T & Ors, R (on the application of) v The Secretary of State for Education [2018] EWHC 2582 (Admin)

[2018] EWHC 2582 (Admin)

Case No CO/5938/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 6 October 2018

Before

THE HONOURABLE MR JUSTICE LEWIS

Between

R (T AND OTHERS)Claimants

THE SECRETARY OF STATE FOR EDUCATIONDefendant

Ian Wise Q.C. and Michael Armitage (instructed by Hopkin Murray Beskine) for Claimants

Rory Dunlop and Jack Anderson (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 4 th and 5 th July and 14 th and 24 th September 2018

JUDGMENT

INTRODUCTION

[1]This is a claim for judicial review brought by three parents and three children challenging regulations which have the effect that the defendant, the Secretary of State for Education, is to secure that an additional 15 hours a week of free childcare is available for children of working parents. At present, all children aged three and four are eligible for 15 hours a week of free childcare. Section 1 of the Childcare Act 2016 (“the 2016 Act”) and the qualifying conditions contained in the Childcare (Early Years) (Provision Free of Charge) (Extended Entitlement) Regulations 2016 (“the Regulations”) have the effect of requiring the provision of an additional 15 hours a week of free childcare for children aged three and four of working parents (as defined by the legislation).

[2]Two of the claimants are lone, or single, parents with caring responsibilities and one is a lone parent who was the victim of domestic abuse. As those parents are unable to work their children will not be able to qualify for the additional hours of free child care. The claimants contend that the Regulations give rise to a breach of Article 14 read with

Article 8 of the European Convention on Human Rights

(“ECHR”). They contend, in broad terms, that there is differential treatment between families where one parent is working and families such as the claimants’ where a lone parent has a child but cannot work. Children in the former group are eligible for the additional 15 hours of free childcare: children in the latter group are not. They contend that the defendant cannot justify the differential treatment. The defendant accepts that there is differential treatment within the meaning of Article 14 but contends that the differential treatment is objectively justified. The defendant contends that the 2016 Act and the Regulations pursue a legitimate aim, namely incentivising and facilitating parents to undertake paid work. The means adopted for achieving that aim, namely the provision of additional hours of free child care for those in paid work, is proportionate to that aim.

THE FACTS

[3]The first and second claimants, GW and T, are mother and daughter. GW is 24 years old. Her daughter was born on 13 September 2015. The father of T has not taken responsibility for his daughter and does not live in this country. GW and T were homeless and were provided with temporary accommodation by the local housing authority. GW’s mother has mental health problems. GW has been recognised as providing at least 35 hours care for her mother and receives a carer’s allowance from the Department of Work and Pensions. In fact, GW provides far more than the 35 hours of care each week necessary to qualify for a carer’s allowance. She explained in her evidence that she thinks that she provides a minimum of 70 hours a week of care for her mother. As a result, it is not possible at present for GW to work.

[4]T will begin attending a nursery for 15 hours a week free of charge from 8 January 2019. As her mother, GW, is not a working parent, she will not be eligible for the additional 15 hours of free childcare provided for children of working parents. In her witness statement, GW explains that she is concerned that the amount of time she spends caring for her mother impedes upon the time that she can spend with her daughter. She would like her daughter to attend a nursery for 30 hours a week as that would give GW some respite time for herself and to enable her to undertake household and caring tasks whilst her daughter was at nursery. She would like her daughter to get the best out of nursery and believes that attendance for 30, rather than 15, hours, a week would enable her daughter to meet and socialise with other children, and believes that the additional hours will help her daughter educationally when she begins to attend school.

[5]The third and fourth claimants, LP and RS, are a mother and son. LP is 26 years old and has two sons. She is estranged from the father of the children. LP and her sons live in temporary accommodation. The older son is 7 years old and been diagnosed with autistic spectrum disorder and developmental delay. He attends a special school locally. RS was born on 12 January 2015. He too has significant developmental delays and difficulties and is being assessed to determine if he has autistic spectrum disorder. He attends a nursery for 15 hours, that is for 3 hours a day, 5 days a week

[6]LP provides at least 35 hours’ care a week for her older son and receives a carer’s allowance from the Department of Work and Pensions. LP describes in her witness statement the many challenges and difficulties that arise out of looking after two young boys with severe developmental difficulties. She describes the almost constant need for care and attention that has to be given to her sons when they are at home. As she explains, both boys are distressed and uncontrollable throughout the day when at home. LP cannot relax or let her attention drift for a second as keeping them safe requires constant vigilance. LP graduated from university and worked part-time whilst studying. She would like to work in the longer term, and would like to become a social worker. Looking after the needs of her two sons means that that is not a realistic option at present as looking after her two sons is a full-time job even with the older son in full-time education and RS attending a nursery part-time. LP says that RS is isolated at home and she finds it difficult to keep him safe, occupied and stimulated. She believes that he is ready for additional hours at a nursery and believes that this would benefit his social and educational development as he would be able to meet other children at nursery and develop social skills. She believes that nursery attendance would help him with his speech and language skills.

[7]The fifth and sixth claimants are FB and her younger son aged 2. FB is 35 years old and was born in Morocco. She moved to London when she married in 2009 and had two sons, the older one aged 8 and the sixth claimant. FB left her husband, with her children, because of his abusive behaviour. FB and the two children now stay at a woman’s refuge in Islington. FB had been studying in Morocco but stopped studying when she married. She would like to teach but does not think that that this will happen in the near future as she would have to study for a long time to obtain the necessary qualifications and it would be too difficult as a lone parent with young children. FB explains that it would be difficult to find and keep a job whilst living at the refuge. Her older son is settled in a new school. FB would like her younger son to start at a nursery. He is eligible for 15 hours free child care a week and FB hopes to obtain a place for him soon but has not yet found a place. She does not believe that she would be able, because of her circumstances, to find a job before her younger son becomes three years old so he would not qualify for the additional 15 hours childcare. She believes it would be beneficial if he could start with 15 hours of nursery provision and then have 30 hours a week once he attained the age of three. THE LEGISLATIVE FRAMEWORK The Pre-2016 Act Legislation – Provision of Childcare by English Local Authorities

THE LEGISLATIVE FRAMEWORK

[8]Legislation places certain duties on local authorities to provide childcare. Section 6 of the Childcare Act 2006 (“the 2006 Act”) provides for a local authority in England to secure, so far as is reasonably practicable, that the provision of childcare is sufficient to meet the requirements of parents in their area who require childcare in order to enable the parents to take up or remain in work or to undertake education or training.

[9]Section 7 of the 2006 Act places a duty on a local authority in England to secure early years provision for children free of charge.

(a) who is under compulsory school age, and

[10]Early years provision is defined in section 20 of the 2006 Act to mean the provision of childcare for a young child. “Childcare” is defined in turn in section 18 as “any form of care for a child” and includes education for a child and any other supervised activity (save where these are provided by a school during school hours).

[11]The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 (“the 2014 Regulations”) prescribed those children who were eligible for early years provision. In essence, as appears from Regulations 1(2) and 3(3), 3(2) and 4 of the 2014 Regulations, the following groups of children are eligible to receive 15 hours free childcare provision for 38 weeks a year:(1) All three- and four- year old children; and

(2) Children aged two whose parent is entitled to one of a number of specified welfare benefits (including income support for those not working) or who have a statement of special educational needs or an education health and care plan.

The Background to the 2016 Act

[12]The Childcare Bill, which became the 2016 Act, was introduced into the House of Lords in June 2015. It is clear from the provisions of the legislation itself, and the background material, that the purpose of the legislation was to facilitate, and to provide an incentive to, parents who wished to work, or work more hours, by providing additional free child care.

[13]At second reading, Lord Nash, the government minister who introduced the legislation in the House of Lords, said this:

“The Government’s long-term economic plan is focussed on ensuring that working people have a chance to get on, offering them security and opportunity at every stage of their lives. We know that, for many families with young children, childcare is not an issue – it is the issue. Many parents want to go back to work or work more hours, but find the costs of childcare unaffordable. The Government want to reward hard-working families by reducing their childcare bill.”

[14]An element of the Government’s thinking was that work was a means of reducing poverty, including child poverty. Baroness Evans, a government minister, told the House of Lords’ committee considering the Bill on 6 July 2015 that:

“The provisions in the Bill will enable parents to take up work or increase their hours of work so that they can support their families. We know that work is the best route out of poverty. Around three quarters of children from low-income families move out of income poverty when a parent moves into work or from part-time to full-time work.”

[15]A further concern reflected in some of the ministerial comments was that society would benefit economically from greater participation in the workforce by those with children. By way of example, the Secretary of State for Education said, during the second reading of the Bill in the House of Commons on 25 November 2015 that: “We put the early years at the heart of our manifesto because we know how important those years are for children’s school readiness and future educational success. We also know that working families struggle to find flexible, affordable and high-quality childcare. For many parents, this challenge is the biggest barrier to work. So I am determined - and this Government are determined – to deliver these measures that will give children the best start in life, support parents to work and allow our economy and our society to prosper more”.

[16]The criteria for determining eligibility for the additional childcare was to be set out in regulations not the primary legislation although there was debate on the criteria that would be likely to be adopted. At the report stage in the House of Lords on 14 October 2015, Baroness Evans explained that the intention was to increase the hours of free child care available to working parents and, broadly, the regulations would require a certain amount of work to be undertaken in order to qualify for the additional 15 hours of free childcare. The minister indicated that the same threshold would apply to lone parents. The intention was that the additional entitlement would be available where both parents were employed or where one parent was employed and the other temporarily absent from the workplace for specified reasons. It was also said that the additional entitlement would be available where one parent was working and the other had substantial caring responsibilities or was disabled.

[17]The Department for Education made available to both Houses of Parliament a document entitled “Childcare Bill: policy statement” on 3 December 2015 to aid in the scrutiny of the Bill. It noted that the new entitlement “is intended to support working parents with the cost of childcare and enable them, where they wish, to return to work”. It explained that the additional hours would be available where both parents were working or where the sole parent was working in a lone parent family. It was therefore clear that children of lone parents who were not working were not intended to be eligible for the additional 15 hours of free childcare. The policy statement also made it clear that the additional hours of child care would be made available to children in families where one parent worked and one was in receipt of a carer’s allowance or was disabled. The policy statement notes that the government believed that that would assist these household to maintain one parent in employment or to increase their hours of working.

[18]The policy statement also dealt with the position of children. It noted that all three- and four- year olds were entitled to 15 hours a week of early years provision. It said that:

“The current entitlement ensures that three- and four- year olds can access 15 hours a week of quality early education free of charge, to prepare them for school and improve their life chances. “It is the quality of provision that really makes the difference – cognitive benefits of child care disappear by age ten if a setting is low quality while children attending high quality provision for two or three years before school have a seven to eight month developmental advantage in literacy compared to their peers. Evidence tells us that around five sessions or around 15 hours a week of quality early education are needed for children to gain these benefits.”

[19]It is suggested in the evidence that there were debates in the House of Commons on amendments to the Bill but I have not been provided with the text of the amendments. In any event, the evidence contains some extracts from the debates. The relevant minister stated on 8 December 2015 that the criteria would enable children to qualify if one parent in a household was working and one parent had substantial caring responsibilities (as evidenced by that parent being in receipt of carer’s allowance). The minister stated that that would include parents caring for their own disabled child. The statements of the minister confirm that lone parents with caring responsibilities for their own disabled child would not qualify unless the lone parent satisfied the conditions about working. If they did not work, they would not be eligible. There was also, it seems, a debate on the position of victims of domestic abuse on 25 January 2016. The minister confirmed that children of such parents would receive the first 15 hours of childcare a week if they were aged three or four. The minister indicated that additional financial support was to be provided to women living in refuges. He indicated that a three month grace period would be given, that is a period when children would remain eligible for the additional 15 hours of free childcare where women have had to leave the family home because of domestic abuse and have had to give up their employment. The minister said that consideration would be given to extending the grace period. The clear implication (although not expressly stated in the extract included in the evidence) is that the children of such parents would not otherwise be eligible for the additional 15 hours free childcare if the lone parent was not working.

