O, R (on the application of) v London Borough of Hammersmith and Fulham

O is a 13 year old boy. He has complex needs because he suffers from, amongst other things, severe autism and attention deficit hyperactivity disorder. These conditions make his behaviour very hard for his family to manage. Although plainly they would like it to be otherwise, his mother and father (“the parents”) have come to the difficult and painful conclusion that the point has come when they are unable to meet his needs at home. Their local authority, the London Borough of Hammersmith and Fulham (“the local authority”), accepts that O is “a child in need” and agree that the situation is now such that the parents are prevented from providing him with suitable accommodation or care, with the result that the local authority has a duty under section 20 Children Act 1989 to provide accommodation for him. The question that arises in this case is as to what form that accommodation should take.

It is agreed that at the moment O needs accommodation 52 weeks of the year. The parents consider that his needs can only be met if he can live in one place where he can be both cared for and educated. They have identified Purbeck View School in Dorset as a suitable establishment and this is where they wish O to go, although they would have been prepared to consider an alternative establishment of a similar nature had one been suggested by the local authority. The local authority are of the view that O should attend a school very near his home, Queensmill School, and live in a small children’s home in Croydon (“the Croydon home”) which caters for a handful of children and young people and is situated about 9 miles from Queensmill.

Both O and the local authority seek to appeal from a decision of Blair J on 24 March 2011. The case was listed before us for consideration of whether to grant permission to appeal with the appeal to follow directly if permission were to be granted. By the time of the hearing, there was no doubt that it was appropriate to grant permission for O’s appeal at least and we proceeded without giving the question of permission separate consideration. I now record that I would grant O permission to appeal. The question of permission for the local authority’s appeal is more complicated and I will return to it below.

Blair J’s judgment ([2011] EWHC 679 Admin) is accessible on bailii.org.uk and I shall therefore limit the extent to which I set out its contents in this judgment. The proceedings before the learned judge were judicial review proceedings challenging the lawfulness of the local authority’s decision as to O’s placement. The claim was issued on 11 February 2011. It followed a core assessment by the local authority dated 25 January 2011 which set out three options for consideration. The first two involved attendance at Queensmill School with O either remaining at home with a high level of support (at that time the favoured option) or living in a foster placement with carers experienced in working with severely autistic children. The third possibility, proposed if neither of the other options was available, was that the local authority would “consider a residential placement for O which would meet his needs for stability, structure, minimal transitions, and include input from carers experienced in working with young people with autism”.

The local authority plan was for further discussions to be held with the parents following the core assessment and there was a meeting with them on 26^th January 2011 However, this did not resolve things and on 31^st January, the parents’ solicitors sent a pre-action protocol letter requiring the local authority to agree to O starting at Purbeck View forthwith. The judicial review proceedings and an application for an interim order requiring the local authority to place O at Purbeck View followed without any more dialogue.

On 8 March 2011, the local authority set out its concluded position in the first witness statement of Mr Tim Odell (a social worker who is employed as a team manager in the local authority’s Disabled Children’s Team). In that statement, Mr Odell accepted that the local authority had a duty under section 20 Children Act 1989 to accommodate O and said that the local authority saw the best option for O as a local residential placement and attendance at Queensmill School. The residential placement then proposed was at an establishment called Sybil Elgar School and was to be for 38 weeks a year. It was this decision (“the March decision”) that O should be placed at Sybil Elgar School and Queensmill School, spending the balance of his time at home, that was the focus of the hearing before Blair J.

O’s case was put to Blair J on a number of bases. A fundamental element of it was that there was only one rational course open to the local authority in discharging its duty under section 20, namely to make provision for him to attend Purbeck View for 52 weeks of the year. The argument was that O had such difficulty with transitions between his living accommodation and his school that the only way in which his needs could be met was by an arrangement that involved minimal transitions and as Purbeck View was the only such placement identified, it was the only appropriate option.

