QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|(1) NORFOLK COUNTY COUNCIL
|(2) THE SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jane McCafferty (instructed by Legal Services, Norfolk County Council) for the First Respondent
Katherine Olley instructed by the Treasury Solicitor) for the Second Respondent
Crown Copyright ©
Mr Justice Stanley Burnton:
(a) a claim under the DDA in relation to NCC's discriminatory treatment of JS; and
(b) an appeal under section 326 of the EA against the contents of JS's SEN statement.
In the disability discrimination claim VK complained (so far as is relevant to the present appeal) of NCC's failure to provide any education for her son between November 2002 and February 2003, and of the small amount and inappropriateness of the educational support provided by it through its VTS. In summary, she complained:
My son has received no educational support for the special needs therefore since arriving in Norfolk in November 2003.
The decision of the Tribunal
The grounds of appeal
(a) The Tribunal misdirected itself in law, at paragraph g of its reasons, in requiring VK to establish that "the treatment JS received related solely to his disability" (italics added).
(b) The Tribunal misdirected itself in law in suggesting, at paragraph i of its reasons, that the relevant comparison for the purposes of the DDA was whether "all pupils whether disabled or not receive the same level of VTS".
(c) The Tribunal's decision under the sub-heading "Was the treatment justified?" is vitiated by inadequate reasoning and illegality. In particular, the Tribunal failed to explain on what basis it accepted that there was a substantial reason that was material to the circumstances of the case justifying the very low level of educational provision pending placement at a school.
(d) In so far as the Tribunal did find that there was such justification, such a conclusion was irrational and unlawful. In particular, NCC could not lawfully have justified its less favourable treatment of JS (in the provision of a suitable education under section 19 of the EA) by reference to any issue of resources.
(e) The Tribunal acted irrationally and unfairly in refusing to accept Mr Mallen's reports in evidence.
The contentions of the Respondents
The statutory framework
(1) Each local education authority shall make arrangements for the provision of suitable . . . education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. …
(4) A local education authority may make arrangements for the provision of suitable . . . education otherwise than at school for those young persons who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.
(4A) In determining what arrangements to make under subsection (1) or (4) in the case of any child or young person a local education authority shall have regard to any guidance given from time to time by the Secretary of State.
(5) Any child for whom education is provided otherwise than at school in pursuance of this section, and any young person for whom full-time education is so provided in pursuance of this section, shall be treated for the purposes of this Act as a pupil.
(6) In this section "suitable education", in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.
Sick children should be enabled to benefit from as much education is their illness allows. Depending on individual circumstances, this could range from little or no provision for a child who was seriously ill, to a full timetable for other children. …
It is not entirely clear whether JS is a sick child for these purposes, but I do not think that anything turns on this.
ensure that, where possible, pupils are quickly re-integrated into mainstream schools;
ensure all pupils excluded for more than 15 days received suitable fall-time education. … LEAs should look carefully at how to meet this commitment by making best use of the resources available.
(1) For the purposes of section 28A, a responsible body discriminates against a disabled person if—
(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and(b) it cannot show that the treatment in question is justified.
(2) For the purposes of section 28A, a responsible body also discriminates against a disabled person if—
(a) it fails, to his detriment, to comply with section 28C; and(b) it cannot show that its failure to comply is justified…
(5) Subsections (6) to (8) apply in determining whether, for the purposes of this section—
(a) less favourable treatment of a person, or(b) failure to comply with section 28C,is justified.
(6) Less favourable treatment of a person is justified if it is the result of a permitted form of selection.
(7) Otherwise, less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.
28F Duty of education authorities not to discriminate
(1) This section applies to—(a) the functions of a local education authority under the Education Acts; …(3) In discharging a function to which this section applies, it is unlawful for the authority to discriminate against—
(a) a disabled pupil; or(b) a disabled person who may be admitted to a school as a pupil…
(7) "The Education Acts" has the meaning given in section 578 of the Education Act 1996.
28G Residual duty: supplementary provisions
(1) Section 28B applies for the purposes of section 28F as it applies for the purposes of section 28A with the following modifications –
(b) references to a responsible body are to be read as references to an authority; …
(7) "Authority" means-(a) in relation to England and Wales, a local education authority; ..