The 2016 Act

[20]The long title to the Act says that it is “An Act to make provision about free childcare for young children of working parents and about the publication of information about childcare and related matters by local authorities in England".

[21]Section 1 of the Act provides, so far as material, as follows:

“Duty to secure 30 hours free childcare available for working parents (1) The Secretary of State must secure that childcare is available free of charge for qualifying children of working parents for, or for a period equivalent to, 30 hours in each of 38 weeks in any year. (2) “Qualifying child of working parents” means a young child— (a) who is under compulsory school age, (b) who is in England, (c) who is of a description specified in regulations made by the Secretary of State, (d) in respect of whom any conditions relating to a parent of the child, or a partner of a parent of the child, which are specified in such regulations, are met, and (e) in respect of whom a declaration has been made, in accordance with such regulations, to the effect that the requirements of paragraphs (a) to (d) are satisfied. (3) The conditions mentioned in subsection (2)(d) may, in particular, relate to the paid work undertaken by a parent or partner. (4) For the purposes of subsections (2) and (3), the Secretary of State may by regulations— (a) make provision about when a person is, or is not, to be regarded as another person's partner; (c) who is of a description specified in regulations made by the Secretary of State, (d) in respect of whom any conditions relating to a parent of the child, or a partner of a parent of the child, which are specified in such regulations, are met, and (e) in respect of whom a declaration has been made, in accordance with such regulations, to the effect that the requirements of paragraphs (a) to (d) are satisfied. (a) make provision about when a person is, or is not, to be regarded as another person's partner; (b) make provision as to what is, or is not, paid work; (c) specify circumstances in which a person is, or is not, to be regarded as in such work; (d) make provision about— (i) the form of a declaration and the manner in which it is to be made; (ii) the conditions to be met by the person making a declaration; (iii) the period for which a declaration has effect. (9) In this section— “childcare” has the meaning given by section 18 of the Childcare Act 2006; “parent”, in relation to a child, includes any individual who— (a) has parental responsibility for the child, or (b) has care of the child; “parental responsibility” has the same meaning as in the Children Act 1989; “young child”: a child is a “young child” during the period— (a) beginning with the child's birth, and (b) ending immediately before the 1 September next following the date on which the child attains the age of 5.”

The Regulations

[22]Draft regulations were prepared and were laid before each House of Parliament in accordance with section 4(4) of the 2016 Act. The extracts from the debates included in the evidence indicate that the minister in the House of Commons explained that all three and four olds were eligible to receive 15 hours of free childcare, and the most disadvantaged two year olds also received 15 hours of free childcare. The minister referred to other measures in place to support children with special educational needs. The minister in the House of Lords explained that the draft regulations were intended to provide an additional 15 hours of childcare for three- and four- year old children of working parents. He summarised the eligibility criteria. He explained that children in households where the parents were not working by reason of maternity or paternity leave or where one parent was working and the other was not because that parent was disabled or had caring responsibilities would be eligible for the additional 15 hours of free childcare. He said that all three and four year old children would be eligible to receive 15 hours a week of childcare, as would the most disadvantaged two year old children. He referred to other measures being taken to assist the more disadvantaged three- and four- year old children.

[23]The draft regulations were approved by each House. The Regulations were made by the Secretary of State for Education on 16 December 2016.

[24]Regulation 3 of the Regulations defines who is a young child for the purposes of section 1(2)(c) of the 2016 Act. Regulation 4 of the Regulations sets out the three conditions that a parent, or a partner of the parent, of a child must meet. That regulation provides, so far as material, that:

“(2) The first condition is that the main reason, or one of the main reasons, the parent of the child seeks the free childcare referred to in section 1(1) of the Act is to enable the parent, or any partner of the parent, to work. ….. (4) The second condition is that the parent of the child is in qualifying paid work in accordance with this Chapter. (5) The third condition is that the parent does not expect their adjusted net income to exceed £100,000 in the relevant tax year. ….. (7) Where a parent of the child has a partner (see regulation 10), that partner must also meet the conditions in paragraphs (4) and (5).”

[25]A person is in qualifying work if, broadly, he or she is in paid work earning the equivalent to (or more than) 16 hours of work at the minimum wage: see regulations 2(1)(a) and 5(2) of the Regulations. There is also provision treating a person as in paid work if that person receives specified welfare benefits (such as carer’s allowance or disability benefits) and the person’s partner is in work: see regulation 9 of the Regulations.

[26]In the present case, the three children who are claimants will not be able to have access to the additional 15 hours of free childcare when they attain the age of three as their lone parent cannot satisfy the second condition as they are not undertaking qualifying work. The sixth claimant, additionally does not satisfy the first condition as she is not seeking free childcare in order to enable her to work. (the second and fourth claimants are deemed to satisfy this condition as they are in receipt of a carer’s allowance; see regulations 4 (3) and 9 (1)(b) of the Regulations).

Equality Impact Assessment

[27]For completeness, I note that an equality impact assessment was prepared in September 2016 on the proposals that were intended to be contained in the draft regulations (it was not, it seems, an assessment of the draft regulations themselves). That noted that the provision of additional hours of childcare was intended to support parents to take up work or increase their hours of work and the eligibility criteria and thresholds had been identified accordingly. Paragraphs 33 and 34 of the assessment noted that:

“33 Single parents with caring responsibilities will only qualify for 30 hours free childcare if they meet the eligibility criteria by meeting the income requirement of 16 hours at the legal minimum wage. A full time carer who is unable to work or does not meet the income requirement, will only be able to access 30 hours’ free childcare if they live with a partner who is in qualifying paid work. This is to enable the working partner to increase their hours or (where one partner isn’t working, to help them enter employment). If they do not have a partner or their partner has a disability which means that they cannot work then they would not qualify for the extended entitlement. This is because the policy is intended to support working parents with the cost of childcare and enable them, where they wish, to return to work or to work additional hours. “34. Parents who are carers can receive alternative support from the local authority covering the area where the person they care for lives. The local authority will provide information and advice about carer’s assessments, which should look at parenting and childcare. One of the most important parts of the carer’s assessment will be a discussion concerning paid work because the local authority must consider the support a parent may need if they want to stay in a paid job or return to paid work.”

Other Legislation

[28]Other legislation exists to provide assistance, support and services to persons such as the adult and child claimant’s social and other needs. By way of example only, the Care Act 2014 imposes obligations on local authorities to assess a carer’s needs for assistance and imposes duties to provide for those assessed needs. A parent can request an assessment of a child’s educational, health and social needs under the Children and Families Act 2014 and that Act imposes obligations to prepare an education health and care plan.

THE ISSUES AND SUBMISSIONS

[29]Against that background, and in the light of the claim form and the written and oral submissions made in this case, the issues that arise, in essence, are as follows:(1) Do the provisions of the Regulations providing, in effect, for the provision of 15 hours additional free childcare a week for the children of working parents give rise to differential treatment between parents and children in families where one parent (or partner) is working and (a) children and lone parents who have substantial caring responsibilities (as evidenced, in particular, by the fact that they are in receipt of carer’s allowance) and who cannot work and (b) children and lone parents who are the victims of domestic abuse and who cannot work with the result that children of lone parents in one of those two groups are not eligible for the additional 15 hours a week of free childcare:

(2) Is that differential treatment on the grounds of other status within the meaning of

Article 14 ECHR

;

(3) Has the defendant demonstrated that the differential treatment is objectively justified?

[30]Mr Wise Q.C., for the claimants, submits, in essence, that there is differential treatment between both the lone parents who are carers, especially those in receipt of a carer’s allowance, and so cannot work and the children of such lone parents and the parents and children in families where one parent (or partner) is working. The children of the lone parent are not eligible to receive the additional 15 hours of free childcare; children in the second group are eligible. The claimants also contend that there is differential treatment between both lone parents of domestic violence who, as a result, cannot work and the children of such parents and the parents and children in families where one parent (or partner) is working. Children of lone parents who are victims of abuse and cannot work are not eligible to receive the additional 15 hours of free childcare; the children of working parents are eligible.

[31]The claimants contend that this differential treatment falls within the scope of

Article 14 ECHR

as it relates to the enjoyment of their right to respect for family and private life in

Article 8 ECHR

. They contend that the defendant is unable to justify objectively the differential treatment. Whilst recognising that the burden is on the defendant to justify the differential treatment, they make a number of specific criticisms which they say demonstrates that the defendant cannot objectively justify the differential treatment. The principal criticisms, and the relevant evidence, are considered below. Consequently, they submit, the Regulations give rise to differential treatment on the grounds of other status which is not objectively justified and so, they claim, involve discrimination contrary to Article 14, read with Article 8, of the ECHR.

[32]For completeness, I note that the claimants initially contended that the differential treatment also fell within the scope of Article 2 to the First Protocol to the ECHR (the right not to be denied education). In oral argument, Mr Wise Q.C. for the claimants accepted that all relevant considerations would be addressed if the treatment fell within the scope of

Article 8 ECHR

(which the defendant conceded it did). He therefore did not make any submissions in relation to Article 2 of the First Protocol. The claim form also referred to the principle referred to in Thlimmenos v Greece

(2001) 31 EHRR 15

, and other authorities, whereby it may be discrimination to fail to treat persons who are in a different situation differently without any objective justification (see paragraph 29 of the claim form). In the event, Mr Wise accepted that, as the defendant conceded that there was differential treatment here between different groups, it was not necessary to rely upon that principle in the present case and, again, he made no specific submissions on this aspect of the case. It is not necessary, therefore, to address these two matters.

[33]The defendant accepted that there was differential treatment between lone parents in receipt of carer’s allowance and families where one parent (or partner) was in work. The defendant also accepted that there was differential treatment between lone parents who were victims of domestic abuse and living in refuges and families where one parent (or partner) was in work. The defendant, as I understood it, also accepted that there was differential treatment between the children of each of those groups of parents and children in families where one parent was working. The defendant accepted that the matter fell within the scope of

Article 8 ECHR

. The defendant accepted that the differential treatment was on the grounds of other status in relation to those lone parents in receipt of carer’s allowance but not in relation to those who were described as lone parents who were victims of domestic abuse (although, possibly, such parents if living in a refuge might have a status).

[34]Mr Dunlop for the defendant accepted that a key issue was whether the defendant could objectively justify the differential treatment. In summary, Mr Dunlop submitted that the Regulations in the present case focussed on enabling parents to work or work more hours. They were not concerned with the promotion of education or the provision of respite or other social welfare type benefits. As such, the differential treatment pursued a legitimate aim namely incentivising and facilitating parents to work or work more hours. The policy giving rise to that differential treatment involved choices on the best means of allocating limited resources to achieve social policy goals (here facilitating and incentivising work). That policy had been considered by the executive and debated and approved by the legislature. The purpose of the scheme was to provide additional free childcare to certain groups to facilitate the policy aim; it did not remove any existing entitlement of the claimants and was not intended to disadvantage the claimants. In the circumstances, submitted Mr Dunlop, the defendant had demonstrated that the differential treatment was objectively justified. ANALYSIS OF THE ISSUES The Legal Framework

ANALYSIS OF THE ISSUES

[35]

Article 14 ECHR

provides that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

[36]

Article 8(1) ECHR

provides that everyone has the right to respect for, amongst other things, his private and family life. In considering whether the Regulations involve a breach of Article 14 read with

Article 8 ECHR

in this case, it is necessary to consider whether(1) there is differential treatment

(2) on grounds of other status

(3) in relation to a matter falling within the scope, or ambit, of

Article 8 ECHR

and

(4) which the defendant cannot show is objectively justified.

[37]In relation to objective justification, what the defendant needs to justify is the differential treatment complained of, that is, it is the discriminatory effects of the measure or policy, not the policy itself: see the discussion by Baroness Hale at paragraph 188 of R(SG) v Secretary of State for Work and Pensions) [2015] 1 W.L.R. 1449). In this case, it is the provision of 15 hours a week of additional childcare free of charge to children aged three and four where one parent (or a partner) is working but not providing that additional childcare to children of lone parents unable to work because they have caring responsibilities (in this case, recognised by the fact that the parent is entitled to a carer’s allowance) or are the victims of domestic abuse. In this case, if there is differential treatment:

“ Such difference of treatment is, however, discriminatory if it has no objective or reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised” (per the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR at paragraph 61).”

