Followers of consultation law will already be familiar with the children’s rights charity Article 39. Named after Article 39 of the UN Convention on the Rights of the Child, it was the body that brought the challenge to some of the temporary changes made during the pandemic to regulations around children in care, and provided us with a judgment which we reckon will provide a basis for consultation in crisis conditions for the foreseeable future.

Now the charity has brought us another case, this time challenging new regulations which, amongst other things would prohibit children under the age of 16 from being placed in unregulated accommodation (except in very specific circumstances.

The decision was challenged on three grounds, one of which was to the consultation which had taken place from February 2020 and specifically considered why placements in unregulated accommodation may not be suitable for those under-16, but may in some circumstances be appropriate for over-16s. It consulted on the introduction of national standards for unregulated accommodations, and was supplemented by 17 focus groups involving 165 young people with experience of the care environment.

The consultation was challenged on the basis of two of the Gunning principles, firstly Gunning 2, and secondly Gunning 4. The Gunning 2 challenge alleged that the consultation was unfair as it hadn’t sought views on an option to extend the general prohibition of providing unregulated accommodation to 16- and 17-year-olds. Article 39 argued that this was one of the cases identified in Moseley where fairness required reference to other discarded options.

The Court disagreed. They could identify no obligation on the Government to specifically consult on this option, and it “should have been obvious” that if consultees wanted to suggest this as an option then they could do so, as the Government had made it clear that they intended no change in relation to those aged 16 or above. This ruling was backed up by the fact that many consultees did make responses to this effect.

The Gunning 4 claim protested the summary of responses provided for consideration of the Minister, particularly that it had been incorrect to suggest that there was majority support for the proposals. The Court rejected this argument, finding that the responses had been properly summarised. Perhaps the more interesting point, and one which might be a bit more amenable to appeal was on the secondary argument that important responses had not been adequately considered.

The responses largely related to reports of traumatic experiences in unregulated environments, which Claimants claimed had not been reflected in either the briefing ministers had received or the Government’s consultation response. They had been mentioned in a summary document prepared for ministers, though this document had not been provided to them before they had made their decision. As we were reminded in the Police pensions case, when making decisions it is important to have the relevant information in front of you before you make a decision, not afterwards.

Unlike in that case however, here the Court found for the Government. The distinction seems to have been that there was clear evidence here that the Government had known about and taken account of the responses. Mitigation measures for the sorts of problems being mentioned were under active consideration, and there was evidence that the gist of the views had been summarised in official advice.

Despite this finding however we still have a few doubts about whether this would stand up in any appeal (which the charity is pursuing). Since Kohler it has been clear that there are some responses that decision-makers should read themselves, and we’re not entirely convinced that an assertion that the “gist” of these would be entirely sufficient, particularly as it was acknowledged that the summary document that had provided a further description had not been seen before the decision, we wouldn’t be surprised if this is accepted as a ground of appeal.

Whether any appeal succeeds, or whether any appeal court instead finds that though this was unlawful they can give no relief on the grounds that it would not have changed the decision (here quite likely as it was clear that the sort of problems complained of had been known and efforts made to tackle them) is a different matter- but it could be an interesting one to watch. We’re always looking for more clarity, and there are still important questions to be answered about how the Kohler (and Police Superintendents) decisions should be applied.

From our perspective however, we would treat this judgment with caution for now, and continue to apply the Kohler principle diligently, that there are some comments which should be seen by decision-makers prior to decisions being taken. We’ll see whether the appeal application succeeds- it should be remembered that in the original Article 39 case the charity lost at first instance, and then succeeded at appeal, so we may yet see another major judgment from one of their challenges.