Mrs Justice Lieven: 'for me the most troubling legal aspect of this case is that the DfE did not consult the Children's Commissioner - though she is not an intervenor in this case'

She asks the government's barrister to deal with this.

Should note that nothing is actually verbatim even if in quotes, I am paraphrasing.

Govt barrister: 'this was not a usual situation, things aren't usually done in this way.'

Govt counsel is Galina Ward.

GW: 'consultation takes place in various ways - consultation may be less formal or more targeted'

GW 'the consultation audience will vary - the claimant has to establish that children's rights groups and children's commissioner would be consulted during a pandemic.'

Judge: 'you may have elided two different things there. The way I would look at it is is there a legit expectation of consultation generally, I would say yes, particularly to a children's commissioner'

Judge 'let's cut to the chase - there was time and there was a desire to consult not just LAs but a number of providers, but no consultation with the very person in statute who is there to look after the interests of children - why not? Is there an explanation?'

GW Goes back to the thing about the way the consultation process will vary depending on the situation.

Judge: but the sec of state seems to have consulted very carefully with only those (providers) who would say the changes was necessary, and not those who would comment on the impact (on children) of the changes to the protections.

GW 'there is the particular context here of this being very far from the only part of the crisis the department had to engage with. Becuase this has been an extraordinarily difficult time to be in government.'

Okay, this seems be really just a very weak excuse.

Judge: 'it's not that I don't have intense sympathy with the civil servants, but it would only have taken one email (to the children's commissioner) - there seems to have been time to have a convo with even specific providers, but no time to send an email to the CC. '

Judge 'it feels as if there must have been an obvious decision not to consult with the Children's Commissioner becuase she is such an obvious consultee'

GW - 'decision was to consult with providers as to the difficulties there would be if the regulations were not amended. I don't claim on behalf of my clients that this was perfect. If more time and less pressures things would have been different.'

Judge; 'what's the closest thing in the document as to the rationale for who would be consulted?'

GW 'There's nothing that records a decision to consult with particular bodies or organisations'. There's a description of how the workstream was progressing in tandem with other workstreams. Best I can say is there was no express consideration to consult with the CC or not.'

GW: talking about the @ADCStweets position: that they wanted relaxations and flexibility during the pandemic.

GW: she says that it was quite clear that by DfE consulting with @ADCStweets they were getting a view on what would be in the interests of children.

GW: also says that some aspects of what the DfE was consulting on didn't make their way into the new regulations, 'so it wasn't a matter of rubber stamping everything'.

GW: the risks of doing nothing were that children and young people would be left at very significant risk of harm.

She's quoting from various documents.

ie from various people/organisations who •were* consulted.

It's so interesting - GW is going through lots of testimony from all the organisations who were consulted. It points up how tricky it is that so many organisations representing children's rights were not. Including the Children's Commissioner.

GW pointing out that Coram sought out views of adoption agencies. This is still not the same as children's rights organisations.

GW: the Dep had all these sources of info, what providers were saying they needed, what they thought would be best for children, and in that context, this consultation was not irrational or unfair, could not be described as going clearly and radically wrong such as to be unlawful

GW: not to say that it couldn't have been improved. And remember the temporary nature of it... it would be reviewed afterwards. The CC nor anyone else was being excluded, it was getting to a position where the system could function if the worst case scenario materialised.

GW: not that it would be sufficient if it had been repeated in September, but at the time it was sufficient.

GW: the Dept says it didn't know if it would have any further opportunity to legislate if the pandemic progressed.

For interest, I have it on record from the Children's Commisioner's office "We were told in advance the SI would come in, and how it would work and what it would mean. We were not asked what we thought of the idea in advance of a decision to proceed.'

Judge: Can I understand, she was being consulted at the same time on the guidance? (I'm not sure what this guidance is)

GW: Yes
Judge: So email of 16 april, it looks like the first time the CC was told about the guidance was on 16 April. So was there urgent guidance in March?
GW: yes, there was, which preceded any regulatory changes.

GW: I don't think on consultation I can say any more.

GW: not perfect. but not irrational and unfair, not clearly and radically wrong.

Judge: Ms Richards? own case - she talked about needing to hear from the children, their voices - is there any official body who have a statutory role in giving voice to the interests of children or is that the CC?
GW: that's the CC

GW: that leaves the other two grounds. Padfield (okay, I'm lost a bit here)

GW: she says that whatever the case is she was previously talking about 'there's a very hurdle and not one that comes close to being met in this case.'

GW: re Education Committee, you have the CEO of Barnardo's saying he can understand the logic of needing to make changes like this...

Right. Signing off...