England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(COBB J)

		Royal Courts of Justice Strand London, WC2
		6th October 2015

1. LORD JUSTICE BURNETT: This is a renewed application for permission to appeal against the order of Cobb J of 12th November 2014, whereby he refused permission to the claimant to apply for judicial review. The claim form was directed (i) at the defendant's failure to comply with its duty to undertake a serious case review into the death of the claimant's daughter, Nawaal and (ii) the defendant's failure to exercise the discretion that it had to undertake such a serious case review.
2. Permission to apply for judicial review was first refused by Mitting J on 27th June 2014 in these terms:

"1. This claim is out of time. The defendant decided not to undertake a serious case review at meetings held on 28 June, 23 July and 15 August 2013, the outcome of which was notified to the claimant in a report said to have been sent to her on 4 September 2013 (and date stamped 25 September 2013) by Dr Tony Wheeler. Instead, the defendant and the interested party decided to set up a multi- agency management review. The conclusions of that review were set out in a report dated 22 February 2014. This claim was not issued until 6 June 2014.

2. No good purpose would be served by a serious case review. There has already been a full inquest and a multi-agency management review, which made sensible proposals for minimising the risk of death caused to children in the same position as that of the claimant's late daughter.

3. Further, and in any event the claimant's basic contention that 'neglect' encompasses alleged shortcomings in the interested party's system for allocating social housing is not arguable."

4. The third reason given by Mitting J identifies the underlying issue which arises in this case and which the claimant wishes to argue. In a tragedy which occurred on the 25th June 2013, Nawaal fell from the balcony of the family's eleventh floor flat in Islington. She was only 7 years old. The council was well aware that Nawaal, who had various difficulties, was lacking in safety awareness and very active. She was at risk of falling if she were able to gain access to the balcony or climb from a window.
5. The circumstances were that Nawaal was not in the care of the local authority, but for the purposes of the various legislation in play she was a child in need. It was in these circumstances that the claimant contends that by regulation 5(2)(a) of the Local Safeguarding Children Boards Regulations 2006, a serious case review was required because "abuse or neglect of a child" was known or suspected. It is argued that the term "neglect" for these purposes should be interpreted broadly to encompass a failure on the part of anyone, but in these circumstances focusing particularly on the local authority, to take steps to protect a child against a known risk.
6. The application for permission to apply for judicial review was renewed at an oral hearing before Cobb J on 12th November 2014. He handed down a comprehensive judgment on 27th November which may be found under neutral citation [2014] EWHC 3966 (Admin). A full recital of the deeply distressing facts and the arguments can be found in that judgment.
7. In refusing permission the judge concluded, as had Mitting J, that the claimant's construction was untenable. He also considered that the claim had by then become academic. That was because the council had agreed to conduct a serious case review on 27th August 2014. Whether or not they were obliged to do so, it was common ground that they had a discretion to do so. In those circumstances the judge was unpersuaded that it was appropriate to allow what had become for the claimant an academic claim, to proceed.
8. In the course of his judgment he referred at length to the principal authorities governing the question whether academic claims should proceed to hearing. Next, he considered that if there were any perceived problem with the application of the regulations the relevant government department should be invited to consider them. Mr Wise has explained, and the explanation is supported by documents produced by his solicitor, Ms Carrier, that the relevant department has not acceded to an invitation to review the matter. Lastly, the judge took precisely the same view on the question of delay as had Mitting J.
9. The application for permission to appeal came before Lewison LJ on the papers. In giving his reasons for refusing permission he said:

"1. The first ground on which Mitting J refused permission on the papers was that the application was seriously out of time. Cobb J found it unnecessary formerly to decide that point but said at [58] that had he been required to do so, he would have refused to extend time. In the light of the fact that two judges have each considered the claim should be barred on the ground of delay, that is a formidable obstacle to the grant of permission.

2. Irrespective of the underlying merits of the legal arguments Cobb J was entitled to take the view that the claim was academic. Whether to entertain an academic claim is a matter of discretion for the court, and the judge did not err in principle in the exercise of his discretion."

10. Mr Wise QC renews the application. He submits, first, that the judge was wrong to consider the claim academic. In refusing to grant permission to apply for judicial review, even if the claim were academic, he wrongly exercised his discretion. Mr Wise has told me this morning that, as a matter of fact, the serious case review has still not been carried out. Secondly, he submits that both Mitting J and Cobb J were wrong to refuse to exercise their discretion to extend time. Thirdly, he submits that the underlying argument that the word "neglect" in regulation 5(2)A could include a failure of a local authority quickly to re-house a family in these circumstances is strongly arguable.
11. Despite the careful way in which Mr Wise has set out his arguments, both in writing and orally this morning, I am unpersuaded that this is an appropriate case for the grant of permission to appeal.
12. The question whether the claim is academic is answered by the fact that the local authority has agreed to conduct a serious case review. That agreement itself has generated public law duties. Were the local authority to fail to do what it has promised to do separate remedies would very probably be available. But, as I have recorded, the focus of attack in this claim was to secure a serious case review.
13. The question whether it is appropriate to allow a claim to proceed, despite it having become academic, was a question of discretion for the judge at first instance. Like Lewison LJ, I am unable to detect in the extensive discussion of this issue in the judgment of Cobb J any conceivable arguable error of law on his part in coming to the conclusion that he did. That is sufficient to deal with this application but I will mention other matters.
14. Mr Wise has taken me through the chronology in some detail this morning by reference in particular to the evidence of Ms Carrier to seek to demonstrate that the decision not to carry out a serious case review in the first instance was made much later than the dates identified by Mitting J. Indeed, in the course of his argument he submitted that no decision was in fact made until 27th August because it was only then that the decision maker identified in the relevant statutory guidance applied his mind to the matter. That said, it is clear on the strength of the materials available, and in particular the report from Dr Wheeler, that the local authority had set its face against a serious case review early on and in accordance with the timing identified by Mitting J.
15. As Lewison LJ pointed out, this too is a discretionary decision. Two High Court judges have come to the same conclusion on the question of delay. I am unpersuaded that they misdirected themselves as to the underlying factual position. Mr Wise does not submit that if the underlying factual position was correctly understood that their exercise of discretion could be impugned as unreasonable.
16. So far as the merits are concerned, it is submitted that this is an extremely important point of statutory construction. I asked Mr Wise whether there was any evidence of difficulties arising over the construction of regulation 5 (2)(b) in similar circumstances. The papers before me demonstrate that serious problems with accommodation giving rise to potential risk to children is unhappily not a rare occurrence. But there is nothing to suggest that the application of the regulation concerned or the subsidiary discretionary power is causing difficulty.
17. It is unnecessary for me to deal with the construction of the word 'neglect' given my conclusions on the academic nature of the claim and delay. It is sufficient to observe that were it necessary to do so, like both Cobb J and Mitting J I consider that it is not broad enough to encompass the failing to which the appellant points in this case. I record that Mr Wise made a careful submission by reference to the judgment of the Master of the Rolls, in J, R (on Application of) v Worcestershire County Council Equality of Human Rights Commission Intervening [2015] 1 WLR 2825. But I was not persuaded by it.
18. For these reasons I refuse the renewed application for permission.