ET, R (on the application of) v London Borough of Islington & Anor

MR JUSTICE CRANSTON:

The claimants are three sisters aged 14, 12 and 6 years, who live with their maternal grandmother, JT, in Islington. Their mother, KT, is 31 years old and apparently has a history of substance abuse. She had a relationship with MB, now aged 26, who has a history of sexual offending against children. The claimants had lived with their mother in Colchester, Essex until 5 April this year when Essex County Council placed them with JT, in Islington, pursuant to section 20 of the Children Act 1989. There are ongoing Family Court proceedings about the childrens' future. JT's primary concern is for her granddaughters' safety. She is strongly of the view that they are at risk from sexual predators, in particular MB and his associates. As a consequence, she will not permit the children to leave her house alone and she does not permit them to attend school in Islington. The children have not been to school since they moved to Islington in April, although since late September they have received home tuition through the council. JT wishes to leave Islington to move to Hertfordshire. She desires the children to resume their education and have social interaction with other young people. She believes that her daughter is still in contact with MB.

MB's sexual offending goes back over a decade. There was an allegation in 2000 of indecent assault in a park against a 9-year-old boy. That did not proceed to court because of the victim's mother's concerns. In 2001, MB was convicted of four offences against a boy of 7 years old. At that time MB was 14 years old. As a result of the conviction MB was given a supervision order for 12 months and was placed on the Sex Offenders Register for two and a half years. In 2004, MB was before the Crown Court for indecent assault against a boy of 13 years old. He was acquitted. Between the years of 2002 and 2004, sexual offending was alleged against MB in relation to the children of SL. At the time, SL was 36 years old, whereas MB was 16 years old. SL had nine children. Not surprisingly, those children were subsequently taken into care. MB was arrested for the offences but the Crown Prosecution Service did not proceed. It seems that this was because of the psychological damage experienced by SL's children and their inability to give evidence acceptable in a court.

Finally, in 2012 MB was convicted of sexual assault of a boy of 10. He was the son of a family friend. MB had stayed with the family on various occasions and had reappeared on the night the offences were perpetrated. Following a trial MB was sentenced to 18 months' imprisonment and was placed on the Sex Offenders Register for 10 years. In addition to the sentence of imprisonment, the judge imposed a Sexual Offences Prevention Order (the "SOPO"). This contains a number of prohibitions in relation to MB's presence in a house or a building where someone under 16 is also present without supervision. There are also clauses of the SOPO prohibiting contact with children under 16 years of age except such contact as is inevitable in daily life. He cannot communicate with young people, touch them or be employed so as to come into contact with them.

The proceedings in this case were issued on behalf of the claimants in mid July. Prior to that there had been some understandable confusion as to whether the defendant council or Essex County Council was responsible for them. The defendant council conducted an initial assessment of the claimants some 10 days after these proceedings were begun. These assessments concluded that there should be no concern about the physical environment within JT's home or about JT's care of the children. However, the assessments continued, despite JT's good intentions to ensure that the children were safe, there was a problem about their lack of access to education and social interaction. Thus there was a concern that overall their needs were not being fully met.

In mid September, Detective Sergeant Alistair Watson prepared a statement under section 9 of the Criminal Justice Act 1967. He is attached to the Public Protection Unit at Islington police station. In his statement DS Watson categorised MB's risk as very high. In the light of MB's offending history DS Watson said that he believed that MB posed a significant risk of sexual harm to children and that MB's record demonstrated that he systematically abused children. MB seemed not only to abuse children within relationships he had formed but also, as his recent conviction demonstrated, the children of his friends. In the index offence, DS Watson continued, the friend had not had recent contact with MB and MB had appeared out of the blue. That highlighted that MB was capable of grooming victims but also that he was capable of spontaneous offending. MB's history clearly indicated that he developed relationships with a mother in order to gain access to her children. There was a clear concern for the claimants based on MB's previous relationship with their mother and his sexual offending history:

In late September, the council produced further assessments. There was, firstly, an educational needs assessment of each of the claimants. It recommended that all three should return to mainstream education as soon as possible. Secondly, there was a core assessment of each of the claimants containing a narrative of their circumstances and recording JT's concern for their safety. Under the heading "Children's Safety" the assessment recorded that MB's mother lived two roads away from JT, and MB's sister and brother lived in the same locality. One of the claimants had apparently been introduced to one of MB's associates who was believed to be local. The assessment continued that although JT's fears were real, they were having a detrimental effect on the girls' development, particularly their social development. The world was not without risks and it was JT's responsibility as the girls' primary carer to manage those risks with outside support.

