Tag Archives: judicial review

A child in need is a child indeed (or not)

Posted on January 23, 2025 by suesspiciousminds

This one took me quite a few reads to make sense of (and it is quite possible that I’m still not there)

I THINK that it is largely fact-specific, but the Court of Appeal do look at whether the wording of ‘unlikely’ in s17(10) Children Act 1989

“For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled

should be looked at in the same sort of context as ‘likelihood’ is treated by the Courts in s31 threshold (i.e a risk that cannot sensibly be ignored)

https://www.bailii.org/ew/cases/EWCA/Civ/2025/4.html

TW, R (On the Application Of) v Essex County Council [2025] EWCA Civ 4 (20 January 2025)

Basically, TW had been a 16 year old child living with his stepfather and that placement broke down. He approached the Local Authority for assistance and they helped him liaise with Housing and get accommodation. He later judicially reviewed the Local Authority for not treating him as a s17 Children Act ‘child in need’ at the time that his placement with stepfather broke down, which would have meant that the accommodation provided was under s20 of the Children Act 1989 in turn making him ‘looked after’ and in turn providing him with support under the Leaving Care provisions.

The Local Authority said that they had carried out an assessment at the time as to whether TW was a ‘child in need’ and made a lawful determination that he was not and that they had followed the statutory guidance.

I think that this paragraph is significant :-

On 10 June 2021, TW attended a meeting with SM and a member of the borough council housing department. They discussed his “potential housing options”, including support with accommodation through s.20 and under the EYPP. According to the note of the meeting, SM advised him in detail about the options, although in his statement in these proceedings TW said that he did not recall being given the detailed information recorded in the note. The note concluded by recording that TW said that he “does not want be in care as there were too many rules”. He said he wanted to be supported to access housing through EYPP.

In general, where a person aged between 16 and 18 seeks accommodation, the LA would consider whether they are a child in need and if satisfied that they are, would provide that accommodation under s20 rather than signposting them to Housing BUT where the young person is given information and decides that they do not WANT to be looked after then they would not be s20 accommodated against their wishes.

The national guidance says this :-

53….”Where there is no immediate threat of homelessness intervention may be more appropriately led by early help services, whereas if there is an imminent threat of homelessness or if the young person is actually homeless, a child in need assessment must be carried out and the child accommodated under section 20.”

It was Mr Moffett’s submission that the statutory guidance was encouraging local authorities to do what the local authority did in this case. He submitted that the logic of the appellant’s argument was that the statutory guidance was unlawful, but the issue of legality was not before the Court. Mr Purchase conceded that early intervention to prevent a child becoming a child in need was entirely legitimate, but submitted that the guidance was misleading if it meant that early intervention did not amount to the provision of services under s.17(10) in circumstances where it was established that, without those services, there was a real possibility that the child would suffer significant impairment to his health or development. If on the facts a child’s circumstances fall under s.17(10), any services provided to him by the local authority were provided to him as a child in need.

Mr Moffett observed that, in one sense, every child is a child in need of support from someone. The definition of child in need under s.17(10), however, is confined to those children who are unlikely to achieve or maintain a reasonable standard of health or development without the provision of services under Part III of the Act: R (P) v Secretary of State for the Home Dept, R (Q) v Secretary of State for the Home Dept [2001] EWCA Civ 1151 at paragraph 95. In carrying out the assessment, the local authority is obliged to take into account support otherwise available: R (VC) v Newcastle City Council, supra, per Munby LJ at paragraph 30. Mr Moffett submitted that, in carrying out that exercise, there was no conceptual reason to exclude support which might be provided by other agencies or by the local authority under other provisions.

In effect, as the homelessness was foreseeable but not imminent (he was ‘sofa surfing’ with friends – staying for short periods of time at the homes of others) the LA were providing services by way of Early Help to prevent a situation where TW would actually become homeless, and he was not on their assessment a child in need.

The Court of Appeal looked at the authorities on determining whether a child is a ‘child in need’

The clearest statement of the law relating to the assessment of whether a child is a child in need is by Baroness Hale in R (A) v Croydon LBC, supra. The issue in that case was whether each of the claimants, who had sought asylum on arrival in this country, was under the age of 18 and therefore capable of being a child in need under s.17(10) and therefore entitled to be accommodated under s.20(1). At paragraphs 26 and 27, Baroness Hale drew a distinction between the assessment of, on the one hand, whether a child was a child in need and, on the other hand, whether the person was a child at all.

“26. The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

  1. But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers.”
    The principle that the evaluation of whether a child is a child in need is a matter for professional judgment by the local authority is reflected in the National Guidance. Paragraph 3.16 provides:

“Determining who is in need and the extent of any needs requires professional judgment by social workers, informed by consultation with other professionals familiar with the circumstances of the individual young person and their family.”

The Court of Appeal decided that TW’s situation ‘might’ have led a Local Authority to conclude that he was a child in need but looking at their decision-making and the initial judgment about that, they considered that the decision of the LA and the Judge that TW was not a child in need was reasonable and not irrational.

