If consultation was not undertaken – how to retrieve the situation.

When coronavirus sent Whitehall – and everywhere else – into a flat spin, Government responded with a flurry of administrative and legislative actions, and clearly took quick decisions which, at other times would have involved various amounts of consultation. Inevitably, some of these have been challenged in the Courts, and in recent days there have been two relevant cases. Both were won by the Secretary of State for Education.

In the first case, the children’s rights charity Article 39 argued that Regulations introduced during the pandemic to relax children’s safeguarding requirements through local authorities were unlawful because they had not been properly consulted upon. A total of 65 relaxations were made, many of which Article 39 claimed had potentially serious consequences for looked-after children. There HAD been consultation – albeit, informal and confidential. Selected local authorities, Ofsted and other internal stakeholders had been consulted. The Children’s Commissioner, had, however merely been ‘told’; all the well-known children’s rights bodies were wholly excluded from the dialogue. Was this sufficient? In the event Mrs Justice Lieven decided it was lawful, but merely because of the extreme circumstances. She went as far as to rule 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.”