[38]In matters relating to the justification of differential treatment arising out of general economic or social measures, the courts will generally respect the choice of the legislature or government unless that choice is manifestly without reasonable foundation. Courts should exercise considerable caution before interfering with a scheme approved by Parliament. See, e.g. R (MA) v Secretary of State for Work and Pensions [2016] 1 W.L.R. 450 at paras. 29 to 38 per Lord Toulson, citing and applying Humphreys v Revenue and Customs Commissioners [2012] 1 W.L.R. 1545, and Matthieson v Secretary of State for Work and Pensions [2015] 1 W.L.R. 3250 at paragraphs 24 to 26 per Lord Wilson. That is particularly so when there is evidence that the decision-maker has addressed its mind to the particular issue under consideration or the issue has received active consideration by Parliament (see R (Tigere) v Secretary of State for Business, Innovation & Skills [2015] 1 W.L.R. 3820 at paragraph 32 per Baroness Hale). The grounds of justification must still be considered carefully by the court and a point may come “where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable” (Humphreys [2012] 1 W.L.R. 1545 at paragraph 18, per Baroness Hale). The court must therefore scrutinise with care the justifications advanced for a policy even in the area of economic and social policy: see R (MA) v Secretary of State for Work and Pensions [2015] 1 W.L.R. 4550 at paragraph 30.

[39]There is an issue as between the defendant and the claimants as to the appropriate approach to be taken by the courts to the question of whether differential treatment is objectively justifiable. The defendant submits that, in the light of R (MA) v Secretary of State for Work and Pensions, all the court need ask, in the context of a policy dealing with the allocation of resources to achieve social policies, is whether the measure giving rise to the differential treatment is manifestly without reasonable foundation. Mr Dunlop submits that, in any event, the differential treatment would be objectively justified adopting the claimants’ preferred approach.

[40]The claimants contend that the court should adopt a more structured approach to objective justification as seen, for example, in cases such as Tigere and ask(1) does the measure pursue a legitimate aim

(2) is the measure rationally connected to that aim

(3) could a less intrusive measure have been adopted to achieve that aim and

(4) bearing in mind the consequences of the measure, the importance of the measure and the extent to which the measure will achieve those aims, has a fair balance been struck between the rights of the individuals affected and the interests of the community? The claimants recognise that the courts will generally approach the first three questions by asking whether the legislature’s view is manifestly without reasonable foundation. They contend that that approach does not apply to the fourth element, namely whether the measure strikes a fair balance between the rights of the individual and the interests of the community. They accept that, even here, the court will accord significant respect to the view of the legislature or policy maker that the balance struck is a fair one particularly, it seems, where that issue has actively been considered by the legislature or policy-maker. The claimants rely on the observation of Lord Mance at paragraph 52 of his judgment in In re Recovery of Medical Costs

[2015] AC 1016

“52 I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature's decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of “manifest unreasonableness”

. In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker.”

[41]A similar issue, based on essentially similar arguments, arose in R (TP and AR) v Secretary of State for Work and Pensions

[2018] EWHC 1474 (Admin)

. As I said in that case, I recognise the apparent difference of emphasis between the two approaches. I doubt that the different approaches would lead to different results in the context of changes extending the provisions of particular benefits to particular groups where the legislature or decision-maker has consciously considered what groups, subject to what criteria, should be eligible to obtain those benefits. That is likely to be the case as the rights, or interests, of the individual will in fact flow from the decisions of the state as to who should be eligible to receive additional benefits rather than involving a situation where, for example, the courts are weighing the justification for a policy against a specific right derived from the Convention. In any event, for present purposes, I propose to review the differential treatment by reference to both approaches.

Differential Treatment Falling within the Ambit of Article 14 ECHR read with Article 8 ECHR

[42]As indicated, as I understand it, the defendant accepts that the Regulations involve differential treatment as between families where one parent (or partner) is working and lone parents who cannot work because of their caring responsibilities (as evidenced by the fact they are in receipt of carer’s allowance) or because of the difficulties that they are encountering because they are a victim of domestic abuse and living in a refuge. For completeness, I agree that there is differential treatment between both the parents and the children of families where one parent is working as compared with families comprised of a lone parent and children, where the lone parent cannot work because of caring responsibilities (at least as in this case where those caring responsibilities are recognised by the fact that two of the adult claimants are eligible for carer’s allowance). Children in a family where a parent (or partner) is working will be entitled to the additional 15 hours of free childcare. A child of a lone parent who cannot work because the parent has substantial caring responsibilities will not be eligible. Similarly, on the evidence, I accept that there is differential treatment between both parents and children in families where one parent is working as compared with a family comprised of a lone parent who cannot work at present because she is the victim of domestic abuse and has had to leave the family home and is living in a refuge. The reality is that that parent will be unlikely to be able to work, at least until she is provided with stable housing. As FB explains, the address of the refuge has to be kept secret to protect the women and children living there. In addition, a lone parent may need assistance from time to time with children even if the children were able to access to 30 hours childcare a week. However, visitors, who might perform that task, are not allowed at the refuge.

[43]Both the claimants and the defendant accept that the provision of childcare is a matter that falls within the ambit of

Article 8(1) ECHR

(although there is no claim, or suggestion, that not providing the additional 15 hours of free childcare involves any infringement of

Article 8 ECHR

). On that basis, the differential treatment does relate to the enjoyment of rights derived from the ECHR and so falls within the scope of

Article 14 ECHR

Other Status

[44]There is an issue as to whether the differential treatment is by reason of other status within the meaning of

Article 14 ECHR

. There is no suggestion here of any direct, or indirect, discrimination on any of the specific grounds such as sex, race, colour, language, religion, political or other opinion, nationality or ethnicity or birth. The question is whether the differential treatment arises out of some other status.

[45]In my judgment, the situation here is analogous to that in Mathieson v Secretary of State for Work and Pensions [2015] 1 W.L.R. 3250. There, at paragraph 22, Lord Wilson (with whom Baroness Hale, Lord Clarke and Lord Reed JJSC agreed) cited the approach taken by the European Court of Human Rights in its judgment in Clift v United Kingdom, reported in The Times, 21 July 2010 and said that:

“The question whether there is a difference of treatment based on a personal or identifiable characteristic … is … to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective …” (Emphasis supplied by Lord Wilson.)

[46]The Supreme Court there considered differential treatment between severely disabled children who needed a lengthy stay in hospital (a period in excess of 84 days) and disabled children who did not. The Supreme Court concluded that a severely disabled child in need of a lengthy hospital stay did have a status for the purposes of

Article 14 ECHR

: see per Lord Wilson at paragraph 23 and per Lord Mance at paragraph 60.

[47]In the present case, the differential treatment does, in my judgment, arise out of identifiable characteristics on the part of the claimants. In the case of the lone parent claimants in receipt of carer’s allowance, they are recognised as carrying out at least 35 hours of care each week. By reason of their caring responsibilities, they are unlikely to be able to work. As children of lone parents in receipt of carer’s allowance and unable to work, they are not eligible to receive the additional 15 hours of free childcare. That arises from identifiable characteristics on the part of the lone parents and their children.

[48]The position is more complex in relation to lone parents of domestic abuse. Ultimately, however, I am satisfied that it is correct to regard the differential treatment as arising out of a status. A lone parent who is the victim of domestic abuse and has had to leave the family home and live, with her child, in a refuge, is unlikely to be able to work, at least whilst living in the refuge. A child of a lone parent in that situation will, therefore, not be eligible to receive the additional 15 hours of free childcare a week. That arises from identifiable characteristics on the part of a lone parent, and her children, who have had to leave the family home because of domestic abuse and are living in a refuge.

THE ISSUE OF OBJECTIVE JUSTIFICATION

[49]The central issue in this case is whether the defendant can demonstrate that the differential treatment is objectively justified. What has to be objectively justified is the effect of the differential treatment, that is the provision of an additional 15 hours a week of free childcare to children of working parents (as defined) but not the provision of those additional 15 hours of free childcare to children of lone parents such as the claimants who cannot work.

The Aim

[50]The aim, or purpose, underlying the 2016 Act and the Regulations is to facilitate, and provide an incentive to, parents who wish to work or to increase their hours of work. The aim is to enable parents to work by providing additional free childcare to enable them to work when they might not otherwise be able to do so.

[51]The aim appears from the terms of the 2016 Act itself. That imposes a duty on the Secretary of State to secure free childcare for qualifying children “of working parents”. It is correct that the Act provides for a power to make regulations; but that power has to be read in context and it is a power, amongst other things, to make provision about “what is, or is, not paid work” and “to specify circumstances in which a person is, or is not, to be regarded as in work”: see section 1(4) of the 2016 Act. The regulation-making power is, therefore, connected with defining what amounts to working. The purpose of the 2016 Act is further confirmed by its long title: it is, amongst other things “An Act to make provision about free childcare for young children of working parents…”.

[52]The aim is further confirmed by the Regulations themselves. A parent has to meet three conditions. The first is that the main reason, or one of the main reasons, the parent seeks free childcare is to enable the parent (or a partner) to work: see regulation 4(2) of the Regulations. The second is that the parent is in qualifying paid work as defined: see regulation 4(4) of the Regulations. It is true that there are exceptions where the parent is temporarily unable to work, for example, due to maternity or paternity leave (regulation 8 of the Regulations) or where the parent is unable to work or is paid a carer’s allowance but the other parent (or partner) is in paid work (regulation 9 of the Regulations). That confirms that, whilst there is a degree of flexibility incorporated within the definition of a working parent, the provision of additional hours of free childcare is tied to the fact that one adult member of the household is working.

[53]The aim is also confirmed by the ministerial statements made when the Bill which became the 2016 Act was being debated and by the policy statement issued in December 2015. The court may have regard to ministerial statements, and the policy statement, as relevant background in considering the aim underlying the relevant legislative provisions. As Lord Nicholls observed in Wilson v First County Trust (No. 2) [2004] 1 A.C. 816 “the court will look primarily at the legislation but not exclusively so and may have regard to additional background material and ministerial statements”: see paragraphs 61 and 64 to 65 of the judgment.

[54]The ministerial statements referred to above confirm that the aim underlying the relevant legislative provisions giving rise to the differential treatment was to enable parents to return to work, or to increase their hours of work, and the provision of additional hours of free childcare was seen as a means of facilitating or promoting that aim. The aim is made explicit in the December 2015 policy statement which states that the provision of additional free childcare will support parents to work or to work more hours.

Objective Justification – Initial Observations

[55]In terms of considering the defendant’s objective justification for the differential treatment, it is relevant to bear in mind the following. First, the aim is concerned with facilitating or incentivising parents to return to work or to increase their hours of work. Secondly, the policy seeks to achieve that aim by providing an additional 15 hours a week of free childcare (in addition to the 15 hours already provided to all three and four year olds). The policy does not remove or limit any existing entitlement of any group of children. It is not intended to disadvantage any particular group of children. It is intended to provide further additional benefits to particular groups of children to enable the parents of those children to work. Thirdly, it is relevant to bear in mind that the policy is aimed at, and focussed on, enabling parents to work. It is not intended to provide other social benefits such as respite care for parents or additional assistance to children with particular needs. There is other social welfare legislation dealing with the provision of services and assistance to children and parents who may need such assistance. Fourthly, the issue of the scope of eligibility was debated in the legislature both when the Bill was being considered and when the draft regulations were before Parliament. It was clear that the legislature knew that the criteria to be adopted would require that one parent (or partner) in a family would need to be in qualifying work in order for a child to be eligible for the additional 15 hours of free childcare and that the children of lone parents who were not working would not be eligible. The legislature, therefore, has considered and endorsed the measures as being appropriate to achieve the aim.

