England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2008

Mr Justice Blair:

1. This is a claim by the parents of a boy born on 20 February 2003 to judicially review a decision of the London Borough of Enfield to place the boy on the Child Protection Register by reason of neglect. The mother is the first Claimant, and the father is the second Claimant. I shall refer to the boy as "T". The decision is said to have been unreasonable in the Wednesbury sense, and it is said that the wrong test was applied. There is also an issue as to whether the complaints procedure that is available in such cases provided an alternative remedy so as to preclude judicial review.
2. The decision was taken at a Child Protection Conference held on 27 January 2006. On 27 April 2006, these judicial review proceedings were bought. Following a further review of his position, the child was removed from the register on 18 July 2006. On 12 October 2006, permission to apply was nevertheless granted on a paper application. I was originally concerned that the claim might now be considered academic, but I accept the point made by Ms Amanda Weston who appeared for the Claimants that the matter is far from academic so far as they are concerned, even though T is no longer on the register. However it may be noted that the fact that the case is being heard in July 2008 is a reflection in part of the pressure on the time of the Administrative Court, but also of the fact that the urgency has gone out of the matter.

The background to the decision

3. Before coming to the facts, I will set out the background under which a Child Protection Conference makes its decisions. By section 47 of the Children's Act 1989, a local authority has a duty to investigate when it has reasonable cause to suspect that a child in its area is suffering, or likely to suffer, significant harm. There is no dispute that this duty was engaged in the present case in circumstances that I shall describe. The Defendant local authority proceeded under 1999 guidelines issued by the Department of Health, which are called "Working together to safeguard children". Again, there is no dispute that it was correct to do so. The starting point is contained in paragraph 1.5:

"In a great majority of cases, it should be the decision of parents when to ask for help and advice on their children's care and upbringing. Only in exceptional cases should there be compulsory intervention in family life: for example where this is necessary to safeguard a child from significant harm. Such intervention should – provided that this is consistent with the safety and welfare of the child – support families in making their own plans for the welfare and protection of their children."

4. The guidelines go on to define abuse and neglect. Neglect, which is the relevant concept in this case, is the "…persistent failure to meet a child's basic physical and/or psychological needs, likely to result in the serious impairment in a child's health or development. It may involve a parent or carer failing to provide adequate food, shelter and clothing, failing to protect a child from physical harm or danger, or the failure to ensure access to appropriate medical care or treatment. It may also include neglect of, or unresponsiveness to, a child's basic emotional needs."
5. Paragraph 5 of the guidelines sets out procedures for the handling of individual cases, depending on the facts of the case in question. Given the facts of the present case, the procedure adopted involved the convening of an initial Child Protection Conference on 17 January 2006. The aim of such a conference is to enable those professionals most involved with the child and family, and the family themselves, to assess all relevant information and plan how to safeguard the child and promote his welfare (paragraphs 5.52 and 5.53). The guidelines stipulate that there is to be an independent chair (paragraph 5.59). Paragraph 5.64 spells out the relevant question when determining whether to register a child:

"Is the child at continuing risk of significant harm?"

6. The Child Protection Register is provided for as follows:

"The Child Protection Register

5.99 A central register should be maintained for each area covered by a social services department. The register should list all the children resident in the area (including those who have been placed there by another local authority or agency) who are considered to be at continuing risk of significant harm, and for whom there is a child protection plan.

5.100 The principal purpose of the register is to make agencies and professionals aware of those children who are judged to be at continuing risk or significant harm and in need of active safeguarding. Consequently, it is important that agencies and professionals who have concerns about a child are able to make enquires of the register. It is essential that both police and health professionals have access to the register both in and outside office hours.

5.101 Children should be registered under one or more of the categories of physical, emotional, or sexual abuse or neglect, according a decision by the chair of the child protection conference. The categories used for registration help indicate to those consulting the register the nature of presenting concerns. Recording information in this way also allows for the collation and analysis of information locally and nationally. The category selected should reflect all the information obtained in the course of S.47 enquiries and subsequent analysis and should not just relate to one or more abusive incidents."

Provision is also made for regular reviews of the first Child Protection Conference. Every review should consider explicitly whether the child continues to be at risk of significant harm and if not then his name may be removed from the register (paragraph 5.91). That was what happened in this case, leading as I have said to the de-registration of T on 18 July 2006.