Counsel for O, Mr Stephen Broach, sought to persuade the judge that Wednesbury unreasonableness was not a single standard but varied according to the type of matter under review and that the instant case required an intense review. The judge accepted that “the profoundness of the impact of the decision requires a degree of intensity of review” (§66). He said that in so doing, he was adopting the approach of Langstaff J in The Queen on the application of L v Leeds City Council [2010] EWHC 3324 (Admin). The conclusion of the review that he carried out in this way was that the 8 March decision was irrational. This was for two reasons. The first was that the local authority had put too much weight on the decision about O’s education taken by the First Tier Tribunal on 5 February 2010 which the judge thought came close to being a determinative factor in the local authority’s decision. This was inappropriate in his view (§71)because the position had moved on since that time with O being no longer 11 but nearly 13 and probably commencing puberty, and also in the light of the local authority’s own core assessment. The second was that the local authority had “given insufficient weight in its decision to the accepted need to minimise transitions” (§72).

As he considered these points to be fundamental to the local authority’s overall judgment, Blair J set the March decision aside on Wednesbury grounds. He declined to grant the mandatory order that O sought to oblige the local authority to place him at Purbeck View because he did not consider that an immediate placement there was the only result legally open to the local authority (§76).

Two other strands of the argument before Blair J have relevance for this appeal and I take the opportunity to set them out here, whilst I am dealing with the hearing below.

The judge recorded (§37) that it had been contended that the local authority had failed to treat O’s interests “a primary consideration” because it had had regard to the cost of the different options but that that argument had effectively fallen out of the picture because the local authority had made it plain that its decision was based on what it considered appropriate for O and that cost was not a factor in it. The figures we were given during the appeal hearing showed that the cost of the local authority’s present proposal is slightly more than the cost of Purbeck View. This indicates that cost remains irrelevant to its decision as to O’s placement.

The judge also recorded (§38) that it was contended that the local authority’s decision was a disproportionate and unlawful interference with O’s Article 8 ECHR rights or that in the alternative the local authority was in breach of its positive obligations to promote the fulfilment of his Article 8 rights. In response to this contention, the judge said (§64)

“I would adopt the approach that Wilson J adopted in R on the application of CD v Isle of Anglesey CC [2004] EWHC 1635 (Admin). He said that he did not think thatit added anything to the case to seek to augment the statutory duties upon the local authority with their duties not to infringe the claimant’s rights under Article 8, given that the statutory scheme in the present case is concerned with positive obligations all of which are consistent with, indeed intended to promote, Article 8 considerations.”

Notices of appeal were issued by both sides very shortly after Blair J’s decision. O’s objective was to achieve the mandatory order that Blair J had refused. The local authority wished to attack the judge’s finding that the March decision was irrational.

However, the local authority did also rethink its position. So it was that the plan for Queensmill School and the Croydon home was developed. That plan was confirmed and explained to the parents by the local authority in a letter of 13 May 2011 (“the May decision”). It differed materially from the March decision in that the Croydon home had replaced Sybil Elgar School and, instead of provision for only 38 weeks of the year, O was to have provision for the entire year.

The parents did not consider that this met O’s needs and did not agree with the new decision. The conventional course at this stage would have been for O to commence fresh judicial review proceedings. That was not the course taken on his behalf. Instead, his legal representatives told the local authority that they would be asking the Court of Appeal to resolve the matter. That was exactly what in due course they did, despite the local authority’s objection to such a procedural course.

Mr Greatorex on behalf of the local authority submitted that we did not have jurisdiction to entertain a challenge to the local authority’s new decision. Mr Wise QC for O advanced a number of reasons why it would be a good idea for us to deal with the challenge (avoidance of delay, important questions of law that need to be decided, saving cost etc.)

It was not suggested that the Court of Appeal has any original jurisdiction in judicial review cases. It can, of course, hear judicial review challenges by virtue of CPR Rule 52.15 but that is in the context of permission having been refused in the court below and that decision appealed to the Court of Appeal. However there are, in fact, at least two ways in which we are entitled to consider the local authority’s May decision. Judges of the Court of Appeal can act as High Court judges by virtue of section 9 of the Senior Courts Act 1981 and we can therefore exercise the powers of the Administrative Court to review the May decision. Furthermore, fresh evidence can be admitted in the Court of Appeal as part of an appeal. Evidence relating to the May decision satisfies the well-known rules for the admission of such evidence. Its relevance to the issues in the appeal against the March decision is self-evident so I will not spell it out. Suffice it to give one example, that is that it would be difficult to evaluate the argument that Blair J should have granted a mandatory order and then to consider whether to grant such an order ourselves without information as to the important developments that there have been since the hearing before him, most notably the local authority’s new proposal. I would be minded to give the permissions necessary to enable us to make use of both of these routes.