Specific Issues or Criticisms

[56]Mr Wise for the claimants made a number of specific criticisms of the policy, and the evidential basis for the policy. It is, of course, for the defendant to demonstrate that the differential treatment is objectively justified. The claimants do not have to demonstrate that it is not. But Mr Wise refers to these criticisms as indicating that the defendant is not in a position to establish that the differential treatment is objectively justified. It is appropriate, therefore, to consider the principal criticisms made, and the main evidence relied upon.

The statistical evidence

[57]One question concerns the extent to which the policy would be likely to encourage parents to return to work or increase their hours of work. The evidence of Ms Dyson, who is the civil servant within the defendant’s department responsible for the free childcare programme, referred to pilot schemes where working parents were offered a total of 30 hours free childcare a week. This involved 400 parents being offered 30 hours of childcare in seven local authority areas and all parents in one local authority area in 2016. All parents in four local authorities were also offered 30 hours free childcare in 2017. The results were evaluated in a July 2017 report prepared for the Department for Education. Ms Dyson notes that 23% of mothers and about 9% of fathers (Ms Dyson says 11% but the underlying document suggests 9%) stated that they had increased their working hours (the evidence does not say by how many hours). 11% of mothers thought that in the absence of the additional hours of childcare they would not be working, and 24% of mothers thought that they would be working fewer hours. Ms Dyson recognises that that is a limited survey. Ms Dyson also refers to a September 2017 survey of intentions undertaken before the implementation of the policy relating to the provision of additional hours of child care. She also refers to the fact that an independent evaluation of the policy will be carried out after its first year of implementation.

[58]The claimants had permission to adduce an expert report from James Harvey, the director and founder of a microeconomics consultancy. He refers to the fact that the evidence on which the July 2017 evaluation report was based indicates that 70% of mothers and 89% of fathers reported no change in working hours. He refers to the fact that the evidence indicates that 2% of mothers and 1% of fathers started work. He refers to the evidence indicating that 5% of mothers and about 1% of fathers had reduced their working hours. Mr Harvey then gives his interpretation of the evidence and says that the policy has for a large majority of eligible mothers and fathers subsidised their childcare without incentivising them to start work or to work more hours. The implication is that if the policy is not achieving its aim, then any differential treatment arising out of the policy cannot be justified.

[59]There are a number of reasons why I do not consider that Mr Harvey’s analysis does cast doubt upon the ability of the defendant to demonstrate that the differential treatment in the present case is objectively justified. It is, ultimately, a political or social judgment as to whether the likely gains justify the use of public resources to support the provision of additional childcare. On the limited evidence, 23% of mothers and 9% of fathers have increased their hours. 2% of mothers have started work. Some think they would have stopped working or reduced their working hours if the additional hours were not available. Others have reduced work notwithstanding the provision of additional hours of childcare. The defendant is, in my judgment, entitled to form the judgment that the figures overall do support the view that the early evidence is consistent with, and supports the aim of, incentivising and facilitating parents to work. Furthermore, in relation to policies such as the present, the aim is to change behaviour. The defendant is entitled to form a view as to whether the proposed policy is likely, over time, to lead to a change in behaviour and to keep that matter under review, as it is doing, in order to assess whether the policy is having the effect aimed for and whether its continuation (and the continued differential treatment) is justified. In the circumstances, I do not consider that the limited statistical evidence available at present does cast doubt upon the ability of the policy to achieve its aim.

[60]For completeness, I note that Mr Harvey draws attention to an error in the defendant’s detailed grounds. The grounds state that the survey indicates that working mothers worked 23% more and working fathers worked 11% more. As Mr Harvey points out, that is not, in fact, a correct interpretation of the evidence of Ms Dyson or the evidence underlying the figures. The figures involve 23% of working mothers increasing their working hours (by any amount – not necessarily by 23% - and the exact increase is not, it seems, known). The same applies to the figures for working fathers. Whilst it appears that those who drafted and approved the detailed grounds may have erred, there is nothing to suggest that the correct position was misunderstood by those who had responsibility for the policy. Mr Harvey also refers to a statement in paragraph 42 of the detailed grounds of defence about whether extending the scheme to children of lone parents unable to work would undermine the aim of the policy by taking away the incentive to work. Mr Harvey expresses his view on why he does not agree with the statement. The possible undermining effect of extending the policy was not a matter that, in truth, figured in the arguments relating to objective justification and I did not find this issue of assistance in deciding whether the defendant had objectively justified the differential treatment.

The Benefits of Additional Childcare

[61]An issue arose at the hearing in July 2018 as to whether the provision of 15 additional hours of free childcare (in addition to the 15 hours of free childcare for which all three- and four-year old children are eligible) provided educational or developmental benefits for those children eligible to receive the additional hours. The policy underlying the 2016 Act and the Regulations is not, of course, intended to provide educational or developmental benefits for children. The policy is intended to facilitate and incentivise parents to work, or to increase their hours of work. It is not a case where the government has set out to provide educational benefits for one group of children but decided not to provide the educational benefits to another group. Nevertheless, the claimants believe that there will be educational benefit flowing from the provision of the additional 15 hours of free childcare. They submit that, even if the intention was not to benefit one group, the fact that one group of children will be benefitted, and the other will not, is a relevant factor in assessing whether the defendant can demonstrate that the policy is objectively justified.

[62]Ms Dyson in her evidence says that early education is vital to ensuring that children have the best start in life and that is why all three and four year olds are eligible for 15 hours of free childcare a week. The evidence of Ms Dyson is that at the time that the relevant provisions were introduced the most relevant up to date evidence was the Effective Pre School, Primary and Secondary Education Project (“EPPSE”). Ms Dyson says that the evidence from EPPSE indicated that there was not a significant difference in terms of short-term educational benefits between part-time and full-time childcare and what was more important was the duration of the regular childcare (that is, the number of months or years for which a child attended rather than the number of hours a week the child attended). In addition, Ms Dyson says that the department considers that disadvantaged children often start off behind more advantaged children which is why disadvantaged two year olds are also eligible to receive 15 hours of free childcare a week.

[63]The relevant paragraphs of EPPSE say (footnotes omitted) this under the heading of “Main Findings – The impact of pre-school – quantity and quality”:

“Analyses also explored cognitive gains from entry to the pre-school study until start of primary school and whether this relates to duration, in terms of number of months, of pre-school experience. The duration of pre-school showed a significant positive link with young children’s cognitive progress during pre-school for all five cognitive measures. A longer period of months of pre-school experience was associated with greater gains, even when other factors are controlled. “By contrast, the number of sessions for which a child was registered per week was not found to relate to amount of cognitive gain during pre-school, when the impact of other factors was controlled. There was no evidence that full-time provision (10 sessions per week) resulted in better outcomes than part-time provision (i.e. 5 sessions). “Taken together the findings suggest that an extended period of pre-school experience on a part-time basis is likely to be more advantageous than a shorter time period of full-time provision.”

[64]There is a footnote to this last paragraph which says that the total number of sessions a child was recorded as having attended a pre-school centre was related to greater progress for language and verging on significance for pre-reading and spatial awareness and reasoning. It noted that those who attended a higher total number of sessions made greater cognitive gains but that “Duration, however, showed a stronger link than attendance when both measures were tested in the statistical models”.

[65]The claimants have adduced evidence from Professor Siraj who was one of the academic researchers involved in, and co-leading, this study. Professor Siraj’s evidence, read fairly and as a whole, is saying that it would be wrong to treat the EPPSE study as establishing that there was no significant difference in terms of short-term educational benefits between part-time and full time childcare for disadvantaged children. In paragraph 5 of her witness statement, Professor Siraj says this is because:

“it is important to understand that the findings of the EPPSE study record the effects on the group studied as a whole, not individual effects or effects broken down between different sub-groups such as by income, parental education or other markers of disadvantage. As one of the authors of the report I can say with authority that the EPPSE report does not find that disadvantaged children like the Claimants would not benefit from additional hours. The Defendant’s reliance on the EPPSE study in this respect is flawed as the report does not support the Defendant’s conclusion. It should be noted that the DfE had not asked EPPSE researchers to test differences in effects of [full-time] versus [part-time] provision for different groups of children (we did test and find higher quality of education benefitted those with poorer home learning environment).”

[66]Reading Professor Siraj’s statement as a whole, she is not contending that the EPPSE study establishes that full-time childcare leads to increased educational attainments for children either generally or for those from particular types of homes. What Professor Siraj is saying is that it is wrong in her view to take the statements in EPPSE and treat those as establishing the contrary proposition, namely that the duration of time for which childcare is utilised is a better indicator of achievement than whether it is full or part-time. Indeed, Professor Siraj seems to take the view that the EPPSE study does not assist in the current debate on whether or not part-time or full-time childcare would provide short-term educational benefits to certain groups of children. That is because the EPPSE study did not seek to measure that and it should not be assumed that children from certain types of disadvantaged background would not benefit from attendance for a greater number of hours. Professor Siraj does refer to the fact that EPSSE itself showed that the early home environment continues to have an impact on children’s educational achievement and development which is stronger than the impact of any of the measures of pre-school education. Professor Siraj then sets out her views on how parents’ caring responsibilities and domestic abuse may impact on the early home environment.

[67]Professor Siraj refers at the end of her statement to the fact there is less research available assessing the impact of additional hours of childcare. She recognises that evidence is hard to obtain because of the variables involved. She refers to two American studies. The first indicated that full-time rather than half-day assignment had a positive, substantial benefit on literacy skills. The second, found that full-day pre-school participants had higher scores than part-day peers in terms of socio-emotional development, language, mathematics and physical health. However, as Ms Dyson says in her second statement, these two studies relate to the United States of America where the nature and delivery of early years childcare is different. Furthermore, the first study related to five year olds (those who had entered kindergarten, the equivalent, it seems, to primary school in England) and was not dealing with three and four year olds which is the focus of the Regulations in this case. Further, Ms Dyson draws attention to the fact that both studies had smaller samples than EPPSE.

[68]Ms Dyson also refers in her first witness statement to a Study of Early Education and Development (“the 2017 Study”) published in July 2017 which suggests that increased time spent in formal early childhood education and care is associated with improved results as at the age of 3. Ms Dyson says that the 2017 Study is a long-term study and the picture is still emerging. It relates to the provision of childcare to children younger than the children for whom the additional 15 hours of free childcare is provided. She indicates that it is difficult to be certain about the longer-term impact of changes seen at early stages of development.

[69]Standing back from all this material, as a minimum, the material does not establish that there are significant educational or developmental gains from the provision of 30 hours, rather than 15 hours, of childcare a week for three- and four- year olds. The material does not establish that, from an educational point of view, children of parents who do not qualify for the additional 15 hours of childcare will suffer a significant difference in terms of short-term educational benefits as compared with those children who do qualify and do receive the additional 15 hours of childcare a week.

[70]Mr Wise also drew attention to an e-mail exchange between civil servants and Professor Melhuish. On 25 September 2015, at 10.55 a.m., a civil servant e-mailed Professor Melhuish asking him if he could send an informal note that he could share with the relevant minister. That note, it was said, would be an elaboration of discussion at an earlier meeting and what would be adequate, good quality 30 hour childcare (what number of staff, with what qualifications, would need to be involved). That e-mail appears, therefore, to be focussing on what the additional 15 hours of childcare would comprise. The material parts of Professor Melhuish e-mail in reply were as follows:

“The EPPSE evidence clearly indicates that around 15 hours/week of centre care is the most cost-effective way of providing Early Childhoood Education and Care (ECEC). For the general population providing 15 hours/week early education provides as much as benefit in terms of later development as 30 or 40 hours/week. This benefit is apparent from ages 2 years upwards. Note that the benefit of the 15 hours/week is best provided on a 3 hrs/day basis for 5 days rather than 2 days of 7.5 hours. However there is some evidence that for the most disadvantaged families, circa bottom 10-20% could provide additional benefit in terms of child development. Hence on the basis of this evidence the increase in hours from 15 to 30 hours/week can be seen largely in terms of the increased opportunities provided for parental employment and hence improving parental participation in the labour market, for the general population. For the most disadvantaged families we could see potential benefits in child development also.”