I accept that the language of s.17(10) is “forward-looking”. The assessment of what is likely or unlikely necessarily involves looking to the future. But SM’s assessment was manifestly focused in that direction. The key findings cited above are for the most part all forward-looking. Her finding about TW’s current sleeping arrangement was that “whilst this is ok in the short term, it is not an ideal long term arrangement”. Her answers to the question “What will make things safer?” were all directed to future provision, as were her recommendations. Her evaluation, accepted by the decision-maker, was that TW’s future needs could be met through accessing housing via EYPP with additional support from Family Solutions without the provision of services by the local authority under Part III of the Act.

The provision of services to prevent a child becoming a child in need is expressly prescribed in the National Guidance. It was plainly open to the local authority, following the Guidance and in particular paragraph 3.2, to conclude that TW fell into the category of a young person needing early help. Although he had a range of needs and specific vulnerabilities, there was no “imminent threat of homelessness”. He needed support to “reduce the chance of a problem getting worse” and the local authority was able to coordinate early help services to meet those concerns. It was therefore entirely rational for the local authority to conclude that there was no requirement for services to be provided under Part III of the Act.

So far as Mr Purchase’s other submissions are concerned, I am doubtful whether there is anything to be gained from the proposition that the word “unlikely” in s.17(10) should be interpreted by reference to the meaning of “likelihood” applied by family courts when considering whether the threshold for intervention under s.31(2) of the Act is crossed. It would not be helpful to introduce a gloss into the clear statutory language of s.17(10) which social workers have to follow on a daily basis. In any event, there was nothing in Mr Purchase’s submission on this issue which persuaded me that the judge had fallen into error.

I do not read the judge’s observation at paragraph 71 of his judgment – that the words “unlikely” and “reasonable” in s.17(10)(a) suggest that the test “will not be lightly met” – as indicating that he was applying too high a hurdle. Furthermore, as is clear from the rest of that paragraph, he was very properly following the guidance given by Munby LJ in R (VC) v Newcastle, which in turn was based on the statement by this Court in R (P) v Secretary of State for the Home Dept, supra. As this Court said in the latter case (at paragraph 95):

“the distinguishing feature of a ‘child in need’ for this purpose is not that he has needs – all children have needs which others must supply until they are old enough to look after themselves – but that those needs will not be properly met without the provision of local authority social services.”
In my view the judge was entitled to reject the arguments that the fact that SM had discussed s.20 accommodation with TW on 10 June 2021, and described the payment of £30 to him on 25 June 2021 as “s.17 cash”, indicated that he was in reality being treated as a child in need. The fact that it was the local authority who had entered the contractual arrangement with EYPP and referred TW to that agency for accommodation did not mean it was treating him as a child in need. The support subsequently provided by the local authority was via the Family Solutions team, not under s.17. On the totality of the evidence, and in particular the very clear terms of the social work assessment and the manager’s decision, the judge was entitled to conclude that the local authority treated TW as not being a child in need.

It was plainly open to the manager to conclude on the evidence that TW’s needs would not be met without the provision of services under Part III and that he was therefore a child in need. But the appellant has fallen well short of demonstrating that that was the only rational conclusion open to the manager. In those circumstances, the judge was right to dismiss the application for judicial review.

From TW’s point of view, it is of course very unfortunate that he was not designated a child in need because he is not entitled to be treated as a “former relevant child” and receive the benefits which would flow from that status. As Baroness Hale warned in R (M) v Hammersmith and Fulham LBC, there is plainly a risk that some cash-strapped local authorities may seek to avoid their responsibilities under Part III of the Act. But there is no basis for thinking that this local authority has taken that course in this case. Its decision was reached rationally after a careful assessment and was plainly in line with national guidance.

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Cards face upwards – Local Authorities and judicial review

Posted on May 8, 2015 by suesspiciousminds

 

I daresay that most of my readers don’t also read planning law (and neither do I), but Midcounties Co-Operative Ltd v. Forest of Dean [2015] has some wider importance.

 

There are times when Local Authorities get judicially reviewed, and the Court in this case set out that there are rules that apply to public bodies in their interactions with the Court that there aren’t with private litigants.

David Hart QC’s summary of the case over at UK Human Rights blog is something that I couldn’t better, so I will give you the link so that you can see how it should be done.

Local authorities and judicial review: they should not put their heads completely in the sands

 

The nub of it is, that a Local Authority was being judicially reviewed for its planning decision to allow a Tescos out of town supermarket – as this was the third time, they decided that they’d had enough of Court and would decline to participate and just let the wealthy supermarket fight the case if they wanted to.  (That doesn’t really work, since the supermarket chain weren’t a public body accused of behaving unreasonably – it was the Council’s decision to grant permission that was under review, not the supermarket’s decision to ask for it)

More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular ….. a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.