However, despite my conclusion that in principle we can consider the May decision and should do so in this case, I have considerable sympathy with the local authority’s stance in relation to the procedure adopted by O’s representatives. I would not wish it to be thought that the course we have taken here will be open in every case. We have permitted argument about the May decision for essentially pragmatic reasons, not least because of the pressing need to reach a decision so that the new arrangements for O can start at the beginning of the new school term and for reasons of cost. I recognise that judicial review claims can be something of a moving target and that it is not uncommon that, between the issue of proceedings and the hearing, the first decision is succeeded by a new decision (maybe even a succession of new decisions) in an attempt to remedy flaws in the first one. Our attention was invited to what Munby J (as he then was) said in R (on the application of P) v Essex County Council and Basildon County Council [2004] EWHC 2027 (Admin) about the Administrative Court’s approach in such circumstances. Although that court may take the pragmatic view that it will adjudicate upon the real dispute between the parties without requiring distinct and separate applications for judicial review of each decision, Munby J stressed that the proper applications to amend have to be made and the pleadings put in order so that everyone knows in advance the nature of the case being made. I would endorse that and add that it may be that appellate proceedings in the Court of Appeal are perhaps less amenable to this pragmatic approach than are first instance proceedings for judicial review.

Clearly, there cannot be any latitude if it would cause prejudice to either party, for example because the new case requires them to adduce evidence which they have not been able to assemble or which it would be inappropriate to adduce at an appeal hearing or because the court will be deprived of any other material, such as documents or argument, which is required for its decision. That was not the case here. Not surprisingly, Mr Odell said in his witness statement for the appeal hearing that he was uncertain what issues he should be addressing, but Mr Greatorex did not identify any respect in which the local authority found themselves short of something that they needed in order to deal properly with the issues in relation to the May decision.

The foundation of O’s case is that there is only one way in which O’s needs can lawfully be met, that is by a placement at Purbeck View. As I will go on to show, if this proposition is not established, none of the arguments that Mr Wise deploys on O’s behalf can succeed.

A powerful case for placement at Purbeck View is undoubtedly presented. The elements of it are O’s mother’s evidence about him, the joint medical opinion of Dr Hindley and Professor Baird, and the opinion of Ms Dove, an independent social worker.

I need not recite here the details of O’s mother’s evidence. It sets out eloquently and in detail the enormous challenges that care of O presents for the whole family (which comprises not only O and his parents but also his two younger brothers) notwithstanding their great love for O and their dedication to him. The parents’ resolve to get the best possible care for O is clear.

Professor Baird is a consultant paediatrician and professor of paediatric neurodisability. She diagnosed O’s autism when he was 2 ½ years old and has been involved with his care since then. Dr Peter Hindley is a consultant child and adolescent psychiatrist who was asked by Professor Baird in 2010 to assess O’s social and educational needs and to assess the wider social and emotional needs of the family. He was subsequently asked by O’s solicitors to provide a joint report with Professor Baird making recommendations about the type of placement that would be in O’s best interests.

Dr Hindley and Professor Baird are of the view that O differs from many other autistic individuals in that “he reacts strongly and quickly to stimuli, to a degree that is highly unusual in young people with autism”. Paragraph 12.1 of their report of 20 June 2011 reads:

“Thus although O’s emotional and behavioural responses might be considered to be typical of some young people with autism, the extent and degree of his responses is far more extreme than those that I have seen in children with autism in my over 20 years of practice as a child and adolescent psychiatrist.”

They do, however, consider that O has significant abilities and that in the appropriate environment he can progress and develop. They recommend that:

“O needs a 52 week placement in a setting where educational and social provision is carefully integrated. That is provision needs to be on the same site and there needs to be close collaboration between all members of the staff team. This will allow the staff at the placement to develop an individualised care package for O which addresses his needs and optimises his development. In addition staff need to be specifically trained in care of young people with autism and have access to specialist input from speech and language therapy, clinical psychology and psychiatry.”

