McC (An Infant), R (on the application of) v Gloucester Primary Care Trust & Anor

J U D G M E N T

Thursday, 16th October 2003

1. MR JUSTICE WALL: These proceedings for judicial review concern a young boy called Dennis Tristan McC who is severely disabled and suffers from cerebral palsy. He therefore has very substantial needs and those needs have at all material times included the provision of physiotherapy and occupational therapy. He does, of course, also have a Statement of Special Educational Needs. There has been an ongoing dispute between Dennis and his father, as his next friend, and the Local Authority as to the precise nature and extent of the provision which should be made. The disagreement underlying that proposition is demonstrated by a series of applications to the Court, beginning in May 2002 when an application was made to quash the latest Statement of Special Educational Needs because of the failure to make adequate provision for physiotherapy. That resulted in permission being granted by Mr Justice Harrison on 18th July and an interim order, followed by further applications alleging failure to comply.

2. A Tomlin Order was made by Mr George Bartlett QC sitting as a deputy judge on 1st October staying the proceedings on terms as to the provision of relief. However, the matter again came back before Mr Justice Maurice Kay in November 2002 and before Mr Justice Elias on 14th January. Once again, a Consent Order was made.

3. The latest round of negotiation has resulted in a very carefully drafted schedule as to the relief which is to be provided, including a detailed appendix dealing with physiotherapeutic management needs. I have also been shown also an amended Statement of Special Educational Needs expressing the hope that Tristan will go to an organisation called the Star Centre which, if it accepts him and he is able to get in, will fully meet all his needs, it being a very specialist facility.

4. Those terms, which have clearly been carefully negotiated over a period of time, form a schedule to the Order that I am invited to make which will stay the proceedings upon the revised terms of settlement set out in the Schedule. It is agreed that there needs to be a cut-off point for those provisions and the cut-off point agreed is 31st July next year. There is, of course, liberty to apply for the purposes of implementing the terms set out in the Schedule. One point in the Order which has caused difficulty is the proposed provision that proceedings will stand dismissed on the 31st July 2004 unless prior to that date an application has been made for earlier dismissal. I am told that the proposition originated from the Claimant's side, and the Claimant today has no difficulty today with it, provided the words "by consent" are put into the phrase, "an application has been made for earlier dismissal."

5. For the Claimant, Mr Fletcher makes the strong and straightforward point that this is a settlement and it is designed to legislate for this disabled child's support up until 31st July of next year. If things go wrong there is, of course, liberty to apply built in so that the Court retains an overview and the power to intervene. Therefore, he says, it is wholly consistent with that provision to build in a prospective earlier dismissal date on grounds which are, as yet, unspecified or even unthought of.

6. On the other side, for the Local Authority, Mr Williams submits that the terms of the Schedule go substantially beyond what would necessarily be directed by the Court on the contested application for judicial review and the degree of supervision which the Local Authority is undergoing by agreement is substantially greater than that which the Court might well impose. In those circumstances, he submits, it is unfair to the Local Authority to continue to have the Court, as it were, looking over its shoulder throughout the entire period. The Local Authority should accordingly be at liberty to come to the Court on an earlier occasion, if it deems it appropriate, for the proceedings to be dismissed on the grounds that they have served their purpose.

7. I think in most other fields other than a settlement of proceedings relating to a child I might have some sympathy for Mr Williams' submissions, but I bear in mind here (and I hope I am not being unduly emotive about it because I sit normally as a Family Division judge) that we are dealing with a disabled child and the need to provide for him. There has been a substantial difficulty in the past; proceedings have been necessary, enforcement has on one occasion been threatened.

8. The over-riding consideration, in my view, must be to ensure that the provision which has been agreed continues for the period that has been agreed, namely up until 31st July 2004. In those circumstances, it seems to me entirely appropriate to keep the proceedings in being until that date, unless the parties reach an agreement to the contrary, and unless the parties both agree that the proceedings are no longer necessary and can be dismissed. They can, of course, do that by consent, without formal order of the court. In my judgment, therefore, the more straightforward and sensible course here is to leave the proceedings in being until 31st July 2004 and delete from the Order the words "unless prior to that date an application has been made for earlier dismissal". That gives the message clearly that the proceedings are there as a fall-back, should there be a dispute about the provision provided up until that date. But the deletion of those words does not mean that the parties cannot by agreement apply to dismiss the proceedings earlier, if that is sensible. I do not think there is any disadvantage or prejudice to the Local Authority in having the proceedings remaining in being until 31st July 2004. Provided the terms of the Schedule are implemented, there will be no additional costs incurred. The proceedings will simply be there. I hope very much, and anticipate, that it is the intention of the Local Authority fully to honour its obligations under the Schedule and, providing it does, there will be no need for the proceedings to be used, but the proceedings are there as a fall-back in case there should be a dispute. Equally, they can be disposed of by agreement of the parties, if necessary.

9. So I simply will amend paragraph 4 of the draft so it will now read: "These proceedings shall stand dismissed on the 31st July 2004." The rest is straightforward, is it not, Mr Fletcher? There is no order for costs.

10. MR FLETCHER: Yes, the rest is straightforward.