 

The Court rather neatly set out what a Local Authority who proposed not to settle a JR but not to actively attend and fight it would have to do.  (And if you read all of this and say “well, they might as well either settle or turn up and fight if they have to do all of this”, that’s rather the point)

It should at least consider the following:

(1) whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;

(2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;

(3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;

(4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.

 

I suppose that technically, a Local Authority who have decided not to turn up to fight their own judicial review might say “Well, our obligation was to consider WHETHER to do those things. And we considered it and decided that we didn’t”

I don’t recommend that. I don’t recommend that at all.

If, many years ago, my friend Simon had asked me for advice before he went up to a nightclub bouncer and said  “You think you’re so hard, because you’ve got muscles, do you want to step outside and we’ll find out how hard you really are?”, I would not have recommended that.  I would have used similar tones and certainty in my advice to Simon as I would to a client suggesting the above approach to judicial review – if somewhat less colourful language.

 

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Pannick attack

Posted on January 22, 2015 by suesspiciousminds

I know some of my readers are not in the Chris Grayling fan club  (which is a shame, because you get a lovely badge and a code book that allows you to translate what he’s saying into something that resembles common sense   – hint, you just say the opposite of what he’s saying)

 

so you might enjoy Lord Pannick tearing him a new one, and giving everyone a route map to crush the new judicial review legislation into oblivion in the future

 

Lord Pannick (CB): My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.

The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.

In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,

“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[

Official Report

, Commons, 13/1/15; col. 812.]

I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.

21 Jan 2015 : Column 1345

In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,

“unless the court is of the opinion that there are exceptional circumstances”.

At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.

Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.

Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.

We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.

I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.

21 Jan 2015 : Column 1346

I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,

“severe doubts about whether secondary legislation should be subject to judicial review”.

These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.

Furthermore, judicial review is not, as the Lord Chancellor again suggested,

“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[

Official Report

, Commons, 13/1/15; cols. 819-20.]

Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.

4.45 pm

Your Lordships’ Constitution Committee said recently, in its excellent report on the office of Lord Chancellor, that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.

 

If you want to see the Hansard debate (the rest of it is not quite so amazing as this, which actually made me want to stand on my desk and say “captain, my captain”) it is here

 

http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/150121-0001.htm#15012189000542

 

Judicial review is a thorn in my side, as it is for anyone who works for a public body – there is little that ruins your month more than getting a judicial review claim letter, it is a miserable and painful experience. But that pain is part of the price you pay for having a State that can be properly held to account for behaving unreasonable, irrationally or unfairly in its dealings with people.  Many people like me learn to tolerate and even love the thorn, and its a shame that our Lord Chancellor can’t see it that way.

But then, if you can’t grasp that your actual role is to be a Check and Balance, you might not understand the importance of Checks and Balances.

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serious case review versus judicial review – a (cough) review

Posted on July 23, 2014 by suesspiciousminds

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

 

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

 

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

 

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

 

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

 

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

 

The LSCB rationale for that was this :-

 

  • The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

 

 

 

  • Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

 

 

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

 

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

 

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

 

 

  • In the final analysis the father’s application turns on quite a narrow point.

 

 

 

  • The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

 

 

 

  • The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

 

 

 

  • Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

 

On that basis, the President looked at the father’s arguments

 

  • The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

 

 

 

  • Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

 

 

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

 

  • I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

 

 

 

  • Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.

 

 

 

 

 

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Booker

Posted on April 19, 2014 by suesspiciousminds

 

I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn’t any of those – so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story

http://www.telegraph.co.uk/news/uknews/law-and-order/10775631/Costs-ruling-in-family-court-penalises-those-helping-wronged-parents.html

 

Let’s break it down into the core allegations that are made

 

1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.

 

2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled

 

5. That she was then deported to America

 

6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought

 

7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )

 

7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  – it does appear that she became a High Court Judge in October 2013, so I stand corrected.]

 

8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000

 

9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.

 

 

I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.

 

Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk

 

Here is the deal

 

If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.

 

So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.

 

[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that’s probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]

 

 

ADDENDUM

It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012  http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.

 

There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.

 

My previous piece  https://suesspiciousminds.com/2013/11/01/it-aint-me-babe-it-aint-me-youre-looking-for/   .

 

Mr Booker’s previous column about this woman   http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]

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LAA LAA land (or judicially reviewing the legal aid bods and winning)

Posted on May 2, 2013 by suesspiciousminds

Ooh, exciting.  I am grateful to M’learned friend Miss Eleanor Battie of counsel for highlighting this case to me.

T, R and Legal Aid Agency 2013

http://www.bailii.org/ew/cases/EWHC/Admin/2013/960.html

Miss Battie has done a very good summary of the case here, on the UK Human Rights blog

LAA must give reasons about funding expert assessments in care proceedings – Eleanor Battie

In essence, you may recall that the Legal Aid Agency (previously the Legal Services Commission, previously the Legal Aid Board) implemented, with the express authority of Parliament, a series of measures aimed at reducing the burgeoning costs of expert assessments.  That was a fairly laudable aim, there could be no doubt that we had reached a point where the demand for expert reports was so exceeding supply that there was almost a housing-style bubble with experts being able to name their fee if you wanted them to do the work.