Jurisdiction and powers of the Tribunal
(1) A claim that a responsible body –
(a) has discriminated against the person ("A") in a way which is made unlawful under this Chapter, or
(b) is by virtue of section 58 to be treated as having discriminated against a person ("A") in such a way,
may be made to the Tribunal by A's parent.
(3) If the Tribunal considers that a claim under subsection (1) is well founded –
(a) it may declare that A has been unlawfully discriminated against; and
(b) if it does so, it may make such order as it considers reasonable in all the circumstances of the case.
(4) The power conferred by subsection (3)(b) –
(a) may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates; but
(b) does not include power to order the payment of any sum by way of compensation.
Decision of the tribunal
36. - (1) …
(2) The decision of the tribunal may be given orally at the end of the hearing or reserved and, in any event, whether there has been a hearing or not, shall be recorded forthwith in a document which, save in the case of a decision by consent, shall also contain, or have annexed to it, a statement of the reasons (in summary form) for the tribunal's decision, and each such document shall be signed and dated by the chairman.
(4) Every decision of the tribunal shall be entered in the records.
(5) As soon as may be the Secretary of the Tribunal shall send a copy of the document referred to in paragraph (2) to each party, accompanied by guidance, in a form approved by the President, about the circumstances in which there is a right to appeal against a tribunal decision and the procedure to be followed.
(7) Every decision shall be treated as having been made on the date on which a copy of the document recording it is sent to the parent (whether or not the decision has previously been announced at the end of the hearing).
(a) Was the Tribunal entitled to reject Mr Mallen's reports as irrelevant?
(b) Did the Tribunal correctly apply the substantive law applicable to this case?
(c) Is its decision sufficiently reasoned?
(d) If its decision is insufficiently reasoned, should it be remitted for it to supplement its reasons?
The rejection of Mr Mallen's reports
"JS's needs were known and the appropriate response was to provide him with a specialist teaching in literacy and numeracy and this could have been provided by the County Peripatetic Learning Support Service."
Did the tribunal correctly apply the law?
(a) What is the treatment which is the subject of the disabled person's complaint?
(b) Who are the "others" to whose treatment the disabled person's treatment is to be compared?
(c) Is the treatment received by the disabled person less favourable than that received by those others?
(d) If so, is that for a reason which relates to his disability?
(e) If the answer to (d) is affirmative, has the responsible body shown that the treatment in question is justified?
Justification of less favourable treatment is to be determined (where subsection (6) does not apply) in accordance with subsection (7). In many cases, the principal question to be addressed by the tribunal is likely to be justification.
67. Section 19 covers, among many other things, access to facilities for refreshment: (3)(f). The important point to note is that, if Novacold are correct in their interpretation of s.5(1), it would follow that s.20(1), which is in the same terms, would have to bear a meaning inconsistent with the specific statement of the Minister on the intended effect of those provisions.
68. Consider his example. If no dogs are admitted to a café, the reason for denying access to refreshment in it by a blind person with his guide dog would be the fact that no dogs are admitted. That reason 'relates to' his disability. His guide dog is with him because of his disability.
69. On the Novacold interpretation of the comparison to be made, the blind person with his guide dog would not be treated less favourably than the relevant comparator, i.e. 'others', to whom that reason would not apply, would be sighted persons who had their dogs with them. There could not therefore be any, let alone prima facie, discrimination. But the Minister specifically stated that this would be a prima facie case of disability discrimination, i.e. less favourable treatment, unless justified. It could only be a case of less favourable treatment and therefore a prima facie case of discrimination, if the comparators are 'others' without dogs: 'that reason' for refusing access to refreshment in the café would not apply to 'others' without dogs.
70. The same point can be made on the example given in the Code of Practice on Rights of Access issued by the Secretary of State at para. 2.12:
'A waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability. He serves other customers who have no difficulty eating. The waiter has therefore treated her less favourably than other customers. The treatment was for a reason related to her disability – her difficulty when eating. And the reason for her less favourable treatment did not apply to other customers. If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully.'