Thirdly, there was a section 47 assessment of risk. That was prepared by Rashida Forbes, a social worker with Islington. In preparing this assessment she had spoken to MB's probation officer. There was no reference to any risk from MB's associates. The assessment said that it was suspected that upon MB's release the risk would increase to children under the age of 16. It was possible for those risks to be managed with safeguards, which could be put in place in partnership with the family and other agencies. A safety plan could be devised with JT and all the children. The children were safe in their current circumstances due to JT's care and the fact that there was no evidence that they had been targeted. With respect to risk of sexual abuse, Ms Forbes' assessment was that there would be an increase in risk if the mother resumed her relationship with MB. If not, and MB was restricted from entering Islington, the risk of sexual abuse was low:

After the assessments MB's licence conditions became known. They changed the situation. They were that MB must reside at approved premises during the licence period and be subject to curfew. In addition, MB was not to enter certain postcode areas, including the postcode N19 where JT resides. However, the conditions are of limited duration. When the matter came before the court last week the council accepted that its risk assessment would have to be revamped in the light of the new information. Consequently, last Friday, a further risk assessment was prepared by Rashida Forbes and counter-signed by Martin Tait, her deputy team manager. That is the 26 October assessment.

The 26 October assessment begins by asserting that it was not often within the remit of the council's social workers to assess and comment on levels of criminal risk posed by members of the public to children unrelated to them:

The risk assessment then identifiedthe inquiries which had been made with various criminal justice and other agencies. First, there had been contact with the Child Abuse Investigation Team ("CAIT"). That team had confirmed that they would have no further involvement since no further crime had been alleged or committed against the claimants. Nonetheless, the CAIT team advised that one further option was for JT, if she felt it necessary, to speak to her solicitor about obtaining an injunction against MB contacting her grandchildren. Secondly, the Multi Agency Public Protection Agency ("MAPPA") had been contacted. It informed the council that MB would be subject to regular MAPPA reviews. Thirdly, the probation officer had informed the council about the recommended licence conditions, to which I have already referred, and confirmed that MB would be entitled to return home after his 12 weeks in approved premises in south London. Fourthly, there was contact with the learning disabilities team because there was some evidence that MB had mild learning disabilities. The Learning Disability Team proffered the opinion that in theory that would not have an impact on MB's understanding and adhering to any restrictions placed on him.

Next, there was contact with the housing team in relation to JT's expressed wish to be rehoused in Hertfordshire. The risk assessment set out the steps which JT might undertake to fulfil her wish to move out of the area. The risk assessment notes, however, that a move from Islington would mean that the postal exclusion area in the licence conditions would no longer apply to MB's movement. In addition, a move would mean that JT would no longer, at least initially, be known to the local community, which was a protective factor in itself.

Finally, there was reference to DS Watson. He had been contacted again following his earlier section 9 statement. He had informed Rashida Forbes, first, that MB was not known to have associates who presented risks to children. Secondly, there was nothing in his history to suggest that the claimants were more at risk than any other children in the Islington area. Thirdly, there was nothing in MB's history to suggest any risk of snatching a child. Fourthly, MB had not been known to seek out children once his relationships with their mother had ended. Fifthly, MB would need to be alone with a child to abuse that child sexually. Sixthly, the SOPO would be proactively monitored, including by surveillance and regular unannounced visits. Seventhly, the SOPO, coupled with the proposed licence conditions, represented the highest level of protection which could be implemented for an offender such as MB. Eighthly, although MB had not been on licence before, he had had bail conditions in the past and he had generally complied with them.

After setting out the results of the information provided by these various agencies, the 26 October risk assessment advanced an overall conclusion. This was that it remained the view of the council that the risks, such as they were, could be managed while the claimants remained in the borough. Even if there were to the likelihood of contact between MB and the claimants, that did not in itself mean that they were at risk of being abused. There were numerous statutory protective measures in place and a child in need plan to complement them. The schools proposed for the children were in close proximity to JT's home. The children needed to return to mainstream school because they were missing out socially. Then at this point the risk assessment said that before the family proceedings drew to a close, JT was "invited" to seek a further exclusion order or injunction via them, if she wished, to provide reassurance and to avoid the children coming into contact with MB:

In summary, the 26 October risk assessment set out its conclusion that the risk was deemed to be manageable because of some 16 specific points:

The general duty imposed on local authorities in the Children Act 1989 is contained in section 17, which is to safeguard and promote the welfare of the children within their area who are in need by providing the range and level of services appropriate to their needs. Section 31 addresses care and supervision orders. It provides for the court to make an order on the application of a local authority taking a child into care or placing it under supervision.