7. The local authority also proceeded, and again it is common ground correctly proceeded, under the July 2003 London child protection procedures. There is contained in paragraph 4.1.12 a definition of neglect which is consistent with that of the guidance. However the significance of the procedures for present purposes is that they contain a procedure for complaints to which I shall have to return.

The facts

8. That being the framework of the decision making, I come to the facts in a little more detail. It is right to say that the facts are as Ms Weston put it "dense", and as her skeleton argument makes plain, in a considerable number of instances the Claimants take issue with the view of the facts taken by the various professionals involved. As Mr Harrop-Griffiths for the Local Authority pointed out, what matters for the purposes of this judicial review claim is the information available at the Child Protection Conference. In any case, the account below should not be taken to be complete.
9. At his birth on 20 February 2003, T weighed 3.1kgs (6lb 14oz). According to a report prepared by a child protection nurse for the Child Protection Conference from various records, there were concerns about initial poor weight gain which prompted home visits. At that time, the Claimants (who are in regular contact but do not live together) were in the Waltham Forest area. Records indicate a failure to attend various appointments concerned with the child's progress. Ms Weston accepted that there were various failed appointments, but said that there were good reasons why appointments were not kept, including the burden of looking after the Claimants' older child (who is autistic).
10. In May 2004, mother and children moved to Enfield. The child protection nurse's report says that the first time T was seen face to face was June 2005, and the Health Visitor was shocked at T's appearance. She sets out a number of failures thereafter to keep in touch with the Health Visitor. The Claimants respond that they can not be faulted when they were not at home and visits were made unannounced. In her statement, T's mother also explains the difficulties she experienced in finding a GP who would take her family on, which did not finally happen until August 2005.
11. A chronology provided by the Claimants sets out the main events which happened in the run up to the Child Protection Conference. In July 2005, his mother took T to a paediatric clinic, raising concerns (among other things) about the size of the child. The reports speaks of a review in three months time, a point relied upon by Ms Weston, who submits that this visit was at the mother's initiative, and nothing was said about any urgent need of care.
12. A health visitor on 2 November 2005 mentions concerns about the size of the child, recording that at times she felt that his parents did not realise the severity of his physical condition. He was seen again on 9 November 2005 by a dietician, a follow up appointment being booked for two months to review progress and weight gain. Ms Weston submits that this shows that the Claimants were not to know the urgency of his condition, and were in fact concerned parents anxious for help going from professional to professional seeking it.
13. However, it is common ground that by December the boy's condition had in fact become very grave. On the 21 December 2005, his mother brought him to the hospital where he was seen by a consultant paediatrician. According to his mother, she was told that he needed to be "force fed" and put on a drip, and that if he did not receive this treatment, he would die. She says that prior to that time, no one had given her any inkling that things were so serious.
14. The consultant paediatrician referred the matter that day urgently to Enfield social services. She recorded that the child "has severe malnutrition and nutritional rickets causing severe delays in development". She refers to "severe failure to thrive – wt 8.3kgs!!!". The evidence shows that T's expected weight at this age this would have been 12.5kg. His actual weight is described in the witness statement of Pauline Arthur, the reviewing officer who chaired the Child Protection Conference as a "perilously low weight", and I do not think that is in dispute.
15. In circumstances which are not entirely clear on the evidence, his mother took T back home that day. Her case is that there was no question of his forcible removal from the hospital, and indeed it was agreed that he could be taken home and that the nurse would attend the next day. In fact what happened next day was that two social workers and two plain clothed police officers visited his mother at home and went with her and her partner and the child to the hospital, where he was admitted on a voluntary basis.
16. The first Claimant has made a number of complaints about T's treatment in hospital, including that fact that he was initially put on a milk-based food to which he was intolerant. It appears that a non-milk based feed was substituted shortly afterwards. At all events he was well enough to be allowed to go home during the day from 20 January 2006, and was discharged from hospital on 6 February 2006.
17. Before coming to what happened at the Child Protection Conference, there is one other matter which is important to the Claimants and which I should mention. The first Claimant explained in her witness statement that the professionals dealing with her case had "some wrong information [that] had been given by someone that I and my partner are Jehovah's Witnesses. This is completely wrong". It is in fact right to say that there is material that suggests that T's father is a Jehovah's Witness. However their case is that a conscientious attempt on their part to obtain treatment and medical attention for their son was abruptly and wrongly viewed in a bad light, and that this happened from the time when it was wrongly assumed that they were Jehovah's Witnesses. It is to be noted however that by 10 January 2006, the records show the Claimants being described as having "eclectic beliefs" and not being "Jehovah's Witnesses as thought". More important, the minutes of the Child Protection Conference, including some detailed notes taken by the Claimants' legal representative who was with them at the conference, show that the subject of their religious beliefs does not appear to have been a live one to any extent by that time, or have any appreciable effect on the decision making process.

