Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE COBB
Between :
R (DEEQA MOHAMMED) | Claimant |
- and - | |
THE LOCAL SAFEGUARDING CHILDREN’S BOARD FOR ISLINGTON LONDON BOROUGH OF ISLINGTON | Defendant Interested party |
Ian Wise QC (instructed by Hopkin Murray Beskine) for the Claimant
Bryan McGuire QC (instructed by Islington Legal Services) for the Defendant
Christopher Baker (instructed by Islington Legal Services) for the Interested Party
Hearing dates: 12 November 2014
Judgment
The Honourable Mr Justice Cobb:
Introduction & summary
The Claimant, Deeqa Mohammed, is the mother of a young girl, Nawaal, who on 25 June 2013 fell to her death from the 11th storey of a block in the local authority area of the Interested Party, the London Borough of Islington (“LB Islington”); at the time of her death Nawaal was aged 7 years 4 months old. For some years, Nawaal had presented with challenging behaviours on the autistic spectrum, and had for the majority of her life been the subject of assessments, and interventions, by various departments within LB Islington. Specifically, LB Islington Housing Department had been directly involved in considering the Claimant’s eligibility for re-housing.
By application dated 6 June 2014, the Claimant sought a mandatory order by way of judicial review requiring the Defendant to commission a Serious Case Review (“SCR”) into the death of her daughter. She further sought:
An order pursuant to CPR rule 3.1 extending time for the issue of her application;
An order directing that the matter is fit for expedition and such directions and orders as are necessary to ensure that the matter is heard as soon as possible.
The application for permission to apply for judicial review was considered on the papers by Mr Justice Mitting on 26 June 2014, and was refused by him (see [23] below). The application was listed for hearing in August 2014, but then adjourned (for reasons explained at [24-25] below).
The Defendant then sought advice from the National Panel of Independent Experts (“NPIE”) about the issues arising in this claim. On 27 August 2014, and following receipt of that advice, the Defendant informed the Claimant that it would after all conduct an SCR in relation to the death of Nawaal. It invited the Claimant to withdraw the claim; the Claimant declined to do so. The renewed application for permission was listed for hearing on 12 November 2014.
Shortly before the listed hearing date, the Claimant requested a further adjournment, having encountered further difficulties with her public funding; this application to adjourn was placed before me on 10 November. Although not unsympathetic, I declined the application having been informed that a meeting of the Legal Aid Agency Special Controls Review Panel was due to take place that day; I hoped that the legal aid issue would be resolved (one way or another) in time for the hearing. My optimism was, unusually, rewarded. By the time of the hearing on 12 November 2014, the Claimant had the benefit of a full public funding certificate, had instructed leading counsel and was prepared to argue the case.
At the outset of the hearing, leading counsel for the Claimant, Mr Ian Wise QC, indicated that the Claimant wished to amend/refine her claim to substitute for the mandatory order (see [2] above) a declaratory order in these terms:
“a declaration that known or suspected abuse or neglect of a child in Regulation 5(2)(a) of the Local Safeguarding Children Board’s Regulations 2006 includes known or suspected abuse or neglect on the part of a public body”.
This re-formulation of the claim had been presaged in the original grounds of the claim (per §2(ii) of the Claimant’s Grounds) viz:
“Clarification of the law is necessary to ensure that failings including neglect of children on the part of public bodies give rise to a duty to instigate serious case reviews where the child dies or is seriously harmed and there is concern at the way the relevant agencies have worked to safeguard the child.” (my emphasis)
In essence, the Claimant wished to contend that the London Borough of Islington – either through its children’s services, its disabilities’ services and/or housing department – had been responsible for actual or suspected ‘neglect’ of Nawaal. In the circumstances, it was to be argued, the LSCB was required to commission an SCR.
In the circumstances, Mr Wise sought:
Permission to amend his claim to reflect the declaratory relief sought in [6] above;
An order permitting an extension of time for filing her claim;
Permission to apply for judicial review;
The joinder of the Secretary of State for Education, as an Interested Party, and
An expedited hearing.
The Defendant and the Interested Party did not formally oppose the proposed amendment to the claim, but opposed all forms of substantive relief identified in [7(ii)-(v)] above.
Detailed submissions were made by counsel for the parties, and I was guided to the relevant case law. Given the late amendment to the proposed claim, the detail and quality of the submissions, and the significance of the issues raised, I indicated that I would reserve this judgment for a short time.