They do not consider that a package of Queensmill and the Croydon home would meet O’s needs. They are satisfied that Queensmill would be able to meet his educational needs but they consider that it is not clear that the Croydon home would be able to meet his social needs. They consider that it could not provide the highly structured and predictable environment that he needs and have concerns for his safety and also because they are not confident that the staff there understand the extent to which specialist intervention needs to be fully integrated into O’s daily care. They are concerned also about the transition between Queensmill and the Croydon home. This would involve transport provided by a third organisation and they consider that it would lack “the kind of fine tuned and highly nuanced coordination that O needs”. Furthermore, they make a number of comments about the journey itself:

“….the local authority’s proposed package entails O travelling at least an hour each way by car and potentially to a school near to his home. The journey alone has the potential to be highly distressing for O, particularly if there were unpredictable changes of driver and escort. This distress could be compounded if O was travelling in the vicinity of his home. This could create a highly challenging situation for O’s driver and escort and could lead to a very risky situation if O tried to leave the car.”

In contrast, they support the recommendation that he be placed at Purbeck View. They comment:

“We are reassured that O’s family would make every effort to ensure that regular contact was maintained with O. It could be argued that a 52 week placement would provide the safe and secure setting in which relationships could be rebuilt and allow the family to have more enjoyable experiences together, both at school and at home.”

Ms Dove’s most recent report is dated 8 June 2011. She remains of the view that only Purbeck View can meet O’s needs and provide him with the 24 hour curriculum that she considers he requires. She does not feel able to comment on Queensmill School. Her observations are about the proposal to use the Croydon home about which she has a number of concerns. She observes that it is not “an autism-specific resource” although she notes that she was assured that any additional training required by the staff there in relation to a particular child would be provided. She considers there to be deficits in the proposed approach of the home in that they appear to focus on “management through containment rather than the primary focus being on progressing [O’s] development” and may lack understanding of O’s functioning, to judge by their suggestion as to how his anxiety at times of transition could be reduced. She is also concerned about O’s interaction with the other residents in the home, from whom he is different and who may react inappropriately to him. She says:

“I believe that the separate living arrangements, as still proposed by the local authority, would compromise his social care needs and thus his overall progress and development…..Whilst there would undoubtedly be contact between the two environments …. they would not offer the same structure and sense of stability as a single placement would offer. Transitions would not be minimised, the importance of which was highlighted by Mr Justice Blair. Whilst I note that it is usually anticipated that a young person being transported to and from school will have the same car, escort and driver, this cannot obviously be guaranteed. Such inconsistencies would further increase O’s anxiety levels. The journey each way …would take in excess of an hour the actual times varying depending on traffic. I would also understand that the new site for the secondary school part of Queensmill is within one mile of the family home, in an area which is familiar to O and would be likely to cause him confusion and separation anxiety on a daily basis. I would additionally suggest that the fact that there is no clinical or therapeutic input directly available [through the home] is of significance when considering O’s needs in this regard and the importance of these and associated strategies on a consistent basis across the spectrum of his waking day.”

She goes on to identify how a placement at Purbeck View would avoid these difficulties.

The local authority does not question the merits of Purbeck View but it does not consider it to be the best placement for O at present. The evidence on which it relies to support its proposed package comprises the evidence of the social workers (Mr Odell and Ms Saunders), the opinion of Mr Dwyer (a local authority educational psychologist who has assessed O on several occasions, including visiting him at his present school) and advice from the headteacher of Queensmill School (Mrs Ragan).

It is important to recognise that expertise in relation to the needs of children with disabilities is not only to be found in the medical profession or in outside experts commissioned to provide reports on particular issues. Local authority social services teams also have considerable expertise by virtue of their own professional qualifications and experience. The Children’s Disabilities team, of which Mr Odell is part, consists of 12 social workers. There are 220 families allocated to the team, all of whom have one or more children with a severe and permanent disability, the range of disabilities being wide but including autism. Queensmill School, which has been rated by Ofsted as outstanding, also has a great deal of expertise in the particular field of autism, receiving children with the most complex of needs, and the head teacher speaks of her own 40 years of experience.