[71]Mr Wise draws attention, in particular, to the sentences indicating that there is some evidence that more hours a week for the most disadvantaged families could provide additional benefits in terms of increased child development. Again, the e-mail has to be read as a whole and in context. It is responding to a request for initial views on what would be the best form of 30 hours a week childcare. The e-mail records a recognition that generally 15 hours a week of childcare, in the form of 3 hours a day for 5 days a week, is the most cost-effective method of providing childcare. It recognises that there is some evidence that disadvantaged families might benefit although the source and strength of the evidence is not recorded in the e-mail. But the e-mail then goes on to say that on the basis of the evidence the increase in terms of 15 to 30 hours a week is to be seen largely in terms of increased opportunities for parental employment whilst for the most disadvantaged families there could be other potential benefits. That is not, read fairly and as a whole, indicating that the additional 15 hours a week of childcare will lead generally to educational or developmental benefits. It is recognising that the increase is largely to be seen in terms of increased parental participation in the labour force whilst leaving open the possibility that there is some evidence that there could be some potential (unquantified) benefits for the most disadvantaged families.

[72]It is on the basis described above in relation to the evidence generally, and the e-mail from Professor Melhuish, that the extent of any disadvantage resulting from the decision to provide additional childcare provision for children of working parents but not children of lone parents unable to work will need to be considered.

Extent of consideration by the legislature and the government

[73]Mr Wise also drew attention to cases indicating that where the legislature or executive has not analysed the effects of any disadvantage arising from a policy that may affect, or undermine, the ability of a defendant to demonstrate that the differential treatment arising out of a policy is objectively justifiable. These included the observations at paragraphs 51 and 52 in In Re Brewster [2017] 1 W.L.R. 519. Mr Wise placed particular reliance on the decision in R (Coll) v Secretary of State for Justice (Howard League for Penal Reform intervening)

[2017] 1 WLR 2093

. There, the claimant, a woman, challenged the arrangements for the provision of approved premises for accommodation of prisoners on release on licence contending that there was discrimination in relation to women prisoners as there were fewer such premises available and women would be more likely to be released to accommodation far from their homes than male prisoners. As part of the challenge, the claimant contended that the defendant there had not considered the problem of providing sufficient and suitable premises for women. The High Court accepted that the defendant was in breach of her duty under the public sector equality duty imposed by section 149 of the Equality Act 2010 which required her to have due regard to equality matters as defined. In that context, the Supreme Court held that the defendant was not in a position to demonstrate that the differential treatment in that case was objectively justified as the defendant had not addressed the possible impacts upon women, had not considered whether there was a disadvantage and if so how significant it was and what might be done to mitigate it. Mr Wise does not suggest (and there is no claim) that the defendant here is in breach of the public sector equality duty. He does submit that the defendant has not considered the disadvantages of the policy for the children of lone parents unable to work and so would not be in a position to justify it.

[74]The policy here is a policy to provide an additional 15 hours of free childcare to the children of working parents. The aim was to enable parents to work or increase their working hours. The extracts from Hansard makes it clear that the legislature, and the government, were well aware that the criteria being adopted would mean that children of lone parents would not qualify for the additional 15 hours of free childcare if the lone parents were not working. The December 2015 policy statement made it clear that the government considered that the provision of 15 hours of free childcare a week ensured that three and four year olds were prepared for school and improved their life chances (see the extract set out above). All three and four old children are eligible to receive 15 hours a week of free childcare as was made clear in debates in the House of Commons and the House of Lords. As indicated above, there was no evidence available that the provision of an additional 15 hours of free childcare would provide significant educational benefits to three and four year olds. In addition, in relation to lone parents who had suffered domestic abuse, the extracts demonstrate that the issue of the needs of women in refuges were considered in a debate in the House of Commons. The legislature and government knew that children of those lone parents if they did not work would not be eligible to receive the additional 15 hours free childcare. As indicated, there was no evidence to suggest that the children would benefit educationally from an additional 15 hours of free childcare. The extracts demonstrate that consideration was given to the needs of women in refuges and extra financial support was to be provided. Consideration was to be given to what was described as a “grace period”, that is, where a woman had been in work, but had had to give up that employment on leaving the family home because of domestic abuse, allowing her children to continue to receive the additional 15 hours of childcare for a period of time whilst she was not in employment. Guidance was subsequently issued to local authorities in relation to the continuation of funding for childcare in such circumstances for a period of time. On the evidence, this is not a case where there was a failure to consider the effects of the policy on the children of lone parents who were not able to work.

[75]For completeness, I note that paragraph 8(8) of the defendant’s skeleton argument suggests that other matters may have been debated in the House of Common on 25 January 2016 and they may be relevant to this issue. However, extracts from the debate dealing with those matters are not in evidence before this court (there is one short extract which the evidence suggests is from that debate dealing with funding for women’s refuges and the grace period referred to above). As the defendant has not included this in the material before the court, it is not possible to assess its relevance or take it into account.

Article 3 of the United Nations Convention on the Rights of the Child

[76]Mr Wise also drew attention to the United Nations Convention on the Rights of the Child (“the UN Convention”) and General Comment No 14 of the rights of the child to have his or her best interests taken as a primary consideration.

[77]Article 3.1 of the UN Convention provides that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

[78]It is also right to note Article 18.3 of the United Nations Convention which provides that:

“States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.”

[79]General Comment No. 14 sets out of the views of the Committee on the Rights of the Child as to how Article 3 should be approached. Paragraph 6 of the General Comment says that the bests of the child is a three fold concept. First, in paragraph 6(a), it says that the right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered is a substantive right. Secondly, in paragraph 6(b), it says that it is a principle of interpretation: where a legal provision is open to more than one interpretation, it should be given the interpretation which most effectively serves the child’s best interests. Thirdly, in paragraph 6(c), it says that it is a procedural rule: where a decision is to be made that will affect a child, a group of children or children generally, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Further procedural obligations are also referred to in paragraph 6(c) of the General Comment including showing how the interest has been taken into account, the criteria used to assess best interest, and how that has been weighed against other considerations. Later parts of the General Comment deal with the legal analysis of Article 3.1 of the UN Convention. It says that actions concerning children is to be understood broadly. Paragraph 20 says that this “does not mean that every taken action by the State must incorporate a full and formal process of assessing and determining the best interests of the child” but that where a decision will have “a major impact” on a child or children, a greater level of detailed procedure is appropriate.

[80]Mr Wise placed particular emphasis on what he submitted was a failure to satisfy the procedural obligation that paragraph 6(c) of the General Comment says exists. He submitted that there had been no adequate consideration of the detrimental effects of the policy on the children of lone parents who were unable to work. Consequently, he submitted, it was not possible for the government to form a view about whether the policy was in the bests interests of the children of lone parents who were not working. It would, therefore, not be possible for the government to demonstrate that the policy was objectively justified. He drew attention to the observations of Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] 1 W.L.R. 3250 at paragraphs 39 to 44 indicating that where there had been a breach of the procedural obligation referred to in paragraph 6(c) of the General Comment, that led to a breach of the substantive rights of the child under Article 3.1 of the UN Convention which, in turn, may be relevant to the question of whether the decision-maker could justify differential treatment.

[81]First, the provisions of the UN Convention (and the comments of the committee on the rights of the child), as an unincorporated treaty, is not part of the law of England and Wales and not directly applicable in domestic courts as such: see R (JS) v Secretary of Work and Pensions [2015] 1 W.L.R. 1449 per Lord Reed at paragraph 82, per Lord Carnwarth at paragraphs 114 and 115, and per Lord Hughes at paragraph 137.

[82]Secondly, provisions of international law, such as the provisions of the UN Convention, may depending upon the facts be relevant to the interpretation of rights derived from the ECHR: see, by way of example, the observations in R (JS) v Secretary of Work and Pensions [2015] 1 W.L.R. 1449 of Lord Reed at paragraphs 83 to 86, per Lord Carnwarth at paragraph 116, and per Lord Hughes at paragraph 141. See also the observations of Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] 1 W.L.R. 3250 at paragraph 43

[83]The real issue in the present case is whether, and if so how, arguments relating to whether or not there has been a failure to comply with Article 3.1 of the UN Convention assist in the task of deciding whether the defendant has been able to justify the effects of differential treatment in the present case. That task depends upon, amongst other things, consideration of the nature of the breach of Article 3.1 (if established), the nature and effect of the differential treatment at issue, the links (if any) between the differential treatment complained of and the best interests of the children said to be affected and all other relevant factors. The difficulties of identifying whether any alleged breach of Article 3.1 assists can be seen in the JS case itself, which concerned Article 14 read principally in connection with Article 1 of the First Protocol (not, as here, Article 8) ECHR. The case concerned a policy which imposed a cap on the amount of benefits that a person could claim by way of certain welfare benefits. That gave rise to differential treatment as women were more likely to be affected by the imposition of the cap. The majority decided that any consideration of the effects on the children of the mothers concerned did not, ultimately, assist in deciding whether the reduction in benefits of the parents was objectively justifiable. The reasoning in JS has been considered in detail by the Court of Appeal in R (DA) v Secretary of State for Work and Pensions

[2018] EWCA Civ 504

, a decision which itself is on appeal to the Supreme Court.

[84]Against that background, I consider the position in the present case. The policy in question is one which provides for an extension in the provision of free childcare. All three- and four-year old children are eligible to receive 15 hours a week of free childcare. The policy is to extend the entitlement so that children in families where at least one parent (or a partner) is working in order to facilitate or incentivise the parent to work, or work more hours. It is thought that that will benefit the children of eligible parents as it is thought that that may assist families to move out of poverty. As I understand it, no complaint is made about the position of those children of working parents who will now be eligible for the additional 15 hours of free childcare. It is not suggested that the policy does not in some way accord with the best interests of those children or that the process by which the policy was adopted and became law involved any procedural failures in respect of those children.

[85]Rather, the claim is that by not extending additional hours of childcare to children of lone parents who are unable to work (because in this case they have caring responsibilities or are the victims of domestic abuse) involves differential treatment which is not objectively justified. The claim, essentially, is that the decision-maker has not considered the detrimental effects of not providing additional free chare to the children of lone parents and so cannot justify seeking to achieve its aim of enabling parents to work, or work more hours, by a policy of providing additional free child care only to the children of those parents.

[86]There are different categories of benefit that are said to flow potentially from the provision of the additional 15 hours of free childcare. First, it is said that there are potential educational and development benefits to the children concerned. It is, in effect, submitted that the decision-maker had not considered whether not providing the additional 15 hours of free childcare to children of lone parents unable to work has a detrimental effect on those children as they would not have those educational and developmental benefits. As the decision-maker has not considered that it is said that they are not in a position to justify a policy of seeking to enable parents to work by providing the children of those parents with potentially valuable benefits but not providing them to children of lone parents who cannot work. It was less clear whether the claimants are suggesting that the non-provision of the additional 15 hours of free childcare in fact fails to reflect the best interests of the children in terms of educational and developmental advantages and the defendant has not established sufficiently strong considerations to outweigh that as a primary consideration although, logically, that issue could also arise.

[87]The position is that the evidence available at the hearing in July 2018 did not support the contention that an additional 15 hours of childcare (in addition to the 15 hours that all three- and four-year olds are eligible to receive) does give rise to significant educational and developmental advantages for the reasons discussed above. The legislature and the government were aware that the evidence available at the time established that the provision of 15 hours of childcare gave rise to educational advantages. That emerges, for example, from the December 2015 policy statement issued with the Bill. But the evidence did not establish that there is a significant educational or developmental benefit from the provision of an additional 15 hours a week (making 30 hours a week in total). In those circumstances, I do not consider that there has been any relevant procedural failure on the part of the legislature or government in making regulations which provide for additional 15 hours of childcare for children of working parents but not providing that additional childcare for children of non-working parents. I do not consider on the facts that the legislature or government did fail to comply with any procedural obligations said to be inherent in Article 3.1. Paragraph 6(c) of the General Comment must be read in context and having regard to paragraph 20. In a context where the state adopts a general legislative measure intended to facilitate parents’ ability to work by providing additional hours of free childcare, and where the available evidence at the time did not establish that significant educational or developmental benefits result from those additional hours, there has been no failure to consider adequately the effects of adopting the measure.