Under section 31(2), the local authority must be satisfied (a) that the child is suffering, or likely to suffer, significant harm, and (b) that the harm, or the likelihood of harm, is attributable to (i) the care given, or was likely to be given to that child, if the order were not made, not being what it would be reasonable to expect a parent to give to it. Section 31(2)(ii) is not relevant.

Section 47 contains the local authority's duty to investigate a threat of harm. Section 47(1) states:

Finally, I turn to the statutory provisions regarding the duty to educate. Section 19 of the Education Act 1996 imposes a requirement on a local education authority tomake arrangements to provide suitable education for children not in school.

There is statutory guidance in relation to the various statutory duties. As the title suggests, "Framework for the Assessment of Children in Need and their Families", published in 2000, contains guidance for delivering services to children in need pursuant to the Children Act 1989. It underlines that an assessment is not an end in itself but a process which will lead to an improvement in the well-being of, or outcomes for, a child or young person. The conclusion of any assessment, reads the guidance, should result in an analysis of the needs of the child, and the parenting capacity to respond appropriately, identify any necessary intervention and contain a realistic plan of action, including the services to be provided.

The document "Working together to Safeguard Children", 2010, is statutory guidance setting out how organisations and individuals should work together to safeguard and promote the welfare of children and young people. Chapter 5 addresses what should happen if someone has concerns about the safety and welfare of a child, including those living away from home, in particular, concerns that a child may be suffering or likely to suffer significant harm. Paragraph 5.5 lays down the principle that work to safeguard and promote the welfare of children should be child centered and an assessment should involve obtaining relevant information from professionals and others in contact with the child and family. The guidance says that the focus of the initial section 47 assessment should be both on the safety and the welfare of the child. Chapter 6 provides supplementary guidance with respect to particularly vulnerable groups, including sexually exploited children. There is special sexual exploitation guidance. Attention is drawn in particular to the threat of grooming of children for sexual purposes.

In Secretary of State For Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, Lord Diplock restated the well-known statement of principle of Wednesbury unreasonableness enunciated by Lord Greene at [1948] 1 KB 223 at 229. In addition, Lord Diplock said this:

That enunciation of principle was applied by the Court of Appeal in R(Ealing Borough Council) v ex parte C (a minor), 30 November 1999, 2003 CCLR 122, involving an application for rehousing by a disabled child. The Court of Appeal allowed the child's appeal. It held that the council in that case had failed to address the important practical problems faced by the child when considering his application for rehousing. In the course of his judgment, Judge LJ (as he then was) held that the council had not asked itself the right question and had not taken reasonable steps to acquaint itself with the relevant information about the difficulties which both the child and the family had to surmount in their current housing.

In community care cases the Wednesbury test is normally applicable (see R(Ireneschild) v Lambeth LBC [2007] EWCA Civ 234, (2007) 10 CCLR 234 and Pulhofer v Hillingdon LBC [1986] AC 484). R(L) v Leeds City Council [2010] EWHC 3324 was a community care case involving the needs of a 14-year-old girl suffering from cystic fibrosis. The council had refused a request to provide a treatment room in her home. Langstaff J held that the intensity of review in that case, given the profoundness of the impact, would be judged objectively and would be heightened.

That approach was recently adopted by the Supreme Court in R(KM) v Cambridgeshire County Council, National Autistic Society and others intervening [2012] UKSC 23 [2012] PTSR 1189. That was a community care case where the issues were the local authority's method of calculating the claimant's personal budget under the Chronically Sick and Disabled Persons Act 1970 and whether the council's reasoning in reaching its conclusion was sound. In the course of the judgment, Lord Wilson (with whom Lords Phillips, Walker, Brown, Kerr and Dyson agreed) said this:

In my view, the intensity of Wednesbury review is also heightened under the Children Act 1989 in circumstances like the present, where the consequences of the council falling into error is the possible sexual abuse of children and young people. The profundity of the impact, to use that phrase, is equivalent, indeed potentially greater, than in community care cases such as R(KM) v Cambridgeshire County Council. In my view, a notion of heightened review does not undermine the Wednesbury test. The court is simply saying that the public authority must exercise its discretion with a due appreciation of its responsibilities. In effect, given the context, the public authority must tread more carefully than usual. Heightened review calibrates Wednesbury unreasonableness to the matter at issue.