By this judgment, I set out my reasons for refusing the application for permission to apply for judicial review. No party has requested anonymisation.
Background
For an understanding of this claim, and my decision, it is helpful that I should set out a little relevant factual context.
Nawaal was born in 2006, one of twin girls. In or about October 2009, when Nawaal was about 3 years old, she was assessed as displaying behaviours on the autistic spectrum; she was assessed as a ‘child in need’ pursuant to Part III of the Children Act 1989, and accepted as such by the LB Islington although (so far as I am aware) no professional concern was raised about the Claimant’s care of her daughter. Nawaal attended a special needs school.
At about the time of the said assessment (October 2009) the family moved to a home on the 11th floor of a block in the area of LB Islington.
On numerous occasions in the period between 2010 and 2013, it appears that LB Islington was advised of Nawaal’s lack of safety awareness, her unpredictability, her craving for being outside and for climbing and exploring, and her challenging behaviour. In February 2013, the Claimant’s solicitors threatened LB Islington with judicial review proceedings for its failure to carry out a proper needs assessment for the purposes of her housing application. The various communications from the interested agencies (or at least some of them) are detailed in the Grounds of Claim; I have read those, together with the Claimant’s statement, with care although it is unnecessary for me to rehearse the contents more fully here. It suffices for me to reproduce a communication written by LB Islington on 25 March 2013, in which it was said that:
“Nawaal has no awareness of danger and enjoys climbing and jumping… if the window is open just a crack she will try and get out through it regardless of where it is … the longer Nawaal is inside the more frustrated she gets … she has no awareness of danger and enjoys climbing… This is a situation that is far too dangerous to continue this way. It is not a case of if Nawaal will fall but a case of when.” (emphasis added)
Three months later, this appalling prophecy was fulfilled.
Following Nawaal’s death, the Defendant arranged and held ‘Rapid Response’ meetings (28 June 2013 and 28 July 2013) to evaluate the circumstances of this tragic event, and in order to establish if there were (and if so what) lessons to be learned. A Multi Agency Management Review was convened, which ultimately reported on 22 February 2014.
On 4 September 2013, Dr. Tony Wheeler, a community paediatrician and Chair of the ‘Rapid Response’ meetings (as designated doctor for child death and safeguarding, with responsibility for reviewing services provided for all children in the area of the Defendant who have died), wrote to the Claimant attaching his report for the Coroner; in that report it was said that:
“The issues identified were focused on housing, and abuse and neglect were not identified as factors in Nawaal’s care or death. The consensus at both Rapid Response Meetings was that the requirements for a serious case review were not met.” (emphasis added)
In this regard, the reference in the report to the absence of ‘abuse and neglect’ plainly, it seems to me, referred to the provision and quality of parental care. Dr. Wheeler’s report concludes by indicating that ongoing consideration of the case would pass to the Islington Child Death Overview Panel (CDOP). Later (December 2013) Dr. Wheeler indicated that the CDOP would not review the case further until the post mortem results were obtained.
An inquest into Nawaal’s death had been opened; this process concluded in February 2014, with the Coroner finding (so I am advised) that “the fall was foreseen by various organisations working with the family who had been communicating concerns to the council since May 2010”. The verdict was one of accidental death.
On 17 February 2014, the Claimant, through solicitors, wrote to the Defendant asking whether a final decision had been made about an SCR. The Defendant replied on the following day confirming that it was not intending to hold an SCR as the death did not arise from suspected or actual abuse or neglect. On 6 March 2014, the Claimant’s solicitor sent a pre-application protocol letter; on 19 March 2014, the Defendant replied indicating that:
the actual decision not to hold a SCR had been made on 28 June, and re-considered and confirmed on 15 August 2013 (as it happens, the Claimant maintains that until this date she was unaware that any meeting had taken place on 15 August 2013);
the CDOP (which had last met on 27 February 2014) had made no recommendation for an SCR;
and
that any potential claim was therefore significantly out of time.
Two and a half months later, the Claimant issued her claim, contending:
That there had been a failure on the part of the Defendant to comply with its duty to undertake an SCR into the death of the Claimant’s daughter, and/or
A failure to exercise its discretion to undertake such an SCR.
On 20 June 2014, the Defendant filed and served its Acknowledgment of Service and detailed Grounds of Defence prepared by Mr Bryan McGuire QC. That document contained the following passage:
“a disagreement as to the ambit of the words ‘suspicion of abuse or neglect’ or the nature and extent of any power to initiate an SCR are the kinds of matters an LSCB would refer to the Panel for an independent view before reaching a final decision”.
