinating that the more the gov't claims to have consulted widely, the more their argument suffers that there was not time to consult the Children's Commissioner.
Defence caught in a #catch22, facing questions of a conscious decision not to consult w/ Children's Commissioner.
Defence caught in a #catch22, facing questions of a conscious decision not to consult w/ Children's Commissioner.
Galina Ward now discussing those who *were* consulted. Local authorities were not speaking with one voice in their response to consultation on SI 445.
Defence argues that consultation led to changes to sections planned for SI 445, denying gov't mind was made up pre-consulting.
Defence argues that consultation led to changes to sections planned for SI 445, denying gov't mind was made up pre-consulting.
Getting a whirlwind tour by the defence of the correspondence from various organisations that gov't claimed to have consulted.
NB elephants in the room: Why not the Children's Commissioner? Why not the care-experienced children and young people who would be impacted by SI 445?
NB elephants in the room: Why not the Children's Commissioner? Why not the care-experienced children and young people who would be impacted by SI 445?
Defence doesn't suggest that consultation couldn't have been improved with hindsight, but does argue that it was rational and fair.
Galina Ward argues that the consultation was sufficient given the circumstances. Says no case law to say different interests must be considered.
Galina Ward argues that the consultation was sufficient given the circumstances. Says no case law to say different interests must be considered.
Court now considering email from DfE to the Children's Commissioner for England informing (not consulting) her of the SI 445 changes, one week before it was published.
Lots of time dedicated to the chronology/correspondence w/ Commissioner. Clear this will be vital to judgment.
Lots of time dedicated to the chronology/correspondence w/ Commissioner. Clear this will be vital to judgment.
Defence returns to point of the pandemic informing consultation speed and decision-making.
Admits the consultation was not perfect, but contests the legal argument that it was irrational or unfair.
Admits the consultation was not perfect, but contests the legal argument that it was irrational or unfair.
Galina Ward pointing to case law now (see: Rights of Women) that sets a test of whether there is no rational connection between the stated policy objective and the manner of consultation.
Argued this test is a very high hurdle that in this case is not close to being surpassed.
Argued this test is a very high hurdle that in this case is not close to being surpassed.
Defence quotes the Chief Executive of Barnardos in a UK Parliament Select Committee hearing, who claimed to "see the logic" for introducing SI 445.
Question over whether this was permissible in court as it was part of a parliamentary procedure, but has been allowed in this case.
Question over whether this was permissible in court as it was part of a parliamentary procedure, but has been allowed in this case.
On to the Children's Rights Impact Assessment, which Jenni Richards QC pointed out yesterday was done AFTER the Sec of State had signed approval for SI 445.
Galina Ward says this is to misunderstand the machinations of gov't. Argued that impact assessment is iterative process.
Galina Ward says this is to misunderstand the machinations of gov't. Argued that impact assessment is iterative process.
Defence invites Hon. Judge to dismiss the claim.
Very little time dedicated to the 2nd/3rd grounds on duties to best interests of children and for Sec of State to promote welfare. This probably means defence expects focus to be on grounds that consultation was unlawful.
Very little time dedicated to the 2nd/3rd grounds on duties to best interests of children and for Sec of State to promote welfare. This probably means defence expects focus to be on grounds that consultation was unlawful.
Back to Jenni Richards QC, representing @article_39, who is disputing the 'contextual factors' identified by the defence.
It is argued:
Plenty of time for consultation, as defence has demonstrated.
Changes were not 'temporary' where they affect life outcomes.
#ScrapSI445
It is argued:
Plenty of time for consultation, as defence has demonstrated. Changes were not 'temporary' where they affect life outcomes.#ScrapSI445
Jenni Richards QC pointing to concerns raised by @NIROMP2 about SI 445 & its potential effect on Independent Reviewing Officers.
Similarly, a public statement by @N_A_I_R_O sets out their position.
Neither organisation was consulted, both have deeply held concerns about SI 445.
Similarly, a public statement by @N_A_I_R_O sets out their position.
Neither organisation was consulted, both have deeply held concerns about SI 445.
Jenni Richards QC introduces @ChildrensComm's report on children being moved by local authorities to live 'out of area'.