The Child Protection Conference

18. According to Ms Arthur who chaired it, the Child Protection Conference on 27 January 2006 lasted approximately three and half hours, which was longer than any other that she had chaired. The Claimants both attended accompanied as I have indicated by someone from their solicitors' firm. Along with them, there were twelve other people present. The minutes record their position. They were social workers, nurses, and doctors among others. The minutes, and the lawyer's notes, show a wide ranging discussion. There are references to the material on which the decision was reached, including various reports which had been submitted, as well as to oral contributions by those present, including of course the Claimants, T's mother and father.
19. The Chair is recorded as stating that she could not comprehend how seemingly conscientious parents could miss a grossly underweight child. She said that there had been numerous failed appointments and the parents had not been proactive with the child. She made it clear that the conference would not be considering the position of T's brother. At the end there appears the outcome in the following terms:

"DECISION

It was unanimously agreed that [the child's] name was placed on the Enfield Child Protection Register under the category of neglect".

There followed details of a protection plan and a contingency plan, and a review date was set.

20. To complete the factual account, a review meeting was held on 5 April 2006. Because of a complaint that the Claimants had made against Ms Arthur, there was a different chair. On that occasion, the decision was taken to keep the child's name on the register.

The Claimants' case

21. Against that background, I come to consider the Claimants' case for judicial review. There was a written skeleton argument dated 17 July 2008 of which I have taken account, and in Ms Weston's oral submissions, two main arguments were advanced. The first is that no rational authority could have concluded that this was a case of neglect (the Wednesbury point). The case was (in summary) as follows. There was no evidence that the Claimants had been neglecting this child. On the contrary, it was submitted that the evidence shows the Claimants actively seeking medical help. The otherwise inexplicable decision to hold an investigation could only be explained on account of what was described as the "hare that was set running" as regards the Claimants' religious beliefs. Faced with a dangerously ill child, the Defendant local authority over reacted. The visit by the police to the family home was particularly distressing, and quite unnecessary, because the Claimants were in any event intent on seeking medical help, and merely subjected them to an additionally distressing experience.
22. Ms Weston's second argument was one of procedural unfairness. She submitted that the Claimant's views were not properly taken into account at the Child Protection Conference, that there was no evidential basis for the decision reached, and that the fact that all professionals present were in favour of placing T on the register is explained by bullying by the Chair. In oral submissions, her main point was that the conference had approached the matter by applying the wrong test. It failed, she submitted, to ask whether the parents posed any prospective risk of neglect so that the child was at continuing risk of significant harm. Reliance is placed on a passage in Ms Arthur's statement to submit that the Chair wrongly adopted a two-stage test, deciding first whether to add the child's name to the register, and then under what category.

The correct approach

23. The correct legal approach to be taken by the Court in such a case is set out in the judgment of the Court of Appeal in the leading case of R v Harrow London Borough Council ex parte D [1990] Fam 133. In that case, the judge at first instance decided that the council's decision to make entries on the child abuse register was not unfair, unreasonable or contrary to natural justice, and therefore judicial review did not lie in respect of the decision. In a judgment given by Butler-Sloss LJ, the Court agreed with that conclusion (page 137H). But she went on to reject a contention by the council that judicial review does not lie at all in respect to such a decision. She said that, "If the decision to register can be shown to be utterly unreasonable, in principle I cannot see why an application to review this decision cannot lie" (page 138C). Butler-Sloss LJ went on to give guidance as to when judicial review would be appropriate:

"It would also seem that recourse to judicial review is likely to be, and undoubtedly ought to be, rare. Local authorities have laid on them by Parliament the specific duty of protection of children in their area. The case conference has a duty to make an assessment as to abuse and the abuser, if sufficient information is available. Of its nature, the mechanism of the case conference leading to the decision to place names on the register and the decision-making process is unstructured and informal. It is accepted by [counsel] that it is not a judicial process. It is part of a protection package for a child believed to have been a victim of abuse. Unlike other areas of judicial reviews, the considerations are not limited to the individual who may have been prejudiced and the tribunal or organisation being criticised. In this field, unusually, there is a third component of enormous importance – the welfare of the child which is the purpose of the entry in the register. In proceedings in which the child is the subject, his or her welfare is paramount.