The ‘panel’ referred to in this passage is the NPIE (see [4] above).
The application for permission to apply for Judicial Review was considered on the papers by Mr Justice Mitting on 26 June 2014; he refused permission. His reasons are shortly and clearly stated as follows in summary:
The claim is significantly out of time without proper explanation; Mitting J. determined that the decision not to conduct the SCR had been taken in the summer of 2013 and communicated to the Claimant in the early autumn of 2013, some 8½ months before the claim form was issued;
That no good purpose would be served by an SCR given that there has already been a full coroner’s inquest, and a Multi Agency Management Review;
That further, and in any event, the Claimant’s basic contention that “neglect” encompasses alleged shortcomings in the Islington London Borough Council’s system for allocating social housing is not arguable.
The Claimant sought the opportunity to renew her application for permission to apply for Judicial Review orally (by notice dated 1 July 2014); in the meantime, and as foreshadowed by Mr McGuire (see [22] above) the Defendant decided to refer the matter to the NPIE for advice on whether, in the circumstances, an SCR would be indicated.
The NPIE was duly instructed on 29 July 2014 by Alan Caton, the Defendant’s independent chair. The Defendant invited the Claimant to withdraw the claim, but she declined to do so. The hearing of the Claimant’s renewed oral application for permission to apply for Judicial Review was scheduled for 12 August 2014; this hearing was vacated by Nicola Davies J. when it transpired that the NPIE was to meet on the preceding day. In acceding to the application to adjourn, Nicola Davies J directed that:
“Within 14 days of being notified of the view of the Independent Panel of Experts … the Claimant shall notify the Court whether she wishes to proceed with the claim; if so the permission application to be listed as soon as possible thereafter”.
On 18 August 2014 the NPIE wrote to the Defendant in these terms:
“Following very careful consideration of the information provided at their meeting on 11 August, the Panel are strongly of the view that there is clear evidence of Islington LBC’s failure to protect the safety and wellbeing of child Nawaal. However, on the specific issue of whether an SCR is required, they concluded that in the apparent absence of relevant case law, or an explicit policy direction from the Department for Education as to whether a body such as a local authority can be guilty of neglect within the remit of Regulation 5(2)(a) of the LSCB’s Regulations (2006) as set out in Working Together 2013, it is not possible for the Panel to be definitive as to whether the criteria for an SCR are met. The Panel take the view that the particular issues raised by this case are more appropriately addressed either with a determination in the courts or by a clear policy directive from the Department for Education.” (emphasis added).
That advice was provided to the Claimant on 26 August 2014 by e-mail. On the following day, 27 August 2014, the Defendant’s solicitor wrote further to the Claimant’s solicitors in these terms:
“Further to my email … I have received the Defendant’s instructions. Yesterday morning the Board met to consider the Panel’s views. The Board has considered those views as sought by its referral to the Panel. With those views in mind, the Board will exercise its power to commission a Serious Case Review in this case, notwithstanding there is no duty to do so.”
On 29 August 2014 the Claimant’s solicitors, in acknowledging this significant development, wrote to the Defendant’s solicitors:
“The position generally remains unsatisfactory as in the light of the advice of the Expert Panel there is plainly a need for clarification about the circumstances in which an SCR should take place, we therefore consider that there is a real public interest in this case continuing and intend to seek a declaration as to the circumstances when a Serious Case Review should be instigated. … We write to enquire whether your client will be prepared to agree that the litigation should continue … We consider that the Secretary of State should be joined and it would be for him/her to respond substantively to the claim for a declaration. … This is obviously an unusual case. We invite you to consider our proposal carefully.”
On 8 September 2014, the Defendant’s solicitor sent a detailed reply rejecting the proposal that the litigation continue, and invited the Claimant to abandon the application “without more ado”. Not insignificantly, it further indicated that “the Board will entertain any contentions of institutional neglect pursued before it”; the Defendant argued that the claim was now “academic”, and without merit. Notwithstanding these representations, on the same day the Claimant notified the court the she intended to prosecute her claim.
Legal aid difficulties intervened. The Legal Aid Agency imposed a limit on the certificate of the Claimant in view of these developments, but these were ultimately resolved, in the way described at [5] above.