71. It is clear from this example that the comparison to be made is with other diners who have no difficulty in eating and are served by the waiter, and not with other diners who may be asked to leave because they also have difficulty eating, but for a non-disability reason, e.g. because the food served up by the waiter is disgusting. This interpretation of s.20(1) provides support for Mr Clark's interpretation of s.5(1). The reason for his dismissal would not apply to others who are able to perform the main functions of their jobs; he has been treated less favourably than those others. He was dismissed for not being able to perform the main functions of his job. The 'others' would not be dismissed for that reason.
72. However, that does not necessarily mean that Mr Clark has been discriminated against. It is open to Novacold to show that the dismissal is justified, just as it would be open to the café proprietor to justify the exclusion of dogs, including guide dogs with their blind owners.
The words "for a reason which relates to the ... disability" in section 5(1)(a) are strikingly different to the descriptions of the causative links used in the other discrimination Acts. Thus in the Sex Discrimination Act 1975 and the Race Relations Act 1976 the respective forms of discrimination consist of treatment "on the ground of" sex: section 1(1)(a) of the 1975 Act, or "on racial grounds": section 1(1)(a) of the 1976 Act. The victimisation provisions involve treatment "by reason that" a protected act has been done or is intended or suspected: section 4(1) of the 1975 Act; section 2(1) of the 1976 Act. Had the model of the earlier Acts been intended by the legislation to have been adopted when the 1995 Act came to be framed, one might have expected to see section 5(1) speaking of treatment "on the ground of" the disabled person's disability or perhaps "by reason that" the claimant was disabled. However, instead (and it can only have been deliberate) the 1995 Act uses the expression "for a reason which relates to the ... disability". Whilst everything done "on the ground" of the disability or by reason of it would inescapably fall within that phrase, the need for the reason merely "to relate to" the disability can only, in our view, be wider and more inclusive than the use of the 1975 and 1976 Act models would have suggested.
Miss Davies points out that in answering (this question), it should be noted that the expression "for a reason which relates to the disabled person's disability in sections 5(1)(a) and 28B(1)(a) has broadened the descriptions of the causative links form the links used in other discrimination Acts. It therefore includes causative links wider than those which would have fallen within the expressions of "on the ground of" or "by reason of" the disability: Rowden v Dutton Gregory (a firm)
Justification and the adequacy of the Tribunal's reasons
"If, however, the employer's reason is outside the band's responses which a reasonable employer might have adopted, the reason would not be substantial."
The Court of Appeal was, I think, seeking to elucidate the meaning of "substantial", but not seeking to replace the statutory words.
Remission to the Tribunal
(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.
The present is a case in which there is such a duty.
The Tribunal did not accept as late evidence a report from John Mallen dated 11 April 2002, which was commissioned by VK, as it did not meet the criteria under regulation 33 of the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedures) Regulations 2003. The report addressed issues relating to JS's special educational needs. These matters had been addressed at the SENDIST on 29 October 2003. The current Tribunal is convened to address matters under the DDA and it would have been a misuse of the process to reopen matters relating to JS's Statement of special educational needs.
The claim alleges that JS suffered discrimination on the grounds of his disability between November 2002 and 20 June 2003 when the claim was presented to the Tribunal. Paragraph 10(1) of schedule 3 of the DDA 1995 provides that a claim must be brought within a period of six months beginning when the act complained of was done. Any acts which occurred before the 21 December 2002 are out of time.
[The Tribunal described JS's disabilities and summarised his relevant history up to his move to Norfolk.]
11. Upon arrival in Norfolk, the RB agreed at VK's request to carry out a statutory reassessment and as an interim measure VK agreed to home tuition from the Visiting Teaching Service (VTS).
12. Mrs Hiles, Education Officer with the RB, explained to the Tribunal that the RB could not identify a school until the completion of the assessment process. By March 2004 that process had been completed. The RB then took account of the mother's wishes, including the placement at Eccles Hall School. The RB decided there were no grounds for a residential placement. The RB concluded that Hethersett School could meet JS's special educational needs.
14. The reassessment process was lengthy as it necessitated the review of Hampshire's extensive files, and the liaison with medical and educational professions with regard to JS's varied physical, medical, educational and emotional conditions. Many of the medical reports needed updating.
15. We noted that Mr Higgins, senior educational psychologist with the RB, believed that on arrival in Norfolk JS was unable to sustain one-to-one tuition over a long period of time.