In balancing adequate protection for the child and fairness to an adult, the interest of an adult may have to be placed second to the needs of the child. All concerned in this difficult and delicate area should be allowed to perform their task without looking over their shoulder all the time for the possible intervention of the court. The important power for the court to intervene should be kept very much in reserve, perhaps confined to the exceptional case which involves a point of principle which needs to be resolved, not only for the individual case but in general, so as to establish that registration is not being conducted in an unsatisfactory manner. In the normal case where criticism is made on an individual aspect of the procedure which does not raise any point of principle, leave should be refused. "

It follows therefore that recourse to judicial review should be rare in the field of child protection. In the context of community care assessments, a similar approach was recently taken by the Court of Appeal in R (Ireneschild) v. Lambeth London Borough Council [2007] EWCA Civ 234: see Hallett LJ at paragraph 44, citing Puhlhofer v. Hillingdon LBC [1986] AC 484, 518B-E as to the limits of the remedy of judicial review in such cases.

24. In cogent submissions, Ms Weston accepts this statement of principle, but submits that this is indeed an exceptional case justifying the Court's intervention. She points out that when a child becomes ill with rickets, alarm bells ring, a defensive attitude can be adopted, and assumptions can be made which should not be made. This was a case, she submits, in which the parents have done everything they could pursuant to the health advice they received from the professionals with whom they came into contact. They were seeking help, and the extent of the professionals' concerns about T's state was not communicated to them until the conference. There were measures to protect him which could and should have been taken short of registration on the Child Protection Register. (In her oral submissions, Ms Weston did not seek to develop the Article 8 point mentioned in her written submissions, which did not add anything of substance to her argument, since if the decision was lawful it would be a proportionate interference with the right to respect for the family life of the Claimants, and vice versa).
25. In my view however, the present case falls precisely within the reasoning in the R v Harrow London Borough Council ex parte D case that I have set out above. In reaching that conclusion, it is important to note that one of the reports before the conference records that, "It is clear that both parents love their children". I have no doubt that because of that love their feeling of grievance at the finding of neglect is deeply and genuinely felt. But the issue that I have to decide is not whether the Claimants did in fact neglect their son, but whether (to adopt Ms Weston's formulation in this respect) "there was no rational basis upon which the Defendant was entitled to conclude that the threshold for placement on the register in such category was met". As Mr Harrop-Griffiths put it, the Claimants "feel that they are not to blame for their son becoming so ill, but this issue is not for the Court to decide on. It can only look at the information available at the Child Protection Conference, consider how the decision was reached, and decide whether the Claimants have established that the decision to register was unlawful". He submits that they "do not begin to do so".
26. I agree with the Defendant in this regard. The material before the Child Protection Conference went considerably further than evidence of severe malnutrition and nutritional rickets, and could reasonably be taken to point at least in part to parental responsibility for the state the child was in. In my view, there was sufficient material to justify the decision that was reached by the local authority that registration was necessary to protect the child. There had been failures to keep appointments, and given that the deterioration in his health was due to malnutrition, it was open to the conference to find that this was caused by the Claimants' failure to be pro-active in securing appropriate medical attention, and that the child was at continuing risk of significant harm. It was as I have said a decision that reflected the unanimous view of all the professionals present at the conference. There is nothing in the minutes or the notes taken by the Claimants' legal representative that makes good the proposition that they were bullied by the Chair in that respect, and Ms Weston did not develop that suggestion in oral argument. The decision was confirmed by the April review under a different Chair. It was not an irrational decision. The first ground fails therefore.
27. For completeness on this part of the case, I should mention that Mr Harrop-Griffiths contended as an alternative argument that the judicial review claim only extended to the decision of 27 January 2006, and that he was entitled to rely on the decision of 5 April 2006 which was not challenged. Whilst it is correct that only the first decision is challenged in the claim form, I am in agreement with Ms Weston that the later decision should not be treated as freestanding for these purposes. But that does not affect the outcome on this part of the case.
28. As regards the second argument as to procedural unfairness, I have already indicated that the Claimants' views were properly taken into account at the conference, that there was a proper evidential basis for the decision reached, and that the bullying allegation made against the Chair is not made out. As to Ms Weston's main point, I am satisfied that the conference did not approach the matter by applying the wrong test. It may not be spelled out expressly, but I agree with Mr Harrop-Griffiths that the conference clearly had in mind the relevant question guidelines when determining whether to register a child namely, "Is the child at continuing risk of significant harm?" When the minutes are read fairly, it is plain that the conference was asking itself this question, and whether the case was one of neglect by his parents. In this regard, I think that the Claimants are reading too much into the language used in paragraph 4 of Ms Arthur's statement. I do not see this as adopting an erroneous test, and in any case she says later on that she was addressing her mind to the relevant question, albeit as defined in slightly different language in the London child protection procedures. No criticism can be made of the process in that respect.