Serious Case Reviews: the arguments
The requirement on local authorities to establish Local Safeguarding Children Boards (‘LSCB’s) is to be found in section 13 Children Act 2004 (“the 2004 Act”); section 13 contains the requirements of membership of the LSCB.
Section 14 provides:
“(1) The objective of a Local Safeguarding Children Board established under section 13 is—
(a) to co-ordinate what is done by each person or body represented on the Board by virtue of section 13(2), (4) or (5) for the purposes of safeguarding and promoting the welfare of children in the area of the authority by which it is established; and
(b) to ensure the effectiveness of what is done by each such person or body for those purposes.
(2) A Local Safeguarding Children Board established under section 13 is to have such functions in relation to its objective as the Secretary of State may by regulations prescribe (which may in particular include functions of review or investigation).
(3) The Secretary of State may by regulations make provision as to the procedures to be followed by a Local Safeguarding Children Board established under section 13.”
The relevant statutory regime governing LSCBs and their role in relation to SCRs is located in the Local Safeguarding Children Boards Regulations 2006 (“the 2006 Regulations”) which derive from the power vested in the Secretary of State under section 14(3) of the 2004 Act. Regulation 5 of the 2006 Regulations provides as follows:
“Regulation 5: Functions of LSCBs
(1) The functions of an LSCB in relation to its objective (as defined in section 14(1) of the Act) are as follows—
(a) developing policies and procedures for safeguarding and promoting the welfare of children in the area of the authority, including policies and procedures in relation to—
(i) the action to be taken where there are concerns about a child’s safety or welfare, including thresholds for intervention;
(ii) training of persons who work with children or in services affecting the safety and welfare of children;
(iii) recruitment and supervision of persons who work with children;
(iv) investigation of allegations concerning persons who work with children;
(v) safety and welfare of children who are privately fostered;
(vi) co-operation with neighbouring children’s services authorities and their Board partners;
(b) communicating to persons and bodies in the area of the authority the need to safeguard and promote the welfare of children, raising their awareness of how this can best be done, and encouraging them to do so;
(c) monitoring and evaluating the effectiveness of what is done by the authority and their Board partners individually and collectively to safeguard and promote the welfare of children, and advising them on ways to improve;
(d) participating in the planning of services for children in the area of the authority;
(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned.
For the purposes of paragraph (1)(e) a serious case is one where—
abuse or neglect of a child is known or suspected; and
either—
the child has died; or
the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.
An LSCB may also engage in any other activity that facilitates, or is conducive to, the achievement of its objective.” (emphasis by underlining added).
The supporting narrative Guidance concerning the conduct of SCRs is contained in ‘Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children’ (March 2013), published by the Department for Education; the relevant passages are to be found at page 68 (ibid) thus:
“12. Cases which meet one of these criteria (i.e. regulation 5(2)(a) and (b)(i) or 5 (2)(a) and (b)(ii) above) must always trigger an SCR. In addition, even if one of these criteria are not met an SCR should always be carried out when a child dies in custody, in police custody, on remand or following sentencing, in a Young Offender Institution, in a secure training centre or a secure children’s home, or where the child was detained under the Mental Capacity Act 2005. Regulation 5(2)(b)(i) includes cases where a child died by suspected suicide.
13. Where a case is being considered under regulation 5(2)(b)(ii), unless it is clear that there are no concerns about inter-agency working, the LSCB must commission an SCR. The final decision on whether to conduct the SCR rests with the LSCB Chair. If an SCR is not required because the criteria in regulation 5(2) are not met, the LSCB may still decide to commission an SCR or they may choose to commission an alternative form of case review.
14. LSCBs should consider conducting reviews on cases which do not meet the SCR criteria. They will also want to review instances of good practice and consider how these can be shared and embedded. LSCBs are free to decide how best to conduct these reviews. The LSCB should oversee implementation of actions resulting from these reviews and reflect on progress in its annual report.” (emphasis by bold in the original).
In seeking to persuade me of his arguable case, Mr Wise placed heavy reliance on:
the views of the NPIE as expressed in their letter dated 18 August 2014 (see [26] above);
and further
the views of the Legal Aid Agency (LAA), expressed in their letter 11 November 2014 (see [36] below), following the meeting of the Special Controls Review Panel.