Mr Dwyer’s advice is limited to the question of educational provision and the transition between home and school. In his letter of 11 April 2011 he says that it is clear that O finds transitions difficult. He comments, in the context of his assessment of O in his present school as, essentially, a weekly boarder:

“I feel that his difficulty with temporal concepts/conceptualisation is making the idea of going home at ‘the end of the week’ difficult for him, hence some behavioural issues at the moment. This does not mean to say that going home ‘at the end of term’ or ‘not at all’ would be any easier for him to comprehend and, possibly, could be even more difficult. I would suggest, from past evidence, that the frequency of the transition from home to school and back again in one day was easier for him to understand and cope with. It was some time ago that he was doing this (I believe he discontinued attendance at his mainstream day school in July 2009) but he seemed to have no difficulty with the daily routine of attending school and returning home in the afternoons.

As O is likely to be placed in care, and so will not be going back to his parents’ home every weekend, it is probable that this transition will be very hard for him initially as he will not understand the reasons for the change. I cannot make any judgement on the care home that you have specified as I have no detailed knowledge of it. The care situation should be judged separately to the educational placement. The journey will be an important issue. The length of the journey is not dissimilar to some pupils at Queensmill School. I cannot comment on how he will take to the length of journey every day as I have no evidence in this respect. It is important for pupils with autism to take into consideration issues like consistency and punctuality of journey arrangements.

If O is to transition to and from the care placement to school every day, then he would benefit from the normal ‘autistic specific’ type support that [Mrs] Ragan (Head Teacher of Queensmill School) and her staff are very well versed in.”

The head teacher of Queensmill School has given consideration to the points made by Dr Hindley and Professor Baird but considers that there is nothing in what she has seen of or read or heard about O that appears significantly different from other pupils at Queensmill. She said in her letter of 6 July 2011 that she believes that if O were to attend the school, “he will become more manageable, to the point where a return to the family home is a real possibility”. The letter records that in Mrs Ragan’s time, there has never been a ‘failed’ placement where the school has had to exclude a child or otherwise accept that it cannot meet his needs. It continues:

“I remain very firmly of the view that O is typical of the students that we have at Queensmill and that there are in fact students whose needs and impairments are even greater. I still believe we will be able to meet his needs and make a lot of progress with him. I have already given you my views about the issue of him travelling to and from a separate residential setting each day and I remain of the view that the suggestion he will not be able to cope with this is simply not borne out by the experience we have of our students, all of whom do this (with our help and support). When I observed O at [his present school] it was a Monday morning which according to the school was his most difficult time of the week due to transitioning from home, and he was able to settle with less effort from the staff than many of my students in Queensmill, who need even more care and specialist devised programmes.”

Social services’ view is based on many factors which are set out in the documentation in a number of places including the statements of Mr Odell and the decision letter of 13 May 2011. The local authority must be guided by the Children Act Guidance and relevant statutory provisions. So, for example, in determining the most appropriate placement for a child, the local authority must reflect the principle that, whenever possible, children should be brought up in their families and communities if they cannot remain with their parents, and the aim must be to ensure that children are able to return to their parents.

Under section 20(6) the local authority has a duty to ascertain and give due consideration to O’s views. O is unable to communicate his thoughts about where he will live and go to school but the local authority has taken into account that he has a bond with his family and has been observed to have a clear desire for social interactions with them, which he seeks out.

In his first witness statement, in which he proposed the 38 weeks a year/Sybil Elgar plan, Mr Odell said that a local residential placement together with education at Queensmill School would allow O to maintain the closest possible links to his family and provide them with the opportunity to develop and benefit from a local network of support through the school. Amongst the other advantages he identified was that this arrangement allowed for the possibility that O may be able to live at home in the future.

The letter of 13 May 2011 deals at some length with the issues for O but it is not necessary to set out all the detail of its contents here. It expressly recognises the difficulty that transitions cause for O and sets out ways in which to manage the daily journeys for him, including through routine and consistency of the people involved, the times of the journey, cars and route. It also deals with the concerns voiced by O’s mother about the proposal to use the Croydon home. It points out that O will be able to have speech and language therapy, occupational therapy etc. at Queensmill School and would continue to have easier and more consistent access to his long standing medical team in Central London from Croydon than from Dorset. Of Purbeck View, it says:

“The biggest concern about Purbeck View from the local authority is its distance from O’s family home. O is aware of his family and has a close bond with them. In order to settle him in it was suggested that he should not go home for several weeks if not months until it was felt that going home would not have a disruptive effect on O. There is a family room at Purbeck View and short on site visits could take place there. However due to the distance of the school from home (123 miles) and the ages of O’s brothers the potential for regular short visits by the family to the school is minimal.