Alternative remedy

29. Those conclusions are sufficient to decide the case in favour of the Defendant authority. But it is to be noted that the authority complies with the London child protection procedures which at the time (I am told that they have since changed) allowed for a two-stage complaint procedure. The first stage was exploration of the complaints by the Conference Chair. The second stage was a formal consideration by the complaints manager if, after stage one, the complainant remained dissatisfied. This provided for the convening of a panel to consider the complaint, which had to recommend that a Child Protection Conference was re-convened under a different chair if procedures and protocols had not been followed, or they were but the original decision was unreasonable. The question arises whether the Court in its discretion should withhold relief where the Claimants could have pursued an alternative remedy.
30. In R v Hampshire County Council ex parte H [1999] 2 FLR 359, it was held that there was a lack of material to justify the decision of child protection conference, but relief was not granted on the ground (among others) that the Claimants had an alternative remedy. Giving the judgment of the Court of Appeal, Butler-Sloss LJ said at page 366C-E:

"There were adequate alternative remedies to judicial review available to the applicants. Those remedies were quicker, cheaper and more satisfactory. The appeal and complaints procedures in Hampshire were well able to correct procedural irregularities and to give consistent and informed advice on good practice in sharing and running case conferences and were far more suitable to do so than the court hearing a judicial application. The criticisms of the case conference, other than the lack of material upon which to reach a decision, taken at the highest and cumulatively, did not amount to matters in respect of which judicial review should be available. They were the subject of an appeal and that was the appropriate procedure to adopt."

31. The Claimants in fact embarked on the complaints procedure by letter of 14 February 2006. The authority responded to the effect that it would arrange a meeting between the Claimants and Ms Arthur at stage one of the procedure, and an exploratory meeting did take place. However after sending a number of requests for clarification, it seems that the Claimants were dissatisfied with the ambit of the compliant procedure, and in particular point to a passage in the London child protection procedures to the effect of "all parties must be made aware that this complaint process cannot itself change a registration decision and that during the course of a complaint's consideration, the decision made by the conference stands. The end result for a complainant will be either that a conference is reconvened under a different chair, that a review conference is brought forward or that it confirms the status quo". The Claimants took the view that this was inadequate, on the basis that even if the complaint was successful, the result would not be a quashing of the original registration. As it was put in their written submissions, they "sought for the erroneous conclusions as to their parenting to be corrected in full and for a permanent record that the conclusion that T was at risk of neglect expunged". So the complaint was not pursued, and these judicial review proceedings were commenced instead.
32. I do not think that this objection was justified. If the complaint had been upheld, that could have resulted in the matter being reconsidered by a conference convened under a different chair. A decision in the complainants' favour might not have quashed the original registration in the technical sense, but it could have resulted in their vindication. It is plainly crucial in such a serious matter that the alternative remedy should be an effective one, but in my view the present case falls squarely within the passage I have cited from the Hampshire County Council case. In my judgment, the complaints procedure should have been followed in this case, rather than judicial review proceedings.
33. In the result, the claim for judicial review is dismissed. I am grateful to both parties for their assistance.