The terms of the LAA letter are as follows:
“1. We were satisfied that there were very many children who are engaged with public bodies of many descriptions whose lives are dependant on the behaviour of those employed by those public bodies and whose future lives will be affected by appropriate guidelines as to when SCRs should be held when any of those children dies or is seriously injured as a result of the possible fault of those employed by those public bodies. The Court should be given the opportunity to define the term ‘neglect’ in section (sic.) 5(2)(a) of the Regulations as per the request of the NPIE.
2. The potential benefit is that if the court can be persuaded to issue such guidance there is every chance that SCRs will take place which would not otherwise have been (sic.) and this, in our view, is likely to result a (sic.) better understanding, lessons learnt and the consequential saving of lives of children otherwise at risk.
3. It is impossible to quantify the number that might or will be affected. However we were unanimously of the view that this is very likely to result in the saving of children’s lives, being children dependent on the actions of employees of public bodies. We would add that such children are often the most vulnerable in society, either because of their own mental health issues or because of the mental health issues of those that are supposed to be looking after them.
4. It will result in others not needing to institute proceedings as clear guidance will have been given as to when SCRs should be ordered.
5. The point of law is clearly identifiable.”
Mr Wise encouraged me to adopt a ‘broad’ interpretation of regulation 5(2), encouraging me to conclude that the imperative of safeguarding children, and of child protection generally, demands that unnecessary limits should not be placed on the construction of regulation 5 of the 2006 Regulations. He contended that there is a real public interest in this claim being permitted to proceed, notwithstanding that the SCR has in fact been commissioned in the instant case, and argued that even if the claim was ‘academic’ in relation to Nawaal, it raises real learning points relevant to other potential cases, some of which were being handled by his instructing solicitor.
Mr McGuire and Mr Baker formed common cause in resisting the application; the Defendant had submitted a comprehensive response to the original claim, now largely obviated by the Defendant’s decision to commission an SCR. Revising their submissions to reflect the recently amended shape of this claim, they argued:
The claim is now academic, and should therefore not be permitted to proceed;
The proper approach would be for the Secretary of State to determine the issue of the remit of regulation 5(2) of the 2006 Regulations, this being essentially a matter of policy; the claim is therefore, at best, premature;
It would be unprincipled for there to be an SCR and an Administrative Court action operating simultaneously, analysing broadly the same facts;
The delay in bringing the claim had not been adequately explained or justified.
I hope that in abbreviating the arguments of counsel in this way, I have done none of them or their cases any disservice.
Discussion
As earlier indicated ([10] above), I refuse this application for permission to apply for judicial review. This decision, inevitably starkly expressed, does not reflect my considerable sympathy for the Claimant in suffering such an appalling family tragedy in the circumstances described earlier in this judgment. The refusal of this application should not be treated or understood as any indication of my views about the action or inaction of the LB Islington, or the associated relevant agencies, in the discharge (or otherwise) of their responsibilities towards the Claimant and her children.
However, I have reached this decision clearly for the following reasons:
The claim as pleaded in its revised form does not enjoy a reasonable prospect of success; ‘neglect’ in regulation 5(2) does not, in my judgment, cover ‘neglect’ by a public body in failing to discharge its safeguarding duties to a child;
The claim is academic, the Defendant having now agreed to conduct an SCR, which will include consideration of “institutional neglect”; there is insufficient justification in permitting the claim to proceed when there is now no lis between the parties;
I am of the view that if consideration is to be given to a potentially wider remit of regulation 5(2)(a), this should be considered by the Secretary of State in the Department for Education in the first instance, not the court;
The claim is premature; until the SCR has taken place, and/or the Secretary of State has considered the issue, there is no proper framework or decision, within which to consider this point of principle.
I develop these points in turn
Prospect of success: Permission to apply for judicial review would only be granted if I were satisfied that there is an arguable case which merits full investigation at a full oral hearing with all of the parties and all of the relevant evidence (see CPR 1998, Part 54.4 and CPR 54.4.2). Having heard counsel for all parties at this hearing, I have concluded that this application does not satisfy the requisite test.
I have considered the statutory regime carefully, and have reached the view that the words “abuse or neglect of a child” in regulation 5(2)(a) of the 2006 Regulations do not refer to “abuse or neglect” by a public body which is not at the time actually caring for, or looking after, the child. In the circumstances, the claim does not enjoy a reasonable prospect of success.