Unfortunately, and in classic State grasping control of an issue style, the baby was thrown out with the bathwater.

Almost every case involving an expert became embroiled in a battle of bureaucracy  (I am reminded of A P Herbert’s beautiful expression “I have been engaged in exhaustive, if one-sided correspondence”) where solicitors got the Court to agree the expert assessment that was needed to fight for their client but then it couldn’t happen because the LAA wouldn’t agree to pay for it.

This culminated in the issue coming before the then President of the Family Division, Wall LJ, who found that his request for a representative of the LAA/LSC to attend and clarify things wasn’t complied with, and when he telephoned, was told more or less (and this isn’t really an exaggeration) Oh, we don’t attend court hearings when we’re ordered to, we get so many of those orders, we just ignore them.

But the President reluctantly concluded that the power to order assessments and order that they be paid for (arising from section 38(6), the Family Procedure Rules and the Calderdale case) had evaporated, and it was now the LSC/LAA who had the final say, not the family Court.

This was in A Local Authority v D S and Others 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

where the President wove a fairly cunning trap for the LSC, although told them up front that this was a trap, and they should be ready for it, that a careful judicial decision that a report was necessary, coupled with careful analysis of why and why the costs were proportionate, would probably pave the way for a judicial review of an unreasonable refusal.

And so we arrived at a mountain of preambles in every single case involving an expert, just in case anyone was going to judicially review the LSC.

We also, in the interim, had Ryder LJ determine that the LSC had the power to say no to paying the costs of an expert assessment where the Court had decided one was needed but the parents had no funding and no money to pay for it.

So, we arrive now at this case, where once again, the Judge asked the LSC to attend/communicate with her and they declined to do so.

The judgment and order directing the expert assessment was very careful and completely D S and Others compliant, yet the LSC refused the assessment.

In the judicial review, Collins J, who accepts from the outset that he is not a family Judge (and thank heavens for that, given that he actually seemed prepared to put the child first, rather than the LAA’s interest), makes it plain that the LSC /LAA have the power to refuse or partly refuse the costs of an assessment ordered by the Court, but that if they do so, they HAVE to give reasons, and the reasons have to take into account that a Judge who knows the case and all of the issues gave a careful judgment saying that the report was necessary.

 [I’m a bit saddened that Collins J, in an otherwise magnificent judgment, resisted the temptation to say “The LAA have great power, but as Spiderman could tell us, with great power, comes great responsibility”.  This is why I will never, ever be made a Judge]

The LAA plead the impossibility of this, saying effectively that they say no so often that they don’t have the resources to give reasons each time.

Collins J rolls up his sleeves, takes firm hold of the baseball bat, and knocks that one clean out of the park.

  1. While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.
  1. The letter of 19 March 2013 gives no reasons to explain why the full sum put forward is not approved. Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President’s guidance. Guidance in this field from so authorative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review. Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval. In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012. That increase has, I was told, continued. Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week. That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons. Attempts to save costs in one way can have an effect which increases costs in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure. In R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at paragraph 76 Dyson LJ said this:-

“I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.”

These observations apply a fortiori where there is an absence of reasons when reasons are required.

I have to say, that I am delighted with the outcome, but rather surprised that the facts of this case got it. The expert assessment was for 180 hours, and the LAA originally agreed 130.

Given that their guidance figures for assessments are FAR FAR FAR below that, and the assessment costs as a whole were over £31,000 when the usual cost of an assessment has now come down to under £5,000 , the LAA would have had, I think, a decent case (had they (a) given reasons and (b) you know, bothered to file a skeleton argument in the JR case) for saying that the costs in this case were wildly disproportionate   (those costs are rather more akin to the residential assessment that the LAA suspected this was in disguise)

 

So, if you do get a cost of an expert declined, make sure you get the reasons from the LAA, and remember that scarcity of resources to give good reasons don’t make inadequate reasons adequate…

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“The driver cannot ignore the passengers”

Posted on April 15, 2013 by suesspiciousminds

 The judicial review case of H R v Kingston Upon Hull 2013  – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

 The case is here

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

 This is, I think, the pivotal passage from the judgment (hence the title)  – underlining mine

 When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

 Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.

 They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

 The LA then moved the children, earlier than they had intended to.

 The parents made an application for judicial review, seeking to overturn two decisions :-

  1. That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
  2. That the decision on 1st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2  – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

 The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.

  1.  I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

 The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when  all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS.  Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

 The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary.  Underlining again mine, for emphasis.

  1. An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

  1. There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
  1. When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
  1. During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
  1. In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

  1. The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced.  [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this?   It seems to me that it probably is.    