[88]Even if there had been such a procedural failure (which I do not consider there has been) the role of the court is to determine if the defendant has objectively justified the differential treatment for the purposes of Article 14 read with

Article 8 ECHR

. On the evidence available at the hearing in July 2018, there was not yet clear evidence of any significant educational or developmental benefit being provided by the additional 15 hours a week of free childcare and the matter was being monitored and studies undertaken. In all those circumstances, I conclude that the defendant was not, in effect, prevented from establishing that the effects of the differential treatment arising out of the measures adopted in the present case was objectively justified on the material available at the time of the July hearing by reasons of considerations relating to Article 3.1 of the UN Convention and the best interests of children of lone parents who are unable to work because of caring responsibilities or because they are the victims of domestic abuse.

[89]For completeness, I note that the adult claimants refer in their witness statements to other benefits that may accrue to them and their children if their children were able to access the additional 15 hours of childcare, such as the ability of the parents to have time for themselves or to undertake other responsibilities or to address issues of isolation on the part the children. See the witness statements of the claimants for a full description of these matters which are summarised, briefly, above. Those matters and those concerns are, however, ones that fall to be addressed by different legislation aimed at ensuring the provision of adequate services to parents and to children to address their needs. The present policy is not intended to provide such benefits to parents or their children. Those benefits, if needed, fall to be assessed under other social policy legislation. The legitimate aim underlying the differential treatment in the present case, is incentivising and facilitating parents to work, or increase their hours of work. The fact that children, or parents, may have needs for services or assistance arising out of their particular situation (and not because the parent wants to work) and which might need to be addressed by other legislation does not undermine the objective justification of a policy giving rise to differential treatment which is linked to enabling parents to work.

[90]I also note the terms of Article 18.3 of the UN Convention. The relevance of that is that the UN Convention itself recognises that there will be cases where children of working parents will gain access to childcare whereas other parents will not. That indicates that there is no absolute requirement under the UN Convention that if childcare is provided to some children, it must be provided to all. A situation where some children but not others qualified for free childcare would not automatically, therefore, involve a failure to act in the best interests of a child or children. Rather, each individual measure needs to be considered to determine whether there has been some failure to respect any substantive or procedural rights arising out of Article 3.1 of the UN Convention and, if so, whether that assists in identifying whether any differential treatment affecting different groups of children is or is not objectively justifiable.

[91]For those reasons, in my judgment, the provision of 15 additional hours of free childcare to the children aged three and four of working parents as defined but not providing those additional hours to children of lone parents unable to work because of caring responsibilities or because they are the victims of domestic violence did not on the material available at the hearing in July 2018 give rise to considerations arising out of Article 3 of the UN Convention which assist in determining whether the defendant can objectively justify the differential treatment in the present case for the purposes of

Article 14 ECHR

Financial Considerations

[92]The defendant has referred to the fact that extending the scheme to children of non-working parents would require a substantial expenditure of public money. The claimants accept that this is a relevant factor but submit that this is not sufficient to justify the differential treatment. I was referred to authorities accepting that savings in public expenditure could constitute a legitimate aim for the purposes of

Article 14 ECHR

: see, e.g. R (JS) v Secretary of State for Work and Pensions [2015] 1 W.L.R. 1449 at paragraph 64. Here, the aim is to incentivise and facilitate parents to work, or increase their working hours, not to save public expenditure. The fact that the policy preferred by the claimants, namely that the additional 15 hours of free childcare be extended to children of lone parents unable to work, would involve additional public expenditure may, by analogy, be a factor to take into account in deciding whether the differential treatment is objectively justified. On the facts of the present case, however, the reality is that the question of whether the differential treatment is objectively justified is likely to depend upon other factors. Where, however, the extension of the current policy would not provide any significant benefit to other groups of children, the fact that the extension of the policy to those groups would involve public expenditure may be a relevant matter to take into account. For completeness, I note the view of the claimants’ economic expert that the money involved should be seen as a small amount because, for example, on one estimate and measure it would amount to 0.02% of the expenditure of the relevant government department. Mr Harvey also expresses the view that the likely amount of money involved in extending the policy is likely to be “relatively small” adopting other measures of comparison. I doubt that that is a helpful way of analysing the issue in terms of consideration of the issues that arise under

Article 14 ECHR

. It is legitimate to scrutinise carefully any expenditure of public money. A better approach is to consider the best estimates of likely expenditure and to take that into account where relevant as explained above. Furthermore, it will generally be appropriate to take into account the view of the decision-maker as to whether the amount of public expenditure involved is significant and justified.

The Cap on Working Parents’ Earnings

[93]The third condition that working parents have to satisfy is that the parent does not have earnings of £100,000: see regulation 4(5) of the Regulations. If two parents are working, the combined income that they could earn before their child ceased to be eligible for the additional 15 hours of free childcare would be £200,000. The claimants, in paragraph 90 of their skeleton argument, refer to the fact that part of the aim or concerns underlying encouraging parents to work was to move families out of poverty. The claimants contend that it is difficult to reconcile that aim with the fact that children from families on potentially high incomes can access additional hours of free childcare but other, poorer, children cannot.

[94]The imposition of an incomes cap on working parents, limiting the availability of childcare for children of working parents, is essentially a matter of social and economic judgment as to whether any, and if so what, limits should be placed on the eligibility of children for free childcare by reference to the income of their parents. That, in truth, concerns a different issue from that which arises in the present case. Here, as the aim is to facilitate and incentivise parents to work or to increase their hours of work (an aim accepted by the claimants as legitimate), the real question is whether the differential treatment involved in not extending the additional 15 hours of free childcare to children of lone parents who are unable to work is objectively justified. That is what needs to be assessed. Criticism about the level of income that working parents may earn while their children still qualify for the additional hours of free childcare does not, of itself, assist in deciding whether not extending the additional childcare to children of lone parents who are not able to work was objectively justified.

Situations where a parent is not able to work but children are eligible

[95]Mr Wise drew attention to the fact that the Regulations provided for situations where a parent was not able to work because of caring responsibilities (or other reasons) but the child was still eligible to receive the additional 15 hours of childcare. That is the case. But, as indicated above, the reason is that one parent (or partner) in the household is working, as defined, and the government decided to extend the additional childcare to such children as it would facilitate and incentivise that adult member of the household to work. The position is different in relation to lone parents; if they are unable to work, providing additional hours of free childcare would not facilitate or incentivise another family member to work.

Other Matters

[96]The claimants, and the defendant, have made a number of other specific points, and referred to a number of documents, which they say assist in the resolution of this issue. I have had regard to all the material, and arguments, put before me. I have set out above what I regard as the principal specific points that were made and evidence relied upon. It would not be proportionate, or necessary, to deal with each and every subsidiary point made. The claimants and defendant can be assured that each and every point made has been considered. In particular, I have had regard to all the witness statements made on behalf of the claimants, including, in addition to those already referred to, those of Ms Ghose, Ms Ben-Galim, Ms Holzhausen, Ms Dasgupta, Mr Leitch, Ms Haynes, and Ms Mulholland. Their views and reasoning, while of interest, did not ultimately assist in the resolution of the legal issues that arise in this case.

Overall Conclusion on Objective Justification

[97]In the light of the written and oral arguments, and having regard to the specific matters discussed above, it is possible to set out relatively shortly my conclusion on the question of whether the defendant had demonstrated that the differential treatment in the present case was objectively justified on the evidence available at the time of the hearing in July 2018. The differential treatment involves the provision of an additional 15 hours of free childcare a week to three- and four- year old children of parents who are working as defined by the Regulations. Children of that age of lone parents who are unable to work because of caring responsibility or because they are the victims of domestic abuse are not eligible to receive the additional 15 hours of free childcare.

[98]Applying the approach favoured by the defendant, the defendant has demonstrated that the differential treatment resulting from the 2016 Act and the Regulations is objectively justified. The measures seek to pursue a legitimate aim, namely to facilitate or to provide an incentive to parents to work or increase their working hours. The measures are rationally connected with that aim. The measures are not manifestly without reasonable foundation. They reflect a considered view by the legislature, and the government, based on the available evidence, as to how best to allocate resources to achieve a particular goal, namely the encouragement of parents to work or increase their working hours.

[99]Applying the approach favoured by the claimants, the measures do seek to achieve a legitimate aim, namely to facilitate and provide an incentive to parents to work. The measures adopted are rationally connected with that aim. In truth, the different method favoured by the claimants, that is, the extension of the provision of the additional 15 hours of free childcare to children of lone parents who cannot work because of caring responsibilities or because they are the victims of domestic abuse, would not be a less intrusive means of achieving the same aim; it would involve seeking to achieve a different aim.

[100]In terms of whether the measures strike a fair balance, it is appropriate to bear in mind that the context is the allocation of resources to achieve a particular social goal, enabling parents to work. That involves questions of social policy. The measures reflect the conscious and deliberate assessment by the government, and approved by the legislature, that the appropriate balance to strike is to provide an additional 15 hours of free childcare a week to children aged three and four of working parents as defined but not to provide those additional hours to lone parents who are unable to work. The children of lone parents do not lose any existing entitlement; they retain their entitlement to 15 hours of free childcare but eligibility for the additional 15 hours will not be extended to them. The evidence available at the time of the hearing in July 2018 did not establish that the provision of the additional 15 hours of free childcare would give rise to any significant educational or developmental benefit for the children who receive it. There are other social policy measures in place to assist non-working lone parents, and children with particular needs arising out of their particular situation. In all the circumstances, the 2016 Act and the Regulations do strike a fair balance in the way that they deal with the allocation of resources in the form of additional hours of free childcare for three and four year olds and by providing that those additional hours will be available to children of working parents in order to facilitate those parents to work. THE NEW MATERIAL The Procedure

[101]The draft judgment in this case was circulated to the parties on Monday 10 September 2018 with a view to judgment being handed down on 17 September 2018. On the following day, 11 September 2018, the defendant informed the claimants for the first time that a new Study of Early Education and Development (“the 2018 Study”) considering the impact of early education on children aged two to four had been published. The defendant had a draft of this study in October 2017. The fact that the 2018 Study was being prepared was not referred to in the two witness statements filed on behalf of the defendant or during the hearing in July 2018. The 2018 Study was finalised in August 2018 but the defendant failed to inform the claimants of the existence of the study. The 2018 Study was published on 8 September 2018. The defendant did not inform the claimants of that fact until after the draft judgment was circulated. Ms Dyson has made a further witness statement. She recognises that the defendant made a mistake in failing to refer to the fact that the 2018 Study was in the process of being finalised and apologises for that mistake. She does not in that witness statement give any clear, simple or straightforward explanation for the failure to disclose the existence of the 2018 Study prior to the e-mail of 11 September 2018.

[102]The court was informed by the claimants’ representative on 12 September 2018 of the existence of the 2018 Study and a hearing was ordered on 14 September 2018 to hear submissions on how to proceed. A reasoned judgment was given on that date. I granted permission for the claimants to adduce the 2018 Study in evidence and agreed to their request that there be a hearing to consider written and oral submissions on the 2018 Study. The handing down of the draft judgment was deferred. The further hearing took place on the 24 September 2018.

[103]The original draft judgment remains unchanged save for minor alterations to make it clear that the conclusions were based on the evidence available at the July 2018 hearing. The Regulations setting out the criteria for eligibility for the additional 15 hours a week of free childcare were made in December 2016. The new material only came into existence after that date, when it was finalised in August 2018 (a draft existed, it seems, as early as October 2017). For the reasons given above, the 2016 Act and the making of the Regulations did not involve any unlawful discrimination contrary to Article 14, read with Article 8, ECHR. The question now is whether the continuing in force of the Regulations would involve unlawful discrimination. The Regulations continue to give rise to differential treatment on the grounds of other status – those conclusions are not affected by the new material. The question is whether the defendant can demonstrate that the differential treatment arising from the continuing in force of the Regulations is objectively justified.