First, section 14(1) of the 2004 Act is clear that the “objective” of the LSCB is to co-ordinate what is done by “each person or body represented on the Board… for the purposes of safeguarding and promoting the welfare of children in the area of the authority”, and to ensure the “effectiveness” of the same. This contemplates, specifically, public bodies offering safeguarding services to children who are being provided with care by others; this does not in my judgment contemplate ‘review’ of its own alleged ‘neglect and abuse’. This point is re-inforced when regulation 5(2) is read in its totality alongside regulation 5(1); regulation 5(1)(a) plainly contemplates that children are cared for by those to whom services are or can be offered.
That said, if the child is in the actual care of the authority at the time of the death or serious harm, and abuse or neglect of the child is known or (more likely in this instance) suspected, then those circumstances may well justify an SCR; in this regard it is instructive to see, for example, §8.47 of Working Together to Safeguard Children: A Guide to inter-agency working to safeguard and promote the welfare of children (2010), and §19.1.11 of the London Safeguarding Children Board, London Child Protection Procedures (2010): 4th edn).
Secondly, regulation 5(2) has to be read in its totality. The definition of “serious case” is one which includes known or suspected “abuse or neglect of a child” (regulation 5(2)(a)) together with either the death or serious harm to a child (regulation 5(2)(b)), and importantly in each situation:
“…there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.”
The term “the authority” is defined as “the children’s services authority by which an LSCB is established” (Regulation 2(2)(a)).
As a matter of construction, therefore, the duty is triggered by suspicion of abuse or neglect; on that duty being triggered the question then arises as to whether the authority has worked with its associated agencies to safeguard the child. In my judgment, the words which follow “there is cause…” would be unnecessary if ‘abuse or neglect’ were intended to include the failings (i.e. neglect) of the authority to safeguard the child. This analysis is, in my judgment, supported by the guidance published by the joint initiative of relevant agencies under the umbrella of the London Safeguarding Children Board London Child Protection Procedures (4th Edition: 2010); the definition of the terms ‘physical abuse’, ‘emotional abuse’, ‘sexual abuse’, and ‘neglect’ (see §1.3.1-1.3.12) would not be applicable to the actions or inactions of a local authority.
The claim is now academic: The Claimant has obtained the relief which she originally sought. An SCR has been commissioned. Moreover, any contentions of “institutional neglect” in her case will be considered (confirmed by the Defendant’s solicitor e-mail of 8 September 2014). Mr Wise encouraged me to take what he described as the ‘modern’ approach to administrative court process, by which I could or should consider an application for judicial review even if by the time of the consideration by the court, the essential relief sought by the citizen who has brought the claim has been satisfied; in this regard he referred me to the cases of R(L) v Secretary of State for Justice [2009] 1 AC 588, and R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621 (per Lord Wilson at [2]). I am wholly unpersuaded that this potential claim falls to be considered in the same context as those appeals; quite apart from any other consideration, it was only after determination of the issue at first instance in those cases that the claim between the parties fell away, leaving the state of the law uncertain and justifying clarity; hence appeals to the Supreme Court.
In considering this argument, I propose to adopt and follow the guidance and the summary of the law in this area offered by Silber J in R (on the application of Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin); [2008] ACD 44 (“Zoolife”) thus:
Discussion
The starting point for considering whether a court should permit a party to pursue an academic point in a public law case is the classic statements of Lord Slynn of Hadley in R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 in a speech with which other members of the Appellant Committee agreed when he explained (with my emphasis added) that:
"…I accept, as both counsel agree, that in a case where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se… The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future"
One of the reasons for this approach was expressed by Lord Goff in R v Secretary of State for the Home Department ex parte Wynne [1993] 1 WLR 115 at 120A-B where he said that:
"It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future".
These statements refer to the approach of the House of Lords but there is no reason why they should not apply with equal force to other courts. This approach to academic issues was considered further in the speeches by the members of the Appellate Committee in R (on the application of Rusbridger) v Attorney General [2004] 1 AC 357 in which:
Lord Hutton explained that "it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them" (page 371 E [35])
Lord Hutton expressly approved at page 371 [35] the statement of Lord Justice-Clerk Thompson in Macnaughton v Macnaughton's Trustees [1953] SC 387-392 that "our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs"; and
Lord Scott of Foscote stated that "the valuable time of the courts should be spent on real issues" (page 374 E[45]).