16. Dr Reading, Consultant Community Paediatrician, in his letter of 1 May 2003 identified a number of medical issues and concluded "However, once again, I go back to the main point which is that provision of a place for JS and encouraging his attendance at school is of prime importance.
17. On 29 November 2002 VK agreed to JS receiving VTS either at home or at Wayland School (where VTS was offered in group sessions).
18. JS received home tuition from the VTS between February 2003 and 16 September 2003. Initially he received 1.75 hours a week, this was increased to 5.5 hours from 30 June 2003 and 8.5 hours from September 2003. The VTS is not a specialist teaching service, but part of a transitional package to re-integrate pupils with educational difficulties such as JS's into a mainstream school.
19. We heard from Ms Marion Swinburn, VTS co-ordinator with the RB, that she would have preferred to offer VTS earlier than February, but due to the demands of the service and the referral and due process this was not possible.
20. We heard from Ms Swinburn that all VTS students, (other than pupils who are excluded from school and Key stage 4 pupils) are offered one session of 1.75 hours a week initially until the staff feel that the child is capable of being integrated into other sessions. We heard from John Scott, VTS teacher, that JS's needs did not fall within the needs of pupils attending group sessions and so individual home tuition was continued and group sessions were not an option.
21. Norfolk's approach to working with pupils who are school phobic is to use a small steps approach:
- Gradually introducing the pupil to a tutor in familiar surroundings, such as the home
- Then moving them to a setting outside the home
- Gradually increasing the amount of tuition
- Moving towards a school type setting and eventually into the school
This approach is the same used for all pupils with school phobia, whether they have a disability or not. Although at the time of commencement of VTS no school had been identified, it was agreed that the process would be appropriate for JS. This is a well established approach which experience indicates has the best chance of success.
22. We heard from Ms Swinburn that the RB wanted to be sure that reintroduction would be successful which is why JS was not introduced to groups which could have increased the hours. We heard that the LEA were concerned that if they did not get the placement right it may set JS back still further.
23. We heard that JS's admission to mainstream school was skilfully engineered and that professionals working with JS considered that it could have quite easily broken down.
27. Although Mr Grodzinski, counsel representing VK, did not formally abandon any claim relating to the RB failing to make reasonable adjustments in respect of JS's disability, the Tribunal concluded that this was not established on VK's behalf.
Tribunal's conclusions, with reasons
We carefully considered the written evidence submitted to the Tribunal, the evidence given at the hearing, the submissions made to us and the Disability Rights Commission's Code of Practice for Schools. We consider that in determining how the provisions of Part 4 of the Disability Discrimination Act 1995 (DDA) should apply, it is appropriate that we should have regard to authoritative decisions interpreting largely (identical) provisions in other parts of the DDA. The issues to be addressed and our conclusions are:
A. In relation to the alleged acts of discrimination we must address four questions in relation to each of the Acts or series of acts referred to
i. What is the treatment complained of?
ii. What is the reason for the treatment?
iii. Did the reason relate to JS's disability?
iv. If so, would the RB have treated in the same way someone else to whom that reason did not apply?
Those are matters which VK must establish.
B. In addition, there is the question:
v. Was the treatment justified?
This is for the Responsible Body to prove.
(i) What is the treatment complained of?
a. The treatment complained of is (i) failure to identify an appropriate school for JS or any school within a reasonable period of time. (ii) Pending that placement the inadequate provision of VTS by the LEA.
(ii) What is the reason for the treatment?
b. The RB could have placed JS in accordance with Hampshire's statement of special educational needs. In which case Hethersett School would have net the criteria. Instead, at VK's request, and faced with a mass of information and a child with complex and persistent needs, the RB carried out a statutory assessment. On completion of the assessment they considered VK's choice of school. They named Hethersett School in the statement. VK was also afforded details of the schools in her area.
c. The process of identifying an appropriate school for JS did by necessity take time in view of the extensive information that has to be assimilated, assessed and commissioned.
d. We are satisfied from the evidence presented to us that the reason for JS's treatment, in relation to both complaints were his complex and persistent needs relating to his emotional, social, medical and educational difficulties.
e. Faced with the mass of information, and with the agreement of VK the LEA carried out a reassessment and offered the VTS until a school had been identified and JS was ready to attend.
f. VTS was offered initially until a school was identified and once identified until JS was ready to attend. Following the assessment a school was identified and the small steps approach was adopted to ensure a successful re-integration into mainstream school. We are satisfied that JS could not cope with group VTS.