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

 

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other  – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

  1. I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

  1. Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
  1. The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
  1. It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
  1. During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

 

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders.  I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

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“Not with a bang, but a whimper”

Posted on April 11, 2013 by suesspiciousminds

Possible fallout from R (JG) v the Legal Services Commission 2013

This is the much anticipated, and long-awaited, outcome of the judicial review against the LSC (now the Legal Aid Agency, LAA) and their refusal to pay the child’s solicitors the costs of an expert fee in private law proceedings where the Court had determined (a) that they needed expert evidence to determine the case (b) that the parents who were not in receipt of public funding could not pay for it, or even pay a third share of it, and thus (c ) that the entire costs of the expert assessment should fall upon the child’s public funding certificate.

 That seemed to be the only way for the Court to obtain expert evidence when faced with parents representing themselves or who had no funds to pay for an expert; but many observers were becoming increasingly concerned that the Courts were appointing Guardians in private law cases not so much for what the Guardian could bring to the table, but so that the Court had access to the child’s public funding.

 The LSC were always going to take a stand on this at some point, and refuse to pay all of the costs of an expert report when the parents were not contributing.

 Here are some of the reasons, from a quick think, about why expert evidence might be needed in private law proceedings in order to reach a fair conclusion :-

  1. The child presents as having psychiatric or psychological problems – maybe the child is self-harming, or has anorexia
  2. The child has a medical condition, for example Asperger’s Syndrome, which may impact on change, or routines (and thus how contact and residence are to be managed), or the parent has a medical condition which affects their ability to care, or travel to contact
  3. There are allegations of Parental Alienation Syndrome, or implacable hostility
  4. There are historical concerns that require a risk assessment of future risk
  5. There are allegations about substance misuse  or alcohol misuse (testing, psychiatric evidence about prognosis)
  6. There is a dispute about paternity that requires DNA evidence   (unless the Court is going to start resolving paternity disputes without DNA testing)
  7. There are concerns about the mental health of either parent which requires expert evidence as to diagnosis and prognosis

In our brave new world where neither parent is entitled to public funding, none of those assessments can be done unless someone is prepared to pay for them.  And the LSC have made it plain that this someone is not going to be them, where they have been parachuted into the case as a portable chequebook (sorry, Rule 16.4 Guardian)

Sadly, the judgment in JG v LSC is not yet up, and I’m sure that the Court made attempts to put a ring fence around the most serious sorts of cases and put some exceptional circumstances in place (so I will return to the topic once the judgment is up)

 But in broad terms, the child’s solicitor, and the Law Society lost, and the LSC won. Not a huge surprise. We all saw that coming.   It doesn’t seem  to me that the Courts fought the LSC on the beaches on either this one, or the prior authority case, the judgments in both may as well have been written on a white flag.

 It seems, to this jaded hack, that Abu Qatada was able to get our Courts to do more for him, than the Law Society were able to get a Court to do for children. *  I will cheerfully retract this, if when I see the judgment, it appears that a valiant but ultimately doomed  attempt was made by the Court to  preserve the interests of children as being paramount in the whole exercise. 

*{too harsh? Probably, but I am a bit crosspatch about this. For example, in the recent planning case of  Stevens v Secretary of State for Communities and Local Government 2013, the Court reminded themselves that where a persons human rights are impacted disproportionately by a decision, the Court can look at things more widely than as a pure judicial review.  Was that done in this case?

Furthermore,…….the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School [2006] UKHL 15: (“SB“) and Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19; (“Miss Behavin’“))

Thus, in SB, Lord Bingham said (at [29]):”The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”;

and, consequently, what matters in any case is “the practical outcome, not the quality of the decision-making process” (at [31]).  

And I ask, what the practical outcome on children and families of having Courts wish to obtain expert evidence to achieve a fair result in a case but being prevented from doing so, would be?}

 The LSC relied heavily, as they would,  on section 22 (4) of the Access to Justice Act, which provides that costs should not fall on a publicly funded party that would not otherwise have fallen on the party if they were not publicly funded.  [Of course, that Act was written at a time when the sheer volume of unrepresented litigants could not be foreseen, as it was pre LASPO, and I have yet to see whether the judgment wrestled with whether s22 (4) in these circumstances led to an incompatibility with section 1 of the Children Act 1989]

 And the LSC thus argued, and were successful, that the Court would not have made an order that the father or mother pay the entire cost of the expert fee, and that the most the LSC should pay is an equal share, one third.

 Where that leaves children, when the question for the Court in all those private law cases where the parents are not both in receipt of public funding (i.e nearly all of them) and the Court consider that an experts report is necessary to determine the case, is somewhere towards the source of the Swannee.

 *( I think it would need to be both parents getting funding, since the same principles would apply to  ‘parent gets public funding as a result of say domestic violence, would still be the LSC saying that they would only pay the share matched by the other parent)

 Can a Court, in fact, order that a parent pay for the costs of a report? They are an adult, and I think the Court are in difficulties ordering an adult to incur costs, or to do anything  (short of injunctions).  The Court can merely say, if you want to run your case, then there will be consequences for your case if you don’t comply with the directions that have been made. Ordering an adult to do something, or pay for something seems to me to need some statutory basis for the Court having that jurisdiction.