Similar principles have been applied in the Administrative Court, for example, by Munby J in Smeaton v Secretary of State [2002] 2 FLR 146, 244 [420] ("the facts remain that the court-including the Administrative Court – exist to resolve real problems and not disputes of merely academic significance") and by Davis J in BBC v Sugar [2007] 1 WLR 2593, 2606 [70] ("to grant remedies by reference to a decision made in now outmoded circumstances seems to me to be an arid and academic exercise. It is not something that, as an Administrative Court Judge, I would have been minded to do") Although these statements indicate that if an issue is academic, the court cannot determine it, these statements must be subject to what was said in Salem and which has, as far as I can discover, not been disapproved of or qualified in any manner in any later case."
Silber J, having reviewed these authorities, reached the following conclusion:
In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.
These points are particularly potent at the present time where the Administrative court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is "dealing with a case justly [which] includes, so far as is practicable ….(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases" (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two test which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Home Departments of Health [2005] EWHC 86(Admin) [47])."
Zoolife was followed by Stadlen J in R (Raw) v London Borough of Lambeth [2010] EWHC 507 (Admin) (“Raw”) in which he said this:
“In considering whether against this background I should proceed to decide the issue posed by the general declaration sought by the claimant it seems to me that the starting point must be the policy considerations which lie behind the general rule that the court does not entertain a claim which will not directly affect the rights and obligations of the parties inter se. As appears from the authorities referred to by Silber J in Zoolife and Silber J's own observations, there are a number of policy factors in play. First, as stated by Lord Goff in Wynne a conclusion on hypothetical questions and the accompanying reasons could constitute no more than obiter dicta expressed without the assistance of a concrete factual situation and would not constitute a binding precedent for the future. Although stated in the context of the House of Lords, in principle it seems to me that there is no reason why that consideration should be confined to the most senior appellate court. There are circumstances in which a declaration by the High Court as to the law or as to the legality or illegality of certain conduct may constitute a binding precedent for the future. It follows that the undesirability of reaching conclusions with accompanying reasons without the assistance of a concrete factual situation which would not constitute a binding precedent for the future is capable of applying to the High Court as well as appellate courts.
Allied to this is the obvious public interest in the avoidance of wasting valuable court time and the incurring by one or more parties of unnecessary costs normally inherent in the entertaining of academic disputes whose resolution will neither affect the rights and obligations of the parties inter se nor constitute a binding precedent for the future. In this context as Silber J pointed out these are particularly potent points at the present time in the Administrative Court having regard to the overriding objective in the CPR of dealing with a case justly including allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases.
It seems to me that in this context one particular matter to which the court must have regard is whether the effect of entertaining an academic claim in any particular case may be to encourage or fail adequately to deter the bringing of academic claims by other persons in the future. Even in a case where a claim only becomes academic shortly before it comes to court, by which time most if not all the legal costs may already have been incurred, this is a factor in my view to be weighed in the balance against the argument that the fact of costs having already been incurred in the instant case is a factor pointing in favour of the court proceeding to adjudicate on the claim. In such a case, particularly where there is evidence that there is a large number of other cases in the pipeline likely to raise the same point, there may be an overall net saving of legal costs and possibly even court time if the court proceeds to entertain the claim.
In my judgment the deterrence argument is likely to be of greater importance in a case where the claim was academic even before proceedings were issued.”
Adopting the helpful guidance from Zoolife and Raw and applying it to the facts of this case, I conclude that:
I should exercise considerable caution before entertaining an academic claim. Indeed I would only do so if there were good reason in the public interest to do so (i.e. if I were to be satisfied that there is a large number of similar cases in the pipeline). I am not satisfied that the issue raised by Mr Wise’s proposed declaration is of such wide interest or application that it positively demands consideration by the court at this point in time, or at this stage of these proceedings between these parties; the 2006 Regulations have been in force for well over 8 years, and in our collective experience (as discussed in argument), the need for such clarity has not arisen hitherto.
There is no concrete factual basis for the determination; therefore if I were to embark on an exercise of detailed statutory construction, it is likely that any ruling would be regarded as obiter dicta;
I must guard against authorising or endorsing the expenditure of valuable court time and cost in considering a claim, the outcome of which will be of no actual or practical benefit to these parties.
For these reasons alone I would reject Mr Wise’s argument that the claim should be permitted to proceed.