(iii) Did the reason relate to JS's disability?
g. We are not persuaded by VK that the treatment JS received related solely to his disability. JS's disability contributed to the tapestry of JS's special educational needs but was not fundamental to his treatment.
h. It was appropriate, in view of JS's complex needs, not to place him at Wayland School but to carry out an assessment. Once a school was identified, because of JS's SEN difficulties, he was gradually introduced to the school.
i. Moreover, to have introduced him more quickly, may have jeopardised his re-integration into the mainstream school. It is quite clear that all pupils, whether disabled or not receive the same level of VTS, unless they have been excluded from school or are at Key Stage 4. He was not included in the group sessions as the RB considered such a placement may have jeopardised the small steps approach.
(iv) If so, would the RB have treated in the same way someone to whom that reason did not apply?
j. JS's disability contributed to his special educational needs. We had regard to "M School v CC, PC and another  EWHC 3045". On the basis of this decision we are satisfied that a pupil without JS's difficulties would not have been treated in the same way. The very reason for his treatment was his complex special educational needs, including his disability and particularly his history of school attendance and school phobia.
(v) Was the treatment justified?
k. We had regard to Jones v Post Office  EWCA Civ 558. We are satisfied that the RB treatment was entirely justified given JS's complex social, emotional, physical, medical and educational history.
l. We are satisfied that JS was not discriminated against within the meaning of the DDA.
MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. I am grateful for all the corrections we see, including Mr Grodzinski's comments, which have been taken into account. For the reasons set out, the decision of the SENDIST will be quashed.
MR GRODZINSKI: My Lord, I am grateful. I prepared, with the collaboration of the other counsel, a draft order. Can I hand it up, my Lord? (Handed).
MR JUSTICE STANLEY BURNTON: Certainly. Can I apologise that you were all kept waiting, as indeed I was. There we are.
MR GRODZINSKI: Can I deal with it in turn. Paragraph 1 obviously reflects your Lordship's judgment. Paragraph 2, we were conscious of your Lordship's judgment at the end of the judgment in relation to what might be gained. Can I say that my client is in hospital at the moment. We have not had the chance of communicating the substance of your Lordship's judgment to her, and therefore I have no express introductions.
Nonetheless, I am fairly persuaded that she would at least want the right to have the matter remitted. Whether she avails herself of that right in due course after careful reflection is a different matter. But now that the order has been quashed she has, in my submission the right to have the matter considered by the tribunal --
MR JUSTICE STANLEY BURNTON: On the face of things, she is entitled to apply for declaration.
MR GRODZINSKI: My Lord, yes. As I say --
MR JUSTICE STANLEY BURNTON: For reasons I gave, in circumstances where it is all past and there is an ongoing relationship between the parties, or there should be, whether it is wise to pursue that is something I doubt. Sometimes one may have a right, but it is more damaging to pursue it than not to.
MR GRODZINSKI: My Lord, as I say, she will bear that in mind. I do not think my learned friends resist paragraph 2; they agree to it.
MS OLLEY: My Lord, we do not resist, but we do echo your Lordship's concerns as set out in paragraph 82 of the judgment about whether it is worth going ahead.
MR JUSTICE STANLEY BURNTON: Whether it is wise.
MS OLLEY: Yes, and in view of the fact that focusing on J, perhaps the co-operation between the claimant and Norfolk ...
MR JUSTICE STANLEY BURNTON: It was good to see the evidence that the appellant's son is doing well, or was doing well, although I understand there were issues that were not before me. Anyway, as far as the SENDIST was concerned, he was doing well. There we are.
MR GRODZINSKI: There we are. My Lord, paragraph 3, I have left the costs in square brackets. Can I explain the position. The second and first respondents are agreed between them that the first respondents should pay the entirety of the costs. We are neutral on who should pay, whether it should be them jointly or just Norfolk. The relevant principles, I am sure your Lordship probably knows already, are set out in a relatively recent decision of the Court of Appeal. I have a copy of it for your Lordship.