According to the Children Act 1989, and April 2011 government guidance, when carrying out its duty in respect of Looked After Children the local authority has a responsibility to promote contact with the child’s birth family where it is in the child’s best interests to do so.

Additionally the local authority should retain local links wherever possible. The local authority would not be discharging these responsibilities should it recommend a placement at Purbeck View, when there is, in its view, a viable alternative which is closer to home.”

The letter expresses the local authority’s expectation that once O is provided with a consistent approach, his challenging behaviours will decrease and become more manageable, and its hope that O may return to his parents’ care in future.

Mr Odell’s third witness statement follows the recent reports of Ms Dove, and of Dr Hindley and Professor Baird, which the local authority has considered but which have not led it to change its view as to what is in O’s best interests.

It seems to me that the difference of opinion between the local authority on the one hand and O’s parents and their advisors on the other as to what is required to meet O’s needs results from a different weighting of the various factors that must be considered. O’s parents give priority to avoiding anything other than the inevitable moves each day between living accommodation and educational provision and to the complete integration of care that can occur when a single establishment is responsible for a child. The local authority gives priority to maintaining O’s links with his locality and reducing the obstacles (non-existent in the family’s view) that geography might present to contact with his family. It does this not only in order to meet his needs at the present time but also with an eye to his long term needs. The expectation is that O will improve under the expert care of Queensmill School and the hope is that this will mean that he can return home. This is not an unrealistic aspiration. If it were to materialise, there would be an obvious benefit to O in being able to live for more time at home whilst maintaining the consistency of attending the same school. It would be a great deal more difficult and disruptive for him to return to live at home following a placement at Purbeck View.

In the light of all the evidence, I am not persuaded that it can be said that Purbeck View is the only placement currently available that will meet O’s needs. The local authority’s proposal is another way of meeting his needs. Neither proposal can be rejected as misguided, impractical or inappropriate. The choice between the two proposals depends on how one weights the various factors.

It was argued on behalf of O that the refusal to place him at Purbeck View was an unlawful interference with his Article 8 rights.

Although it is so familiar, it may still be helpful to set out the terms of Article 8 here. It provides:

“(1)

Everyone has a right to respect for his private and family life, his home and correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Where a local authority simply chooses one way of meeting a child’s needs rather than another, it cannot be said to have interfered with the exercise by the child or the parents of their right to respect for their private or family life. There is no breach of Article 8.

Mr Wise invited attention to R v Ealing LBC ex parte Parkinson (1995) 29 HLR 179 in which Laws J (as he was then) recognised that there can be cases “where the public law court is able to conclude that only one result was legally open to the body in question, and in that case an order for mandamus may issue to require that result to be arrived at”. Mr Wise submitted that this is such a case and that Blair J should have granted a mandatory order requiring the local authority to place O at Purbeck View. The judge did not grant the order sought because he did not consider that an immediate placement at Purbeck View was the only result legally open to the local authority. Having rethought matters, the local authority has devised an alternative plan which can also meet O’s needs. Hindsight accordingly shows that the judge was correct in his conclusion that this was not a proper case for a mandatory order.

At a relatively late stage, Mr Wise added a further ground to his grounds of appeal, namely that section 1(1) Children Act 1989 (“section 1(1)”) required this court (and presumably also Blair J) to have O’s welfare as its paramount consideration in determining the issues in the case.

Section 1(1) says:

“(1)

When a court determines any question with respect to –

(a)

the upbringing of a child; or

(b)

the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.”

These are not proceedings under the Children Act but that is not fatal to Mr Wise’s argument. Section 1(1) is not limited in its terms to decisions made under the Act and he produced an extract from White, Carr and Lowe (2008) The Children Act in Practice 4^th edition which, at paragraph 2.7, states the proposition that the subsection is of general application and cites a number of authorities which demonstrate its application outside the confines of the Children Act.

Mr Wise submitted that section 1 applied because the court was determining a question with respect to O’s upbringing. I have no difficulty in accepting that the arrangements for O’s living accommodation and school are within the term “upbringing”. However, it is not enough to establish that. It must be established that the court is determining a question with respect to O’s upbringing.