 So the Court can of course say “If you want to obtain this report and rely on it, then you will have to pay half of the costs. No costs, no report.” 

 But that doesn’t help, because of course, when you have two parties to litigation, one of them has a vested interest in not obtaining such a report. They are happy not to have it done.

 And will any expert take on an instruction where the parents are paying privately?  If it were me, I would want cash up front, because how would I get the payment from a mother if my report says something she doesn’t want to hear? Even if the parent is happy with the report, once they have it in their hands, what is the incentive to pay for it? So, cash up front is the only way.

And we are back, again, to the concept that money can buy you a better service in the family Courts   (a parent on income support who wants a report on how their child’s Asperger’s Syndrome might impact on a shared residence arrangement is not going to get one, whereas a parent who is a quantity surveyor say can get the report)

 It doesn’t feel too great to me, that in private law cases (and contrary to what the Family Procedure Rules say) the key question for a Court considering the need for an expert report is not

“Is this report necessary to assist the Court to resolve the proceedings”   but

 “Who will pay for this report?”

[Also, eek, will the LSC now try to clawback all of the expert fees that they have paid out to solicitors representing rule 16.4 guardians in the past?]

[Addendum – very grateful to 11kbw who have the judgment up on their website http://www.11kbw.com/judgments/docs/PNTCJudgment.pdf

 readers can form their own impression as to whether the right of parties to a fair trial, and the issues of whether a broad principle that if parties can pay for a report it shouldn’t all fall on the LSC has been blurred with LASPO whereby a party can now be not in receipt of public funding although they have no means to pay for representation or disbursements.  For my part, I thought an awful lot of the judgment was on the “well, we won’t be having those experts anymore, and this just helps with that” side of the fence.

For example  para 67:-  

“If  the children’s guardian is of the view that the issues identified are beyond his or her skill and expertise, the Court may be minded to ask CAFCASS whether the case can be co-worked by an extended scope practitioner who if necessary can be appointed as a joint guardian”

The exceptions aren’t set out in detail , but are touched on in principle at  para 87, the LSC having argued that the Court would have no jurisdiction even in extraordinary circumstances (the report being absolutely necessary, and the Court having carefully explored whether the other parties could pay a share or a reduced share) and the Court knocked the LSC back on this, though no other point; and said that there WOULD be circumstances in which if the report was necessary and there was simply no other way, the LSC might be ordered to pay for it. 

[Although they don’t need to follow a court order, don’t need to appeal it, and there’s no legitimate expectation for a child’s solicitor that a court order ordering the LSC to pay for it will ever result in a cheque being written, so hooray!]

The overwhelming message I take away is – don’t worry too much about how you are going to fund experts, because there won’t be any.  Bearing in mind that this judgment was prepared by the Judge seized with responsibility for modernisation of family justice, that’s an important message.  But read it and decide for yourselves, it is very possible that I am being deeply unfair. ]

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Pindown revisited?

Posted on February 11, 2013 by suesspiciousminds

 

The Court of Appeal decision in  The Childrens Rights Alliance v Secretary of State for Justice 2013

 

 

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK.  That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

 

 

The case can be found here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

 

 

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

 

 

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

 

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

 

  1. it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.
  1. At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

 

 

 

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

 

 

  1. 9.       “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

 

 

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

 

  1. 15.   “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

 

 

 

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

 

  1. At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

 

 

 

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

 

 

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint.  But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

 

 

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

 

That might well be ancient history for some of my readers, so I will elaborate.

 

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry.   (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

 

 

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon  say  “Currently unavailable. We don’t know when or if this item will be back in stock.”

 

 

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it.  And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

 

 

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people.  I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance.  It is the people who gave them that guidance who let the children down.

 

 [As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

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Ghosts in the judicial review machine (or, “I think it’s going to be a long, long time”)

Posted on January 15, 2013 by suesspiciousminds

 

A discussion of the decision of R and Naureen Hyatt and Salford City Council 2012   (which relates to judicial reviews, costs disputes and accommodation under section 21 of the National Assistance Act 1948 as it pertains to failed asylum seekers, so I hope you will forgive me for a flight of fancy and digression to liven it up)

 

I once read that the screen-writing Coen Brothers use a particular technique in creating tension in their films. They write a scene, and box the character into a corner, a predicament that there is no possible way out of.  They bat around possible solutions until they exhaust all possible exits that they can think of.

 

Then they leave the script for a week, a month, however long it takes, until they have hit upon an escape mechanism for that predicament – the idea being that if they are genuinely stumped at how to escape the scene, the audience won’t be likely to be able to second guess in a few moments the solution that took them months to hit upon.

 

 

In Ancient Greece, when playwrights constructed their plays, usually involving a combination of philosophy, fine wordplay and frogs, they often found that they had boxed themselves into a corner. The hero was faced with a situation that could not possibly be resolved.  A grisly death, a broken heart, an unsolveable dilemma, was all that lay ahead.  How to deliver a happy ending?