Department for Education: I am firmly of the view that the issue which the Claimant wishes to be considered by the court would be better considered by the Secretary of State for Education. As things stand, the Secretary of State has not had the chance to consider the issue raised by the proposed declaration; indeed, so far as I am aware she is not yet even aware of this potential claim, notwithstanding that:
The Claimant contends that it is the Secretary of State whose response to the claim is most directly relevant to the Claimant (indeed it was suggested by the Claimant’s solicitor in a letter to the Defendant’s solicitor on 29 August 2014 that it would be for the Secretary of State “to respond substantively to the claim for a declaration …there would be no need for your client to take any substantive role or incur any significant expense”),
and
The Claimant seeks the immediate joinder of the Secretary of State to the proceedings as an Interested Party (this was first canvassed in August 2014, but no step appears to have been taken to pursue this, possibly as a result of funding difficulties).
Given my conclusion that regulation 5(2) does not give of the construction contended for by Mr Wise (see [42] above), the question posed by the proposed declaration set out in [6] (above) raises an issue of policy – namely whether the regulation should be amended or more widely interpreted to encompass an additional category of case such as where there is alleged ‘neglect’ by a public body. This policy question is not in fact new; the suggestion that SCRs should be ordered in more categories of case was identified some years ago by Lord Laming in his report “The protection of Children in England: A Progress Report” at §6.6, in which he proposed that:
“the purpose and processes of SCRs can be further developed to strengthen their impact on keeping children safe from harm.”
Specifically, he referred to the “current remit” of SCRs as being “too narrow”. Whether there should be a change in the ‘remit’ of SCRs is an issue which should be led by the policy maker not by the court. In this respect, I consider that the NPIE was right to advise that this issue should / could be referred to the Department for Education.
My conclusion on this aspect was fortified by my discovery that, on the day of the oral hearing of this application before me on 12 November, Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, was coincidentally addressing the LSCB Chair’s annual conference in these terms:
“I’m still concerned about cases where SCRs are not even being commissioned. About times when debates over semantics get in the way of finding out what went wrong. This may not happen that often, but it happens often enough for me and the panel to be concerned. So, following the panel’s recommendation, we’re planning further clarification of ‘Working together to safeguard children’, so it will now include guidance about what ‘serious harm’ actually means in the context of making decisions on whether or not to commission an SCR. And to help you with information sharing, we’re planning to clarify in Working Together the need for local authorities to notify serious incidents.” (emphasis added) (source: MoJ).
This announcement followed, and specifically drew upon, the first annual report of the NPIE on Serious Case Reviews (July 2014) (DFE-00531-2014) (a report which was published shortly before the NPIE sent out its advice letter in this case, the contents of which are set out at [26] above). In that report, the panel had made the following significant observations as follows:
“The panel’s view is that opportunities to learn from mistakes are being overlooked in the argument over where the SCR initiation line is drawn. It is essential that everyone sees lessons for children’s protection (looking backwards and forwards) as the central issue, not the need to abide only by the letter of the law.” [19]
“The panel would encourage more LSCBs to consider carrying out a proportionate SCR, even in cases where the statutory criteria are not met, rather than another type of less formal review, so lessons may be understood and shared more widely. Indeed, it is their view that use of a range of investigative tools and techniques to carry out a review in a way which is flexible and relevant to the individual case circumstances may be more appropriate than a more fixed methodology” [20].
The claim is premature: It follows from the discussion above that any claim for judicial review would only properly be made:
If/when the Secretary of State has had the opportunity to consider whether the 2006 Regulations should be amended or re-interpreted (by way of Guidance or otherwise) to reflect a wider ‘remit’ for LSCBs to conduct SCRs;
And/or:
Once the SCR has been concluded in this case so that there is a clear factual framework within which to operate.
Delay. Given my conclusions on the substantive matters discussed above, I have not had to resolve this application for permission by reference to the argument that it was significantly out of time.
Had I been required to do so, I would have concluded that it would not have been appropriate to grant an extension of time to pursue the claim, having regard to the clear provisions of CPR 54.5(1) and section 31(6) of the Senior Courts Act 1981. While not unsympathetic to the funding issues encountered by the Claimant at various stages along the route, there is a considerable period of time in the history of this case in respect of which there is no explanation for inactivity.
I am of the view that the Defendant’s decision not to commission an SCR had been taken in the summer of 2013, and this was communicated to the Claimant by no later than 25 September 2013. The Claimant’s solicitor recognised this at the latest by 13 December 2013 when she wrote to the Defendant referring to this decision. This critical 3 month period (September – December 2013) has not been adequately accounted for in the various explanations offered for the failure to bring the claim in a timely way.
That is my judgment.