Mr Wise correctly drew our attention to Re M (A Minor)(Secure Accommodation) [1995] 3 All ER 407 which he acknowledged undermines his argument. Butler-Sloss LJ there held that section 1(1) did not apply when the court was determining an application for secure accommodation under section 25 of the Children Act as the provisions of section 1 were either irrelevant to or inconsistent with section 25. She also made the more general observation that in her judgment section 1 was not designed to be applied to Part III of the Children Act. Mr Wise submits that that observation is plainly wrong, not least because there is nothing in the wording of section 1 to restrict its operation in that way.

I do not find Butler-Sloss LJ’s observation at all surprising given that, with the sole exception of section 25 with which she dealt specifically, Part III is about local authority responsibilities and decisions rather than court decisions. Section 1 cannot therefore apply to it directly. Re M was, however, a decision in proceedings under the Children Act and I doubt very much that Butler Sloss LJ had in mind, or intended her comments to apply to, judicial review proceedings involving a challenge to a decision of a local authority under Part III. Mr Wise’s argument about the applicability of section 1 does fail, in my judgment but not, I think, by a fell blow from Re M.

What is fatal to the argument, in my view, is that these are judicial review proceedings in which the court is charged not with determining a question with respect to O’s upbringing but rather a question with respect to the activities of the local authority, albeit that it was necessary to consider O’s best interests as part of the judicial review process. In R (on the application of P) v Essex County Council and Basildon County Council (supra), Munby J made this clear:

“32.

What the claimants here seek to challenge are decisions taken by the County Council in pursuance of the statutory powers and duties conferred on it by Part III of the Act. So I am here concerned with an area of decision making where Parliament has chosen to confer the relevant power on the County Council: not on the court or anyone else. It follows that we are here in the realm of public law, not private law. It likewise follows that the primary decision maker is the County Council and not the court. The court’s function in this type of dispute is essentially one of review – review of the County Council’s decision, whatever it may be – rather than of primary decision making. It is not the function of the court itself to come to a decision on the merits. The court is not concerned to come to its own assessment of what is in these children’s best interests. The court is concerned only to review the County Council’s decisions, and that is not a review of the merits of the County Council’s decisions but a review by reference to public law criteria: see A v A Health Authority, In re J (A Child S), R (S) v SSHD [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, and CF v SSHD [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at paras [20]-[32]. Just as I pointed out in R (A,B,X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, at para [161], that it was the function of the local authority and not the court to make and draw up the assessments that were there in issue, so too in the present case it is for the County Council and not the court to make the initial and core assessments of these children.

33.

Now this has two important corollaries. Although I am, in a sense, concerned with the future welfare of very vulnerable children, I am not exercising a ‘best interests’ or ‘welfare’ jurisdiction, nor is it any part of my functions to monitor, regulate or police the performance by the County Council of its statutory functions on a continuing basis. A judge of the Family Division exercising the wardship jurisdiction has a continuing responsibility for the day to day life and welfare of the ward, exemplified by the principle that no important or major step in the life of a ward of court can be taken without the prior consent of the court: see Kelly v BBC [2001] Fam 59 at p 75. The function of the Administrative Court is quite different: it is, as it is put in the CPR Part 54.1(2)(a), to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function. In other words, the Administrative Court exists to adjudicate upon specific challenges to discrete decisions…..”

Mr Greatorex also drew to our notice in this regard a passage from R (A) v LB Croydon [2009] UKSC 8. The issue there was whether the claimants were children in need within section 20(1) Children Act 1989 or adults. The local authorities proceeded on the basis that they were adults and the claimants challenged those decisions by judicial review. The Supreme Court held that the question of whether a child was in need was for the local authority to determine but the question of whether a person was or was not a child was a question for the court to determine on the evidence available. Baroness Hale explained the difference between the two types of question thus:

“[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.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer…….”

She concluded her remarks on this question with this comment:

“[33]….If the other members of the court agree with my approach to the determination of age, it does not mean that all the other judgments involved in the decision whether or not to provide services to children or to other client groups must be subject to determination by the courts. They remain governed by conventional principles.”

Conventional judicial review principles therefore continue to apply in relation to the evaluative questions left to the local authority which include the issues in this case. Accordingly, whilst the interests of O were far from irrelevant to Blair J’s decision and to our determination of the appeal and of the issues in relation to the local authority’s May decision, these are not proceedings in which either court is determining a question with respect to his upbringing and section 1(1) does not apply.

