ON APPEAL FROM
MR JUSTICE BLAIR
HIGH COURT, QUEENS BENCH DIVISION ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LADY JUSTICE BLACK
| THE QUEEN on the application of O
|- and -
|LONDON BOROUGH OF HAMMERSMITH AND FULHAM
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Mr Paul Greatorex (instructed by Legal Dept London Borough of Hammersmith & Fulham) for the Respondent
Hearing dates : 13th July 2011
Crown Copyright ©
The hearing before Blair J
"I would adopt the approach that Wilson J adopted in R on the application of CD v Isle of Anglesey CC  EWHC 1635 (Admin). He said that he did not think that it 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."
After the hearing before Blair J
Evaluating the options for O
"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."
"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."
"….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."
"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."
"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.
"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."
"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."
"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."
Is there only one way validly to meet O's needs?
"(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."
The refusal of Blair J to grant mandatory relief
Section 1 Children Act 1989
"(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."
"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  EWHC 18 (Fam/Admin),  Fam 213, and CF v SSHD  EWHC 111 (Fam),  1 FCR 577, at paras -. Just as I pointed out in R (A,B,X and Y) v East Sussex CC (No 2)  EWHC 167 (Admin), (2003) 6 CCLR 194, at para , 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  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….."
"…... 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.
 But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer……."
"….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."
Conclusions in relation to O's appeal
The Respondent's cross appeal
I also agree.