This is to highlight the particular vulnerability of children who can be affected by SI 445. Report here https://www.childrenscommissioner.gov.uk/report/pass-the-parcel-children-posted-around-the-care-system/
This is to highlight the particular vulnerability of children who can be affected by SI 445. Report here
https://www.childrenscommissioner.gov.uk/report/pass-the-parcel-children-posted-around-the-care-system/
More time being spent looking at duties and SI 445 itself - @article_39's lawyers clearly not accepting that the consultation is the only grounds worth giving significant time to.
Questions about the underlying reasons for SI 445 being introduced.
#ScrapSI445
Questions about the underlying reasons for SI 445 being introduced.
#ScrapSI445
Turning to guidance that later accompanied SI 445, Jenni Richards QC asks:
Why was this not statutory?
And claims:
Defence wrong to suggest there is little difference between statutory & non-statutory guidance.
Why was this not statutory?And claims:
Defence wrong to suggest there is little difference between statutory & non-statutory guidance.
After working to pick apart the gov't approach to their non-statutory guidance, Jenni Richards QC finishes by saying that it is irrelevant to the case anyway - the grounds are focused on the legislation not the guidance.
Vital the defence are not allowed to conflate the two.
Vital the defence are not allowed to conflate the two.
Primary function of @ChildrensComm = promoting and protecting the rights of children in England. This includes promoting children's views.
Jenni Richards QC sets out that the Commissioner does not need to be party to this case for decision not to consult her to be unlawful.
Jenni Richards QC sets out that the Commissioner does not need to be party to this case for decision not to consult her to be unlawful.
Children's rights groups will be collectively cheering as Jenni Richards QC raises #Article12 of the UN Convention of the Rights of the Child.
Article 12 sets out children's right to be heard when decisions are made about them. Gov't yet to explain why no children's views heard.
Article 12 sets out children's right to be heard when decisions are made about them. Gov't yet to explain why no children's views heard.
Key point on consultation made by Jenni Richards QC:
Either:
Conscious decision was made by gov't NOT to consult the Children's Commissioner.
Or:
The Sec of State did not give any regard to the need to consult the Children's Commissioner.
Both could be considered unlawful...
Either:
Conscious decision was made by gov't NOT to consult the Children's Commissioner.
Or:
The Sec of State did not give any regard to the need to consult the Children's Commissioner.
Both could be considered unlawful...
The Hon. Judge says there is no evidence that the Sec of State made a positive decision not to consult the Children's Commissioner. Possible there was a discussion between civil servants, but no email chain or other evidence.
Jenni Richards QC says decisions must have been made.
Jenni Richards QC says decisions must have been made.
Final point made on behalf of @article_39 looks at Sec of State's function to protect children from harm and neglect, and the need to promote their mental health and wellbeing.
Jenni Richards QC argues that defence mis-characterises safeguards as 'burdens' for removal.
Jenni Richards QC argues that defence mis-characterises safeguards as 'burdens' for removal.
Jenni Richards QC closing remarks argue that the Sec of State failed to understand (& factor into his decision-making process) the potential detrimental impact to the welfare, safety, physical and emotional health of children.
In a nutshell - safeguarding duty ignored.
In a nutshell - safeguarding duty ignored.
Court session closed.
The Hon. Judge will try to produce a judgment by Friday (but no promises).
Gov't already indicating that they will pursue further submissions if the court rules SI 445 to be unlawful. Whatever happens, this isn't over yet.
#ScrapSI445
The Hon. Judge will try to produce a judgment by Friday (but no promises).
Gov't already indicating that they will pursue further submissions if the court rules SI 445 to be unlawful. Whatever happens, this isn't over yet.
#ScrapSI445
Thank you to everyone who has followed/liked/RT'd my court reporting over the last two days.
Please follow the charity I have the privilege of working for, @NYASServices, to keep up to date with our campaigning to defend children's rights.
We stand with @article_39! #ScrapSI445
Please follow the charity I have the privilege of working for, @NYASServices, to keep up to date with our campaigning to defend children's rights.
We stand with @article_39! #ScrapSI445
