BREAKING: HIGH COURT RULES STATUTORY INSTRUMENT 445 WAS MADE LAWFULLY
7th Aug 2020
Today, a much-anticipated judgment following Article 39’s Judicial Review challenge of ‘SI 445’ was handed down by the High Court, finding that SI 445 was lawfully introduced by the Government. The verdict comes shortly after a two day court battle, in which Article 39, supported by the #ScrapSI445 group, argued for children’s rights to be reinstated during the COVID-19 pandemic.
The legal challenge was formed on three grounds: SI 445 unlawfully failed to consult broadly enough; SI 445 ran contrary to the statutory scheme that existed for children; and that SI 445 was introduced without regard to the welfare of children under the Children and Young Person Act 2008.
Mrs Justice Lieven stated in point 48 of the judgment that she agreed with the argument advanced by Ms Richards QC on behalf of Article 39, “that the safeguards dealt with in the [SI 445] regulations are of real importance to the protection of this very vulnerable cohort of children. […] these are not bureaucratic provisions that are a burden.”
NYAS, as part of the #ScrapSI445 campaigning group has throughout the COVID-19 pandemic argued that the 65 protections lost or diluted by SI 445 constitute significant rights that have been built up over many years to better protect care-experienced children and young people. We are pleased that Justice Lieven recognised this.
Justice Lieven also echoed that the “Children’s Commissioner could have been consulted”, saying that “In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted”.
The reasons underlining the outcome can be found towards the end of Justice Lieven’s closing remarks. The actions that the Government took to introduce ‘flexibilities’, according to Justice Lieven, were with the intention of “protecting the welfare of children in the circumstances of the time.”
We are proud to have supported Article 39 in their efforts, and grateful to them for taking forward the case for Judicial Review.
NYAS and many others within the sector will continue to campaign for the immediate withdrawal of SI 445.
Sign the petition for the withdrawal of SI 445 here.
Watch NYAS’ Head of Policy, Ben Twomey, respond to the judgement here.
Rita Waters, Chief Executive of NYAS, said “We are disappointed by today’s judgment. Safeguards that protect thousands of care-experienced children and young people across England have been stripped away by SI 445. The judgment that Article 39 received today acknowledges that these safeguards are significant for children, and that the challenges that the social care sector faces are longstanding. We continue to call for the immediate withdrawal of SI 445, until the rights of care-experienced children are reinstated, and every child has the protection they deserve.”