No valid grounds of appeal or of judicial review having been established, I would therefore dismiss O’s appeal.

The local authority filed its notice of appeal shortly after the hearing in the Administrative Court and before it made its May decision. In many ways the making of the new decision, which recognised and took account of some of the criticisms made of the local authority in Blair J’s decision, rendered the proposed appeal otiose. It has become all the more academic in the light of the failure of O’s appeal.

The local authority would still like to pursue two particular matters, namely the judge’s acceptance (see §66 of the judgment) of O’s submission that “the profoundness of the impact of the decision requires a degree of intensity of review” and his finding (§71)that the local authority gave too much weight to the decision of the First Tier Tribunal of 5 February 2010 on the parents’ appeal against O’s special educational needs statement. Mr Greatorex said in his oral submissions that the local authority does not ask for any particular relief in this respect but “the errors should not remain uncorrected by this court”.

I do not see any purpose in this court now considering the question of Blair J’s approach to the weight given in the local authority’s March decision to the conclusions of the First Tier Tribunal. Blair J was not laying down any principles in what he said about this issue in his judgment. He was not saying that the Tribunal decision was irrelevant. He was merely critical of the degree of influence that he considered the Tribunal decision had had in the local authority’s thinking to the point that “it came close …to being a determinative factor” in the decision (see §70 of the judgment). The lives of children move quickly and their needs change continuously. Inevitably, this means that decisions about their needs have to be revisited. Sometimes they will remain valid, sometimes they will continue to have some influence whilst not being determinative, sometimes they will no longer be appropriate at all. It is therefore a matter for a local authority to attribute appropriate weight to a decision such as that of the Tribunal, bearing in mind the nature of the decision that the Tribunal was required to make (which, as here, may not be the same as that which the local authority is making) and any changes of circumstances since then. Blair J thought this local authority misjudged that to the extent that the error played a part in invalidating its decision. Whilst not accepting this criticism, the local authority took it into account in arriving at its May decision and addressed the matter rather differently, reaching a conclusion which I recognise, for the reasons set out above, as a valid decision in O’s interests.

The local authority wishes to pursue the issue of the degree of intensity of the judicial review because it is anxious that Blair J’s approach may set a precedent. He said that he was adopting the approach of Langstaff J in The Queen on the Application of L v Leeds City Council (supra). Mr Greatorex submitted that the ordinary judicial review approach should be applied in cases such as this, that there is no sliding scale of degrees of scrutiny, and that Langstaff J was not intending to say that there was. He also questioned what the concept of “a degree of intensity of review” actually means in practice and how it could be applied consistently or at all.

In fact, it seems to me that it is O rather than the local authority who has most interest in this issue. It cannot affect the outcome of the appeal for the local authority but it might, in theory, have more significance for O. Having failed to establish that section 1(1) applies to make O’s welfare paramount, Mr Wise would no doubt wish to revert to the argument that the court must approach the matter with a greater than usual intensity or, putting it in the alternative way that Mr Broach appears to have put it in the court below, must not set the standard of unreasonableness or irrationality too high (see §33).

In his speaking note, Mr Wise, supporting the judge’s approach, said “it is now trite law as routinely applied by the Administrative Court that the more sensitive the case the closer the scrutiny that the Court will give to the decision” and he described this as a “well-recognised principle”. However, he did not cite any authority in support of these propositions.

In short, this potentially rather difficult question was not fully explored in argument. As I am quite satisfied that in the event the outcome of this case does not depend on any narrow determination as to the degree of scrutiny that the court applies, I would not be minded to grant permission for the local authority to advance an appeal on this ground. If there is to be an argument revolving around what was said by Blair J in this case and Langstaff J in the Leeds case, it must await another day in a case in which the authorities are more fully explored than they were before us.

The other grounds of appeal included in the local authority’s notice of appeal are of academic interest only. It follows that I would refuse permission for the local authority to pursue its appeal.

For the reasons I have set out, I would dismiss O’s appeal and refuse permission for the local authority to appeal. In so far as we have been engaged in judicial review of the local authority’s May decision, I would also dismiss O’s application in that regard. It would follow that the May decision would stand.