The 2018 Study

[104]The first issue is consideration of the new material. The 2018 Study is part of a larger study, still in progress, designed to assist the Department for Education by providing evidence on the effectiveness of early years education and care and identifying any short- and longer-term benefits. The 2018 Study considers children aged 2 to 4, that is children aged between 2 and 3 (who would not be within the age group eligible for the additional 15 hours of childcare provided for the Regulations) and children aged between 3 and 4 (children of that age would be among the group potentially eligible in future).

[105]By way of preliminary, it is important to bear in mind that a judge is not an expert in statistics or in educational matters. Any court would, therefore, need to approach material such as the 2018 Study with care, particularly in interpreting and assessing the significance of the material contained within it. Furthermore, the proper bodies for determining social and economic policy are the legislature and the executive. The court does, however, have a duty to ensure that the law is complied with and, therefore, must consider whether continuing the Regulations in force gives rise to unlawful discrimination contrary to Article 14, read with

Article 8 ECHR

. Parliament, through the Human Rights Act 1998, requires the court to carry out that role.

[106]It is also important to read the entire text of the 2018 Study, and where relevant, the supporting technical material and to set it in context. The authors of the 2018 Study are careful in their use of language. On occasions, the submissions of the claimants appeared to me to take sentences, or parts of sentences, out of context and without due regard to the precise meaning that the authors of the report were intending to convey.

[107]The 2018 Study refers to formal and informal early childhood education and care (referred to in the study as “ECEC”). It divides ECEC into formal group and formal individual (i.e. childminders in a domestic setting) and informal individual (childcare in a domestic setting provided by, for example, relatives, friends, neighbours, nannies). The former two categories are eligible for government funding and would be the sort of provision capable of being funded under the Regulations. It is benefits attributable to those two types of formal ECEC that are primarily relevant in considering potential benefits that could arise from the type of childcare that could be provided under the Regulations.

[108]In assessing the potential benefits, the 2018 Study identifies 12 outcomes for children. Two relate to cognitive development, namely verbal skills and non-verbal skills (such as the capacity to identify similarities in pictures). One outcome relates to self-regulation. Nine relate to socio-emotional development (either problems or benefits). In assessing the significance of the findings in the 2018 Study, it is useful to begin by considering what outcomes are recognised as statistically significant (if an outcome was not recognised as statistically significant then, prima facie, it would not be sufficient of itself to undermine the defendant’s case on objective justification). Further, it is important to see if there is any evidence associating a statistically significant positive outcome with receiving more than 15 and up to 30 hours a week of childcare (all children aged three to five year are eligible for free childcare; it is only certain groups who are eligible for the additional 15 hours a week of childcare and it is the provision of the additional 15 hours a week to certain groups but not others which is said to result in unlawful discrimination). Furthermore, in considering the significance of benefits overall it may well be appropriate to consider the relative importance of the provision of childcare with other factors impacting on a child’s development. Finally, it is important to consider any other factors relevant to assessing the significance of any outcome. All such factors may be relevant in considering whether the differential treatment arising out of the continuing in force of the Regulations is objectively justified.

[109]I consider first the areas where there are statistically significant effects on outcomes. The 2018 Study categories these effects as small, medium and large. On cognitive development, there is no statistically significant effect on verbal skills from formal group or individual ECEC. There is also no statistically significant effect on self-regulation or on four of the socio-emotional outcomes assessed. Of the other six outcomes, formal group ECEC shows a small but statistically significant effect on non-verbal cognitive development (for example, matching pictures and shapes), and (in socio-emotional development) prosocial behaviour. Formal group ECEC shows a statistically significant medium effect on having fewer peer problems, and behavioural self-regulation. Formal individual ECEC (i.e. childminders, not groups) shows a statistically significant medium effect on having fewer emotional symptoms. The 12th of the outcomes, having conduct problems, shows a small but statistically significant adverse effect (but that may only apply to groups receiving very large amounts (more than 35 hours) of ECEC. In other words, five of the outcomes show a statistically significant beneficial outcome, two being small benefits and three being medium.

[110]I deal next with the number of hours of ECEC that appear to be associated with generating the beneficial effects in those five outcomes. The claimants refer to increased hours in ECEC and improved outcomes. In fact, read as a whole, it is clear that detailed analyses of sub-groups were carried out to establish whether there was a statistically significant association between the number of hours of childcare attended and a beneficial outcome, as compared with children receiving five or fewer hours of childcare a week.

[111]In relation to non-verbal cognitive development the statistically significant association was with the group receiving 20 to 25 hours of formal group ECEC. In relation to having fewer peer problems, the statistically significant association was with groups receiving 20 to 25 and 25 to 30 hours (and those receiving more than 35 hours) of formal group ECEC. In relation to having fewer emotional symptoms, the statistically significant association was with children receiving formal individual ECEC for up to 5 hours, or more than 20 hours, a week. Those associations for those three outcomes relate to a number of hours which fall within the additional 15 hours childcare which will now be available under the Regulations.

[112]In relation to prosocial outcomes, there was no statistically significant association between the number of hours of childcare and that beneficial outcome. In relation to behaviour self-regulation, the statistically significant association was with the group of children receiving over 35 hours formal group ECEC. The material therefore for those two categories appears to indicate that any beneficial outcomes are not associated with the number of hours of childcare (the additional 15 hours, or hours 15 to 30 a week) which may be provided under the Regulations. The one negative outcome, increased conduct problems, again appears to be for the group who receives more than 35 hours (so would not appear to result from the provision of hours of childcare to which the Regulations relate).

[113]Mr Dunlop for the defendant points out that these number of hours are hours averaged over two years and do not necessarily represent children who in fact received the number of hours shown as statistically significant. That is correct. But in reality in order to have an average number of hours falling between 20 and 30 (which fall within the additional hours of childcare provided by the Regulations) the likelihood is that children in those formal group or individual ECEC were attending for more than 15 hours a week. The fact that the hours were averaged does mean, however, as the 2018 Study recognises, that it is not possible to identify the optimum number of hours a week. The defendant also points out, fairly, that the 2018 Study was comparing those who had none or less than five hours childcare a week with the other groups. The 2018 Study was not comparing the effect on those receiving up to 15 hours a week with other groups. Furthermore, it appears that the study was not seeking to compare the effect of duration (the period of attendance at ECEC) with intensity (the number of hours attended each week).

[114]Standing back from the details so far, there appears to be a statistically significant small benefit in non-verbal cognitive skills associated with 20 to 25 hours formal group ECEC. There appears to be a statistically significant medium benefit in reduced peer problems associated with 20 to 30 hours formal group ECEC. There appears to be a statistically significant medium benefit in emotional symptoms which is associated with receiving formal individual ECEC for up to 5 hours, or more than 20 hours. The other statistically significant benefits associated with formal group ECEC (prosocial behaviour and behaviour regulation) are not indicated to be associated with attendance at ECEC for a number of hours falling within the additional hours of childcare provided for by the Regulations.

[115]Finally, I consider the relative significance of the attendance at ECEC on the three beneficial outcomes associated with hours of childcare above 15 but less than 30 a week. I note that the 2018 Study refers to small, medium and large benefits but gives no means of assisting with identifying how significant those terms are in assessing the overall significance in the development of a child. The 2018 Study does provide an indication of the relative contribution made by other factors. In relation to cognitive non-verbal skills, other factors, notably mother’s education level, the home learning environment, limit setting and demographic factors such as the gender and even the birth weight of the child appear to have a greater correlation with the beneficial outcome. The text at page 76 of the 2018 Study indicates, however, that there was a statistically significant small effect for formal group ECEC for children at age four which was not seen at age three.

[116]In relation to the reduction in peer problems, time spent in formal ECEC aged two to four was associated with lower levels of peer problems, but the diagram at page 82 of the 2018 Study appears to show that other factors have a greater significance and the accompanying text indicates that the largest predictor at age three was the effect of formal ECEC but that had become less influential at age four in comparison with aspects of parenting and the home environment. In relation to emotional symptoms, the text in the 2018 Study notes that the relative influence of formal individual ECEC appears less at age four than at age three. Time in formal individual ECEC was a factor associated with fewer emotional symptoms but two other factors (including warmth of the parent/child relationship) appeared to have a greater influence. See, generally, the table at page 20 of, and the accompanying text at page 20, and the summary of conclusions at page 22 to 21, and chapter 5 of the 2018 Study.

[117]Again, standing back from the details, therefore, and bearing in mind the very real limitations on a court seeking to interpret, analyse and assess the significance of this material, it appears that in two out of twelve outcomes (non-verbal cognitive development) and reduced peer problems, there is a statistically significant benefit (small and medium respectively) associated with receipt of formal group ECEC of over 15 but less than 30 hours and in one outcome, fewer emotional symptoms, a statistically medium benefit associated with formal individual ECEC for those who receive up to five or over 20 hours a week. Other factors also appear to be associated with, and it seems, have a greater degree significance for, those beneficial outcomes. The Submissions on

THE NEW MATERIAL

[118]In summary, the claimants rely on the material in this report as evidencing the existence of some benefits for children aged four, associated with the number of hours of childcare that three- to four- year old children of working parents would receive under the Regulations. They submit that the fact that children of lone parents who cannot work because of caring responsibilities or domestic abuse are not receiving those benefits means that the defendant cannot objectively justify the continuation in force of a regime which disadvantages such children.

[119]In summary, the defendant draws attention to the fact that these figures include children aged two to three years old (who would not be eligible to receive childcare under the Regulations) and children aged three to four year (who would). The 2018 study, Mr Dunlop submits, needs to be approached with care as it is dealing with the cumulative effect of the provision of different forms of childcare of 2 years for children aged two to four. He draws attention to differences in some of the measured outcomes between the 2017 Study (which looked at children aged three, i.e. those who received childcare between ages two and three) and the 2018 Study. The outcomes in each case are expressed in numerical terms. Effects between 0.02 and 0.05 are small; between 0.05 and 0.1 are medium, and above 0.1 are large. The outcome seen in the 2018 Study shows a statistically significant outcome of 0.041 for prosocial behaviour children aged two to four which is less than half the figure of 0.109 shown for two- to three- year olds in the 2017 study. Similarly, the benefit of reduced peer problems is medium, 0.087 in the 2018 Study, a decline from the large effect of 0.199 in the 2017 study. There is a medium benefit in respect of fewer emotional symptoms in both studies but still a decline from -0.90 to -0.073 between the 2017 and 2018 Studies. One possibility, the defendant submits, may be that those benefits are seen, or primarily seen, in those children aged two to three years old, not those aged three to four years old, so that any benefit in those areas cease to apply, or apply to the same extent, after the age of three. Mr Dunlop also points out that none of the effects is described as large. In short, he submits that the assessment is a work in progress. For some of the outcomes, the explanation may be that the effect of formal childcare declines by age four. Even where the material does not at present, indicate that that is the case, as with non-verbal cognitive skills, the effect of formal childcare is small. In all the circumstances, Mr Dunlop submits that the evidence of differential impacts is not such at present as to require the executive or legislature immediately to review the Regulations and the matter is the subject of further, continuing study and assessment.