 

And their solution to this was the deus ex machina, the ghost in the machine. A crane type device would be used to lower an actor into the stage or arena, the actor playing a God. Of course, the God could solve any problem in an instant, resolve any dilemma, any drama.  That was a boon to the playwright, but of course robs the scene of any dramatic tension.

 

Imagine if you were watching an episode of 24 and Jack Bauer was trapped inside a volcano  in Hawaii that’s about to erupt, he is handcuffed to  the steering wheel of his car, and the ignition keys are in the beak of a paramilitary parakeet who we have just watched fly away, and then he learns that a nuclear bomb is about to go off at the Hoover dam in just two minutes and only his fingerprint can stop the bomb and then the credits roll. Tense, or what?   

 

volcano

 

If you tune in the following week, to see God fly down into the volcano, stop time and instantly transport Jack to the Hoover damn and unlock his handcuffs, you might feel disappointed by this resolution.  The next time there is a cliffhanger, you won’t feel apprehensive and nervous about how Jack will get out of it, you’ll just think “Ah, God will come down and sort it out”    – in short, the cheap device used to get the writers out of a tough spot will just make you feel cheated.

 

[The way I did when watching the black and white serial Rocket Man aged 12, when a “cliffhanger” showed a car in which Rocket Man was locked in the trunk plummet off a cliff, clearly showing that it went over the edge and that nobody got out of it so he was undoubtedly dead, and next week’s episode began  with completely different footage of him jumping out before it went off the cliff.   I remain bitter about this, to this very day, and I never watched another episode]

 

rocket man 

 

 

Curse you Rocket Man! !!

 

So, deus ex machina became frowned on as a narrative device, and to this day are viewed as a bit of a cop out, or cheap flimsy storytelling.

 

 

Anyway, on to the case,

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1795.html

 

 

Essentially, the claimant was a failed asylum seeker and wanted the Local Authority to provide him with accommodation under section 21 of the National Assistance Act 1948.

 

  1. Section 21 of the 1948 Act provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —

(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.”

 

So, his being a failed asylum seeker makes it very hard for him to get accommodation under s21, and he claimed his need was not as a result of destitution or physical effects of destitution, and the LA claimed that it was.

 

 Various demanding and defying letters were exchanged and a judicial review was issued.

 

By the time the case got into a substantive hearing, the claimant had managed to overturn the immigration authorities decision that his asylum claim was refused. That then gets rid of s 21 (1A) as a relevant factor.

 

Accord was reached that he would be provided with accommodation and the claim was withdrawn.

 

There then followed a debate about costs – the Claimant claimed that he should win his costs because he had achieved his desired result but had had to bring a JR case to do it, the LA claimed that costs should not be paid as the issue had not been litigated and the Claimant might well not have been successful if it had been.

 

The Judge decided that it was not possible to determine which side would have won had the issue been litigated, and made no order as to costs.

 

The Claimant appealed.

 

The relevant legal authority on this vexed issue of where costs fall in a JR case where the matter is settled rather than litigated is set out in  Re M  v Croydon LBC  2012

 

 

  1. On 8th May 2012 the Court of Appeal handed down its decision in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607. The claimant in that case was an asylum seeker, whose age was in dispute. The claimant brought judicial review proceedings to compel the defendant local authority to reassess his age. The action ultimately settled in the claimant’s favour, leaving only the question of costs to be determined by the court. Lindblom J decided that there should be no order for costs. The Court of Appeal allowed the claimant’s appeal and ordered the defendant to pay the claimant’s costs.
  1. Lord Neuberger MR gave the leading judgment, with which Hallett and Stanley Burnton LJJ agreed. At paragraphs 47 to 64 Lord Neuberger gave general guidance as to how costs should be dealt with following a settlement. In the latter part of that passage he dealt specifically with cases in the Administrative Court. He identified three different scenarios. The first scenario is a case where the claimant has been wholly successful whether following a contested hearing or pursuant to a settlement. The second scenario is a case where the claimant has only succeeded in part following a contested hearing or pursuant to a settlement. The third scenario is a case where there has been some compromise which does not actually reflect the claimant’s claims.
  1. At paragraph 63 Lord Neuberger gave the following guidance in respect of the third scenario:

“In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

 

[This is a pain in the neck decision, since now when you settle a JR, you have to have an argument about who would have won, if you’d fought the whole thing, which is nearly as cumbersome as just fighting the whole thing] 

The Claimant argued that effectively, having settled the case and obtained his desired outcome, the original Judge ought to have determined that he had succeeded or would have succeeded had the case been litigated, and that costs should have followed.

 

The Court of Appeal disagreed , and you will see from my underlining, that they considered that the reason for the favourable settlement was the intervention of a third party – the immigration authority reversing their decision – a deus ex machina, and where that was the cause of the favourable settlement, one could not determine that the Local Authority were to blame.