In his cogent submissions on the claimant's behalf, Mr Wise QC submitted that the 26 October risk assessment was not lawful given the statutory obligations imposed on the council in relation to both a section 17 assessment and the section 47 inquiries with regard to the risk which MB and his associates posed to the claimants. In his submission, firstly, the council had applied the wrong test. It had focused on the harm attributable to care or parenting, a section 31 test, rather than the test mandated by section 47. That erroneous focus, evident in the earlier July assessment, infected the 26 October assessment.

Coupled with the adoption of the incorrect test was the flaw that the council did not exercise its own judgment, evident in the passage in the introductory paragraphs of the assessment, that it was the role of the probation and police services to assess MB's risk of offending. What was demanded of the council was an investigation into the potentially significant risk to which these children might be exposed. The guidance demanded that that be child centered, contain a carefully planned response and involve the collection of relevant information from relevant professionals, including the police. In Mr Wise's submission, the council misdirected itself in restricting the assessment of the risk of significant harm to that attributable to care or parenting. Thus the council had failed to carry out the assessment requirement by law.

Secondly, Mr Wise QC contended that the council did not ask itself obvious questions. In particular, it did not explore what he contended was a turnaround in DS Watson's approach to the risk posed to the claimants. The risks which DS Watson had identified in his section 9 statement were, for example, that no child with which MB had had contact could be judged to be safe. The views expressed in late October and contained in Rashida Forbes' 26 October assessment were clearly inconsistent with the earlier statement, yet the council had failed to ask itself obvious questions as to why there had been this apparent change. In addition, DS Watson on the earlier occasion had expressed a view that MB had been capable of spontaneous offending, yet the obvious question as to why he now adopted a different view had not been explored or explained. Moreover, there was no analysis of MB's modus operandi in sexual abuse and how any continuing relationship with the mother might expose these claimants to risk. What DS Watson was recorded as saying in the 26 October assessment and its inconsistencies with the earlier section 9 statement were not analysed properly notwithstanding the profound consequences which could flow.

Thirdly, Mr Wise QC focused his fire on the statement in the 26 October assessment that an application by JT for an injunction was a "necessary" addition to the child in need plan. Given that it was incumbent on the council to explore what intervention was necessary to meet the risk in the type of realistic plan of action which the framework guidance required. If it was necessary to take measures to avoid the children coming into contact with MB, it was unlawful to place the burden of dealing with that risk on JT, especially when it was far from clear that she was able to address the problem.

Finally, Mr Wise identified flaws in the summary. In particular, at subparagraph (i), MB was assumed historically not to return to families once his relationships had ended. That was a material error given what DS Watson had said in his section 9 statement. There was also an error in subparagraph (n), that there was no evidence that the children's mother was still in a relationship with MB, given the very clear evidence of KT as to the continuation of that relationship. Thirdly, there was the error at subparagraph (p), that the children were considered by the police to be at no more risk than any other child in Islington. Whatever that might mean, that certainly did not accord with what, for example, DS Watson had said in his section 9 statement. These errors of fact were material in the overall assessment reached in the 26 October assessment. They meant that the council had reached a conclusion which was fundamentally flawed.

In considering the lawfulness of the council's action, it is necessary, as I have explained, to apply a heightened intensity of review. Adopting that approach, I have nonetheless concluded that the council cannot be said to be in error with its 26 October assessment. That assessment is not perfect but the flaws are not such as to demand the intervention of this court.

First, I do not accept that the assessment adopts the wrong test by identifying the harm attributable to care and parenting. In alluding to the section 31 Children Act 1989 test, Ms Forbes is simply asserting that this is what the council's social workers usually do. Assessing criminal risk -- in this case the risk of sexual offending -- is not something central to their work. That is usually the task of the criminal justice agencies. As described earlier in the judgment, Ms Forbes consulted a wide range of agencies, the CAIT, the MAPPA, and the probation service, and she also inquired of the housing authorities and those responsible for learning disabilities. She drew on their advice. Having consulted widely, it is clear from the phraseology of the opening paragraphs of the risk assessment, and the conclusion drawn, that it contains the council's considered judgment of the risk posed to these claimants, in particular from MB, and what should be done to address it.

In my view, it cannot be said that the analysis and conclusion are Wednesbury unreasonable, even applying a heightened intensity of review. As I have said, there are flaws. It is evident that DS Watson changed his evaluation from his section 9 statement. His up-to-date account, as set out in the 26 October assessment, raised a number of obvious questions. Perhaps the council's risk assessment could have contained a fuller explanation as to the reasons for the turnaround. However, it should not be forgotten that it is the council's assessment, not DS Watson's, which is what the legislation requires. Indeed, that is what the 26 October risk assessments amounts to: the council's evaluation of risk, having taken into account DS Watson's views, along with those of a range of other agencies.