Article 3 of the UN Convention

[120]Before considering the relevance of the material to the question of objective justification under

Article 14 ECHR

, it is relevant to note the claimants’ arguments under Article 3 of the UN Convention. Put simply, the claimants say that in assessing whether there has been unlawful discrimination, any breach of Article 3 of the UN Convention is a matter that “weighs heavily in the justification assessment” (per Sir Patrick Elias in R (DA) v Secretary of State for Work and Pensions

[2018] EWCA Civ. 564

at para. 33) and that “countervailing considerations of considerable force” are required to outweigh the best interests of a child which are a primary consideration (per Lord Kerr in ZH (Tanzania) v Secretary of State for the Home Department) [2011] 2 A.C. 166). The claimants submit that the new material establishes that there is now a substantive breach of Article 3.1 of the UN Convention (they do not allege that the new material gives rise to a breach of the procedural obligation that they say is recognised by paragraph 6(c) of the General Comment discussed above). In simple terms, they say that the Regulations are a measure affecting children. The measure must have regard to the best interests of the children, i.e. those who are subject to it and those who cannot claim the benefits afforded by the Regulations. They submit it must be in the best interests of a child to receive any benefit provided by the Regulations and, therefore, they submit that what they call the exclusion of children of non-working parents from the benefits of the Regulations is a breach of Article 3 of the UN Convention. That, they submit, is a matter that is highly relevant to the issue of objective justification under

Article 14 ECHR

and the defendant is unable to demonstrate objective justification for not extending the benefits to such children.

[121]First, I bear in mind that Article 3 of the UN Convention is not directly applicable in domestic law. Secondly, Article 3 of the UN Convention refers to the fact that in all actions concerning children (whether undertaken by courts, administrative authorities or legislative bodies), the best interests of the child shall be a primary consideration. Here, the measure in question is a measure dealing with the provision of 15 hours a week of additional childcare for children of parents who work, the aim being to facilitate or incentivise those parents to work. That is thought to be likely to assist such families to move out of poverty which, in turn, is thought to be in the best interests of those children. I do not consider that Article 3 of the UN Convention is to be interpreted as meaning that every measure which confers an incentive on certain groups to behave in a particular way (here, to work or work more hours) has to be assessed by reference to whether other children (not within the group of persons whose behaviour the legislature or executive is seeking to change) would also receive the same benefits. I do not consider that a measure which provides benefits to the children of working parents, to encourage parents to work, involves a breach of Article 3 of the UN Convention because the benefits are not provided to other children whose parents cannot or do not work.

[122]Indeed, I see force in the defendant’s argument that the logic of the claimants’ submission in this case would appear to be that if a measure makes any benefit available to one or more children, the benefit must also be made available to all other children as that would be in the best interests of those other children. The claimants suggest that that was not the case, and the benefit need only to be extended to the children of lone parents who were unable to work. From the perspective of Article 3.1 of the UN Convention, it is difficult to understand the claimants’ focus on the parents rather than the best interest of the child. If the claimants’ approach to Article 3.1 of the UN Convention is correct, and if a benefit is provided to one child, then all other children should have the benefit as it would be in their best interests to receive it (irrespective of the position of their parents). The ultimate logic of that approach would be that any legislation that had a beneficial effect on one child would have to extend the same benefits to all other children to avoid a breach of Article 3.1. I do not consider that that is the law.

[123]Furthermore, in the context of access to childcare, Article 18.3 of the UN Convention appears to contemplate that there will be situations where some children will have access to childcare and others will not as it contemplates states taking all appropriate measures to ensure that the children of working parents have the right to benefit from childcare facilities for which they are eligible. That presupposes that criteria may differentiate between those who will and those who will not be eligible to receive childcare. I do not accept, therefore, that legislation which provides that children of working parents have access to 15 hours a week of additional childcare involves a breach of Articled 3.1 of the UN Convention as it does not provide for additional hours of childcare for other children. I deal below with the question of whether any breach would otherwise be justified for the purposes of

Article 14 ECHR

if that conclusion is wrong.

Objective Justification

[124]In the circumstances, I can state relatively shortly my conclusions on the new material and whether the defendant can demonstrate that the continuation in force of the Regulations, and the continuation of the effects of the differential treatment that the Regulations create, remains objectively justified at present.

[125]As explained above, the differential treatment involves the provision of an additional 15 hours a week of childcare to certain children, i.e. those of working parents as defined. The aim of the Regulations is to facilitate or provide an incentive to parents to work. It seeks to do so by providing for additional hours of childcare to working parents.

[126]The defendant has demonstrated that the continuation in force of the Regulations, and the effects of the differential treatment arising from them, are objectively justified at present. The provision of an additional 15 hours a week of childcare for children of parents in families where one adult member is working, notwithstanding the emerging evidence that there may be benefits of the sort described above (notably, a small benefit in respect of non-verbal cognitive development and medium benefits in terms of lower peer problems and emotional symptoms). and keeping the emerging picture under review, is not manifestly without foundation.

[127]Applying the approach favoured by the claimants, the measures seek to achieve a legitimate aim and are rationally connected with that aim. The suggested alternative measures are not in truth less intrusive means of achieving that aim but involve seeking to achieve a different aim as explained in paragraph 99 above. The defendant has demonstrated that the continuation in force of the Regulations, and the continuing effects of the differential treatment to which they give rise, does continue to strike a fair balance at present. Much of the reasoning in paragraph 100 above continues to apply. The context is the allocation of resources to achieve a particular social goal, that is enabling parents to work. That involves questions of social policy. The measures reflect the conscious and deliberate assessment by the government, and approved by the legislature, that the appropriate balance to strike is to provide an additional 15 hours a week of free childcare to children aged three and four of working parents as defined so that those parents can work. The legislature and executive decided not to provide those additional hours to lone parents who are unable to work as to do so would not have the effect of incentivising or facilitating those parents to work, albeit that the legislature and executive did not have the recent evidence on potential benefits to children aged two to four available to them at the time of reaching that decision. The government continues to assess the significance of that evidence, and further studies are being carried out. The children of lone parents do not lose any existing entitlement; they retain their entitlement to 15 hours a week of free childcare but eligibility for the additional 15 hours a week will not be extended to them. The emerging picture is that there may be some beneficial outcomes from an additional 15 hours a week of childcare in some areas (notably, a small benefit in non-verbal cognitive skills and medium benefits in two aspects of social development). The scale of the benefit and the relative significance of the provision of 15 additional hours of childcare, as compared with other factors on children’s development, appear limited, however, and are in any event by no means clear. There are other social policy measures in place to assist non-working lone parents, and children with particular needs arising out of their particular situation. In all the circumstances, the continuation in force of the Regulations at present continues to strike a fair balance in the way that they deal with the allocation of resources in the form of the provision of additional hours of free childcare to three- and four- year old children in order to facilitate and incentivise the parents to work or work more hours.

[128]For completeness, even if there had been a breach of Article 3 of the UN Convention (which in my judgment there is not in this case) the factors referred to in the previous paragraph do provide objective justification for the continuation in force at present of the effects of the differential treatment arising out of the Regulations and outweigh the best interests of the child as a primary consideration.

[129]I also note that the defendant puts forward an alternative justification for the continuation in force of the Regulations and of the effects of the differential treatment arising out of the Regulations. The defendant contends that, even if the new material led to the conclusion that the Regulations had ceased to be objectively justifiable, he is entitled to a reasonable time to consider and respond to the new material. I have found that the defendant has objectively justified the continuing effects of the differential treatment at present. The fact that the picture in relation to benefits associated with the provision of childcare is still emerging and the executive is keeping matters under review are among a number of factors leading to that conclusion. It is not necessary, therefore, to consider the alternative question of whether, if the defendant had failed to establish objective justification, nonetheless he is entitled to a reasonable time to assess and determine what changes to make to the Regulations.

CONCLUSION

[130]The 2016 Act and the Regulations do give rise to differential treatment on the grounds of other status. The defendant has demonstrated that the differential treatment was objectively justified at the time that the Regulations were made. The defendant has also demonstrated that the continuation of that differential treatment, by continuing the Regulations in force, is at present also objectively justified. The provision of 15 hours a week of additional free childcare to children aged three and four year of working parents, as defined by the legislation, does not, at present therefore involve discrimination contrary to Article 14 read with

Article 8 ECHR

. This claim for judicial review is therefore dismissed. _______________________________________________ ORDER _______________________________________________ Before the Honourable Mr Justice Lewis sitting at the Royal Courts of Justice on 4 and 5 July and 14 and 24 September 2018 Upon hearing Ian Wise Q.C. and Michael Armitage for the Claimants and Rory Dunlop and Jack Anderson for the Defendant And upon considering the written submissions filed by the parties in relation to permission to appeal and costs IT IS ORDERED THAT:

[1]The claim is dismissed

[2]Permission to appeal is refused

[3]There shall be a detailed assessment of the Claimants’ publicly funded costs.

[4]There shall be no order as to the costs of the proceedings.

Reasons

[1]In brief, the reasons for the order in relation to costs is as follows.The Defendants were the successful party so far as the claim for judicial review is concerned and, in normal circumstances, the usual order would be that the Claimant pay the Defendant’s costs (other than the costs of the oral permission hearing).

[2]Here, there was an additional complication in that the Defendant failed to comply with its duty of candour(1) to inform the Claimants that a Study on the effects of the provision of childcare for children aged three to four was in the process of being finalised at the time of the hearing of this claim

(2) failed to inform the Claimants in August 2018 that that Study had been finalised. As a result the Claimants had to apply for an order adducing the new evidence and have the opportunity to make written submissions (the application being resisted by the Defendants). The Defendants would have been ordered to pay the costs of that application and the hearing on 14 September 2018. A further hearing took place on 24 September 2018 to hear submissions on the new evidence. The Defendant were the successful party in relation to that hearing as the Claimants’ submissions on the new material were not accepted by the Court. There would have had to be an additional day’s hearing in any event to deal with that material to take account of the new material as it was not finalised until August 2018, i.e. after the July 2018 hearing. Whilst it is possible that the hearing in July 2018 might have been vacated to allow for finalisation of the 2018 Study, the likelihood is that even then the overall hearing would have been unlikely to be shortened as the Court needed to consider the position at the time that the relevant Regulations were made on 2016 and the position at the time of the finalised 2018 Study.

[3]The likely starting point for any order for costs, therefore, would have been that the Claimants’ pay the Defendant’s costs of the claim save that the Defendants should pay the Claimant’s costs of and occasioned by the application to adduce new evidence and the hearing of 14 September 2018. Then the Court would have needed to consider the effect of the Defendant’s conduct (the failure to comply with the duty of candour). At most, that would have been likely to result in a reduction of costs payable to the Defendant.

[4]In the event, the Defendant has indicated that, in view of their conduct, they will not seek any part of their costs and seek an order that there be no costs. That is at least equal to (and probably significantly more favourable than) any order that the Court would make so far as the Claimants’ are concerned. In those circumstances, the appropriate course of action, is to accede to the Defendant’s submissions and make no order for costs.

[5]So far as the application for permission to appeal is concerned, the judgment applies existing principles of law to the evidence. On the one disputed issue (the approach to proportionality), the law is correctly set out in paragraphs 35 to 39 of the judgment. The different approaches of the parties to the law is set out and, applying either approach, the result would be the same. There is no realistic prospect that the dispute between the parties on the appropriate approach to the law would make any difference to the outcome in this case. Nor is there any realistic prospect of the court reaching a different conclusion on the UN Convention. There is no other compelling reason for a hearing. Permission to appeal is therefore refused.

T & Ors, R (on the application of) v The Secretary of State for Education [2018] EWHC 2582 (Admin)

INTRODUCTION

THE FACTS

THE LEGISLATIVE FRAMEWORK

(a) who is under compulsory school age, and

The Background to the 2016 Act

The 2016 Act

The Regulations

Equality Impact Assessment

Other Legislation

THE ISSUES AND SUBMISSIONS

ANALYSIS OF THE ISSUES

Differential Treatment Falling within the Ambit of Article 14 ECHR read with Article 8 ECHR

Other Status

THE ISSUE OF OBJECTIVE JUSTIFICATION

The Aim

Objective Justification – Initial Observations

Specific Issues or Criticisms

The statistical evidence

The Benefits of Additional Childcare

Extent of consideration by the legislature and the government

Article 3 of the United Nations Convention on the Rights of the Child

Financial Considerations

The Cap on Working Parents’ Earnings

Situations where a parent is not able to work but children are eligible

Other Matters

Overall Conclusion on Objective Justification

The 2018 Study

THE NEW MATERIAL

Article 3 of the UN Convention

Objective Justification

CONCLUSION

Reasons

Cited in 3 later judgments