 

  1. The second ground of appeal is that when one looks at all the factors which ought to have been taken into account, the judge should have been driven to the conclusion that the defendant should pay the claimants’ costs. The factors upon which the claimants rely are the following:

i) The claimants achieved the substantive benefit which they were seeking, namely long term housing and welfare support.

ii) The claimants achieved an immediate benefit, namely interim relief, which they could not have achieved without litigation.

iii) The claimants complied with the pre-action protocol and sent appropriate letters to the council before commencing proceedings.

iv) The conduct of the council was unreasonable. It resisted the claimants’ claim at every stage. It brushed aside the letters from the claimants’ solicitors. It did not provide interim accommodation for the claimants until it was ordered to do so.

v) The claimants’ case was strong. If the litigation had gone to trial, it is very likely that they would have won.

  1. Let me deal with those factors in the order set out above. As to the first factor, it is undoubtedly correct that the claimants have achieved their ultimate objective, namely long term housing and welfare benefits. On the other hand they have achieved that objective not because of any court order or concession by the council. The claimants have achieved that objective because of the Secretary of State’s decision to grant exceptional leave to remain. As Moore-Bick LJ observed in argument, this came as a deus ex machina. In my view the favourable intervention by a third party not involved in the litigation cannot be a reason to order the defendant to pay the claimants’ costs.
  1. I turn now to the second factor. The claimants applied for interim relief. The council opposed the application. The court granted interim relief. If the claimants had applied on 10th December 2010 for the costs of the interim relief application, Judge Waksman may have ordered the council to pay those costs. Alternatively, he may have ordered that the claimants’ cost of the application be costs in the cause. In the event, however, with the agreement of both parties Judge Waksman reserved the costs of the interim relief application, without any discussion of the basis on which costs were reserved.
  1. Since the underlying dispute between the parties never came to trial, I do not see any basis upon which Judge Stewart on 12th April 2012 could have ordered that the costs reserved by Judge Waksman on 10th December 2010 be paid by the council. Indeed in their lengthy written submissions on costs dated 30th March 2012 the claimants did not ask for an order that they be awarded the reserved costs of the interim application. I am therefore quite satisfied that Judge Stewart cannot be criticised for failing to make any separate and specific order in respect of the reserved costs.
  1. Mr. Wise relies upon the claimants’ success in obtaining interim relief as one of the reasons why Judge Stewart should have awarded to the claimants the entire costs of the action. He points out that the claimants got what they wanted in the teeth of the council’s opposition.
  1. The difficulty with this argument is that Judge Waksman was not adjudicating upon the substantive dispute between the parties. He began his judgment by saying that for the purpose of the current application the claimants had “a fairly modest task”. They only had to show their case was “prima facie arguable”. He did not even decide whether the claimants’ case was strong enough to merit the grant of permission to proceed. He simply made an order for interim relief to protect the claimants’ position until there could be a “rolled up” hearing.
  1. In my view, the fact that the claimants obtained interim relief does not mean that they were successful in the action. It is not a reason for awarding to the claimants the costs of the action.
  1. I turn now to the third factor. The claimants are to be commended for complying with the pre-action protocol. If following the commencement of proceedings the council had conceded the relief sought without admitting liability, they would have had difficulty in resisting an order for costs. The present case, however, is different. There has been no substantive decision by the court and no concession by the council. In these circumstances the fact that the claimants complied with the protocol is not a reason for awarding to them the costs of the action.
  1. I turn next to the fourth factor, the conduct of the council. The council, like the claimants, have been consistent. They have carried out assessments as required by 1990 Act. They concluded that they were not obliged to provide accommodation for the claimants pursuant to section 21 of the 1948 Act. This was the council’s position both before and after the issue of proceedings. Whether the council were right in their assessment of the position is a matter which has not been judicially determined. In my view, the council’s conduct in this case is not such as to attract an adverse costs order.
  1. I come finally to the fifth factor, the strength of the claimants’ underlying case. We have heard submissions from Mr. Wise as to why the claimants would probably have won. We have heard submissions from Mr. Howell as to why the claimants’ case was unfounded and they would probably have lost.
  1. It is not the function of this court on a costs appeal to give a substantive decision about litigation which never came to trial. Suffice it to say that both Mr. Wise and Mr. Howell put forward formidable arguments.
  1. For present purposes, it is necessary to focus on the material which was placed before Judge Stewart in April 2012. This comprised the parties’ written submission on costs and the court file. The court file would have included the pleadings and the evidence previously lodged. On reading and re-reading this material, I am not surprised that Judge Stewart was uncertain as to who would have won if the action had come to trial. I find myself in a similar state of uncertainty. In my view, it cannot possibly be said that the judge’s conclusion in this regard was either wrong or perverse.
  1. On reviewing all the circumstances of this case, I do not believe that the judge’s costs order can be faulted. The judge made no error of law or error of principle in the exercise of his discretion under rule 44.3 which would warrant intervention by this court

 

 

I know, this rambled about a bit *, but come on, you never thought you’d get Jack Bauer, volcanoes, Rocket Man, Greek theatre and parakeets in a law article on costs orders in judicial reviews, did you?

 

[* a lot ]

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