Secondly, there is the reference to an application by JT for an injunction against MB in private family proceedings being a "necessary" addition to the child in need plan. That was a suggestion, as I have explained, from the CAIT team. Read in context, that remark seems to me to be addressed to JT's perception of risks, rather the council's own assessment. The phraseology is certainly infelicitous but in my view does not flaw the assessment.

Finally, there are the factual errors in the conclusion. I am not sure that all three points which Mr Wise QC alighted on are incorrect. For example, JT's belief in a continuing relationship with MB does not accord with the recent evidence set out in the assessment. In any event, there are many bases to the conclusion in the assessment which are accepted on all sides as being accurate.

Overall, I cannot conclude that the assessment of risk, and the means calculated to address it, are flawed notwithstanding the heightened intensity review which I have held I must apply in the circumstances of this case. I dismiss the claim.

MR MCGUIRE: I am obliged. In the circumstances, the order I would ask for is, first, that the claim be dismissed. Secondly, in normal circumstances I would have been content for there to be no order as to costs for the entire proceedings but given there was an adverse costs order on the last occasion, the order I would ask for is in two parts. First, that the claimant is to pay the defendant's costs, not to be enforced prior to the assessment of what sum is to be reasonable and, next, that any costs order in favour of the claimant be set off against this older of the defendant's. I am simply concerned to avoid Islington having to pay costs to the claimant when it has won.

MR JUSTICE CRANSTON: I held that you had to pay costs last time but what you are saying is that you want costs this time but then to offset the two, is that right?

MR MCGUIRE: What I would do is ask for the costs of the claim and the effect of that would be in reality that we would quickly come to the position, I hope, that no order as to costs is the practical answer here.

MR JUSTICE CRANSTON: Mr Wise?

MR WISE: Your Lordship ruled, I recall, on the last occasion that the costs order was made against the local authority for very good reason, that being that they came to court unprepared and asked the court for, essentially, more time while they completed the 26 October assessment that your Lordship has just been dealing with in today's judgment. There were good reasons for the costs order on the last occasion and that should stand.

MR JUSTICE CRANSTON: I am not changing that.

MR WISE: I am obliged for that. The effect of my learned friend's application, however, is to undermine that order.

MR JUSTICE CRANSTON: No, he is simply saying, I think, that you lost today, therefore he should get the costs of today.

MR WISE: Our submission is that the appropriate order for today is that the costs subsequent to 23 October be borne by the claimants but not to be enforced the without the leave of the court. That would be the usual order.

MR JUSTICE CRANSTON: That is effectively what you are saying.

MR MCGUIRE: That is essentially what I am saying but what I simply asking for in reality is a set off.

MR JUSTICE CRANSTON: I am not interested in the reality. Mr Wise obtained costs last time, you get them this time.

MR WISE: But I ask that the defendant's costs are not to be enforced without leave of the court, which is the usual order where there is public funding and also for an order for the assessment of my client's legal aided costs.

MR JUSTICE CRANSTON: Of course.

MR MCGUIRE: I do not oppose that. There is just one matter. This could only be justified on the basis of the risk to the children. It is a matter of concern for Islington as to whether naming it would be a means by which people could identify these children and therefore submits that there should be known as a local authority.

MR JUSTICE CRANSTON: Mr Wise, what do you say about that?

MR WISE: We are neutral on that issue, my Lord. Clear instructions were taken before we came into court today. We are not particularly concerned that the children would be identifiable by the identification of Islington, which of course is my client's primary interest in this matter.

MR JUSTICE CRANSTON: I think in that case we will leave Islington there.

MR WISE: My Lord, we do make an application for permission to appeal. We are very grateful for your Lordship's comments with respect to the approach of the court in respect of heightened scrutiny but we would say, however, that the application of that heightened scrutiny on the facts of this case is something that Court of Appeal should have a further look at. There are a number of issues in the judgment, plainly of detail, which are related to the facts of the case which one would not normally exercise the Court of Appeal with. However, when one looks at the approach in the round there is an important point for the Court of Appeal in that whether, having adopted a heightened approach, the global approach that your Lordship has taken in this court is an appropriate way forward in cases such as this. So in those circumstances we would say that this is a proper case for further consideration by the Appeal Court and we would ask your Lordship to grant permission.

MR JUSTICE CRANSTON: Mr Wise, I take the view that these cases are very fact sensitive. This was a fact sensitive case decided on the facts. The issue of the test is for another day. You will have to go elsewhere. Anything more?

MR MCGUIRE: Nothing more.

MR JUSTICE CRANSTON: Thank you very much.