MR JUSTICE STANLEY BURNTON: What is the issue between you on costs?
MR GRODZINSKI: There is no issue. I and those instructing me thought it best to leave the matter open to your Lordship's judgment, to decide whether it ought to be simply Norfolk or some reflection of both.
MS OLLEY: Your Lordship will find there our version of the draft order as well.
MR JUSTICE STANLEY BURNTON: I see. I assumed they were the same thing.
MR GRODZINSKI: One simply leaves it open, the other says the first respondent.
MR JUSTICE STANLEY BURNTON: It is completely for -- there is no implication so far as recovery.
MR GRODZINSKI: It has no implications as far as probable final recovery. In terms of speed of recovery from different parties, it may well do. But that is not the matter I say your Lordship needs --
MR JUSTICE STANLEY BURNTON: What does the Court of Appeal say in this case?
MR GRODZINSKI: The Court of Appeal says in a nutshell that the established practice is to make no order for costs against an inferior tribunal which does not appear before it, except where there is a flagrant instance of improper behaviour. Well, I obviously do not allege that.
The established practice is to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way as to make it an active party to litigation as if it were a party; in the normal course, costs follow the event. So the question for your Lordship is whether by intervening in the limited way that they did, they became an active party. The only point there is they sought to defend the decision on substantive grounds, albeit in one limited paragraph of their skeleton argument. So, my Lord, that is the principle.
MR JUSTICE STANLEY BURNTON: Those are your submissions.
MR GRODZINSKI: Those are my submissions, yes.
MR JUSTICE STANLEY BURNTON: I do not propose to make an order against the tribunal, having regard to the limited part it played in the proceedings.
MR GRODZINSKI: My Lord, paragraph 4 is simply the usual order; and then I think -- well, there is not a paragraph 5, but my learned friend representing the Norfolk County Council wishes to make an application in terms of -- he cannot make an application for leave to appeal because this is the second legal appeal, but he wishes simply to raise a matter for your Lordship's attention.
MR CORNWELL: My Lord, as my learned friend has indicated, this is a second appeal, and therefore falls under Section 55 of the Access to Justice Act which means that permission can only be granted by the Court of Appeal to appeal --
MR JUSTICE STANLEY BURNTON: What is the issue on which you want leave to appeal?
MR CORNWELL: I do not want leave to appeal from this court, because your Lordship cannot grant it. I am simply flagging up the issue. What I do want to ask for is an extension of time under Rule 52.42A.
MR JUSTICE STANLEY BURNTON: I can grant an extension.
MR CORNWELL: Extension of time for 28 days to file the notice of appeal.
MR JUSTICE STANLEY BURNTON: Any objection to that?
MR GRODZINSKI: None, my Lord. All I will do is make a cross application. Obviously I cannot appeal now. In the event that an application is made by the respondents, I would ask for a further 21 days to put in any cross appeal.
MR JUSTICE STANLEY BURNTON: Sounds like a contentious judgment.
MR GRODZINSKI: Just to identify, it is your Lordship's point on whether resources can be a relevant factor in the comparative or justification exercise.
MR JUSTICE STANLEY BURNTON: If I am right about it being about the comparison. I thought I should have made it clear, I revised my judgment, you will see when you read it, as a result of what you said and I accepted your comments in part and dealt more fully with the reasons for choosing children in general.
MR GRODZINSKI: It may be that that --
MR JUSTICE STANLEY BURNTON: If that is right, resources clearly are relevant, I have no difficulty in extending your time unless there is an objection to that course.
MR CORNWELL: Of course not, my Lord.
MR JUSTICE STANLEY BURNTON: And what is the issue that Norfolk wants leave to appeal, just out of interest?
MR CORNWELL: We have not been able to take full instructions, but I understand the argument would be that the Court of Appeal should look at law in these issues, your Lordship recognises that there are some important issues. Once the law is clear and one looks at again at the reasons that were given, those reasons are adequate reasons. That is the first issue. The second is the point about whether there should be remission in the case of inadequate reasons.
MR JUSTICE STANLEY BURNTON: Those are --
MR CORNWELL: As I say, instructions have not been taken.
MR JUSTICE STANLEY BURNTON: I still retain an interest in the law. Is there anything else I can do for you?