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
		21st July 2008

1. MR JUSTICE BLAIR: This is an application for judicial review, permission having been granted on paper by Flaux J.
2. The claimant is serving a sentence for wounding with intent to cause grievous bodily harm. The first defendant is the local authority within whose area he lives. The second defendant is the Parole Board.
3. The claimant seeks to judicially review a failure by the local authority to comply with directions given by the Parole Board and the Parole Board's decision to refuse to release the claimant.
4. There was a dispute at the outset of the hearing as to documents. That was resolved by omitting a few of those in the bundles originally prepared by the claimant. I note for the record that the parties took me through the index identifying those that were to be omitted, which included two witness statements.
5. The facts are as follows. The claimant was born on 22nd July 1991 and will be 17 in a few days' time. On 23rd January 2006, when he was 14, he stabbed another boy in the neck with a kitchen knife, nearly severing his artery. He had a history of violence, including towards his mother. He pleaded guilty to the grievous bodily harm charge and on 4th May 2006 was sentenced to 3 years' detention, with an extension period of 3 years under section 228 of the Criminal Justice Act 2003.
6. Regrettably, the judge's sentencing remarks are not included in the papers before me, but it follows from the fact that an extended sentence was imposed that the judge considered that there was a significant risk to members of the public of serious harm occasioned by the commission by the claimant of further offences.
7. Young offenders serving an extended sentence under section 228 of the 2003 Act are released in accordance with the provisions of section 247. Section 247 provides that, once half the appropriate custodial term has been served, the prisoner's case is to be referred to the Parole Board. If the Parole Board directs release, the prisoner must be released on licence. Section 247(3) states that:

"The Parole Board may not give a direction under subsection (2) [that is, as regards release] unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."

8. The claimant has served most of his sentence in local authority secure accommodation at Gladstone House in Liverpool. Although the material before the court is not complete, it is plain that the claimant has done well at Gladstone House and has responded positively. He has now been moved to Red Bank Community Home in Newton-le-Willows, which is a secure children home owned by St Helens Council.
9. Although it is the local authority's understanding that he will serve the remainder of his sentence at Red Bank, the material before the court in this regard goes both ways. Emails I have been shown suggest that it is at least a possibility that he may be moved to a young offender institution at some point.
10. The claimant became eligible for parole on 25th July 2007. On 28th September 2007 the Parole Board refused parole. The claimant challenged that decision and was granted an oral hearing.
11. I will have to come back to the detail, but in brief an oral hearing took place on 21st February 2008. It was adjourned until 31st March. Among other things, the Parole Board wanted a "more robust release plan" and asked the social worker to "explore the possibility of initial release to foster parents with experience of young offenders." But in circumstances that are at the heart of this application, that possibility did not materialise and on 31st March 2008 the Parole Board decided not to award parole, noting that the claimant was "assessed as presenting a medium to high risk of reoffending and a high risk of harm", and concluding that:

"Parole is refused because the Panel considers the risk remains too high to be safely managed within the parameters of the proposed risk management plan."

He will be eligible for automatic release on 23rd January 2009.

12. In what were attractively presented submissions, the basic point made by Mr Hugh Southey, who has appeared for the claimant, is that the claimant has been wrongly deprived of the possibility of foster care, with the consequence that he has lost the chance of parole. He seeks an order quashing the decision of the Parole Board of 31st March 2008, and a declaration that the social services department of the first defendant failed unlawfully to investigate the option of foster care.
13. I am not sure Mr Southey would accept this, but I think it is fair to say that his argument has evolved somewhat over the course of the case and it is important to be clear how he puts it. He does not submit, as may have been suggested in his grounds, that the local authority was under a duty to provide the claimant with foster care. He does, however, submit that there was a duty on the local authority to take reasonable steps to explore the possibility of initial release to foster parents with experience of young offenders. He accepts that had there been an adequate investigation, that would have been an end of it. But that duty, he says, was not complied with. In that situation, he submits, the Parole Board should not have reached a decision on 31st March, but should have adjourned the hearing again so as to have proper information on which to take a decision.
14. In oral argument Miss Joanne Clement, for the local authority, accepted that the local authority had to comply with the Parole Board's directions in that regard. Her point was that it did in fact do so. That being so, it does not greatly matter for the purposes of this hearing the route by which the duty on the local authority which Mr Southey argues for arises. However, I should say that in my view the duty arises as a matter of domestic public law rather than under Article 5(4) of the European Convention on Human Rights, which is his alternative route: see R (K) v Camden and Islington Health Authority [2002] QB 198 at paragraph 52, per Sedley LJ; and R (H) v Secretary of State for the Home Department [2004] 2 AC 253 at paragraph 29, per Lord Bingham.
15. I agree with Miss Clement that the effect of the Camden and Islington Health Authority case is that any complaint about detention under Article 5 in the domestic courts lies against the organ of the state responsible for the detention, and not against a public authority in respect of a failure to comply with conditions imposed by the tribunal in question (see paragraphs 49-51 per Buxton LJ and paragraph 52 per Sedley LJ).
16. It follows from the passages I have referred to from these cases that the duty of compliance is not an absolute one, which is why I think Mr Southey was correct to formulate it in terms of taking "reasonable steps" in the way he did.
17. So I now come to examine the facts in more detail. The Parole Board convened on 21st February 2008 to reconsider the case for the claimant's release. Evidence was given supporting release, and it was the view of most of the professionals that upon release the claimant should return to the family home to live with his mother and brothers: see paragraphs 2 to 7 of the Parole Board's decision letter of 31st March 2008, and paragraph 27 of the witness statement of Mr Boyce, who was an Operational Director of Specialist Services within the Social Care Department of Halton Borough Council.
18. The hearing was however adjourned because, to quote from the Parole Board's letter of 3rd March 2008, it "required a more robust release plan which would allow gradual progression to a return to the family home and/or which could be used as a support if necessary." It was also concerned that social services and YOT had not fully integrated their approaches and proposals.
19. Accordingly, by the letter of 3rd March 2008 the Parole Board gave certain directions:

"1. The social worker to:

a) explore the possibility of initial release to foster parents with experience of young offenders

b) give details of proposed back-up plan should mental health problems become apparent

c) give details of proposed back up plans should accommodation in the family home or foster placement if there is one, break down

d) report to the Panel as to how Social Services has had input into the risk management plan and proposes to continue to have input into the management of risk.

The social worker's information to be supplied to all parties no later than 14/3/08. If the social worker is not able to comply with the above directions the Director of Children's Services should attend the next hearing to assist in the proposals for risk management.

2. The YOT worker to:

a) explore with YJB the possibility of mobility leaves to the family home between now and the resumed hearing with reports on progress

b) arrange weekly mentoring visits and report on progress

c) discuss MAPPA registration with MAPPA co-ordinator, Iain Smith from Cheshire Probation

d) provide a risk assessment of any proposals by Social Services for foster placement either as an initial release plan or as a contingency plan.

YOT worker's reports to be provided to all parties no later than 25/3/08."

20. A central submission made by the claimant is that this letter made it clear that the Parole Board was not satisfied with the proposal that the claimant should be released to his home address. Instead, it is submitted that it is clear that an offer of foster care was what was required to enable the claimant to be released. The alternative was continued detention.
21. However, I agree with the defendants that this is not a fair reading of the letter of 3rd March 2008. They submit, in my view rightly, that the letter, together with the remarks made in the decision of 31st March 2008, show that the Parole Board had not reached any concluded view at this point. It had not concluded that release would not be ordered to the family home; nor had it concluded that release would be ordered to foster care. As Miss Deok-Joo Rhee, who appeared for the Parole Board, put it in her written submissions, the most that can be said is that at that stage neither option, including the possibility of release to foster care, if available, had been ruled out.
22. At all events, a response to the Parole Board's directions was provided by Lisa Ashcroft, who was the claimant's social worker employed by the second defendant, in a lengthy and careful report dated 14th March 2008.
23. As regards the direction that is crucial in this case, namely to "explore the possibility of initial release to foster parents with experience of young offenders", she said that:

"The Local Authority has carried out an Assessment of [the claimant's] needs and it is our view that [the claimant's] needs are best met by a placement with the family upon release from detention. As directed, the Local Authority has explored the possibility of release to foster parents and have concluded that, it would not be appropriate for the following reasons

24. The social worker went on to provide a number of reasons why it was best for the claimant to return to his family. Specifically as regards fostering, she said that:

"Placement with foster carers would require the building up of a new relationship within unfamiliar surroundings sufficient for [the claimant] to accept appropriate guidance. This process is not a quick one, which is why it is normally undertaken with younger children. There is also a risk that such a placement would disrupt the consolidation of the primary relationship with his family, which will be crucial for the longer term.

In terms of resources, Halton currently has no carers specifically trained to deal with young people at risk of or leaving custody, although they do of course have experience of caring for children who, from time to time, commit offences. The number of Children in Care needing a foster placement requires Halton's carers to take responsibility for more than one child. This means that the impact of a new placement, particularly for an adolescent high-risk offender, requires careful assessment to ensure that younger children in placement who are already highly vulnerable are not exposed to further risk. The safety of carers would also need to be assessed.

Enquiries have therefore been made of three Independent Fostering Agencies with whom Halton contract from time-to-time for services it cannot provide from its own resources. There is an increased likelihood when using Independent Fostering Agencies that any placement identified is outside the Halton area. This factor brings difficulties to a multi agency Support Plan, as Youth Offending Team and Health Service input would need to transfer to colleagues in the new area, which can impact on the effective implementation. None of these Independent Fostering Agencies run schemes specifically for young offenders and two were not prepared to begin any search for suitable carers without full details and extensive Risk Assessment. One agency indicated a possible carer currently undergoing the approval process, but again was unwilling to take matters forward without further details.

The Local Authority would not wish to compromise its working relationship with the Independent Fostering Agencies by leading these agencies to believe that it will take up any placement which they might identify, and has therefore not pursued the matter further than this."

25. The social worker then gave her response to the other directions, gave details of a proposed back-up plan should mental health problems become apparent, and gave details of a "proposed back up plan should accommodation in family home or foster placement, if there is one, were to break down." If the claimant continued to commit violence offences, then it was understood that this would constitute grounds for recall to custody.
26. If the family placement were to breakdown in circumstances where a duty under section 20 of the Children Act 1989 arose, accommodation would be provided. But it was said for the reasons given, it would be unlikely that the claimant would be moved to foster care placement. Instead, it would be more likely that he would be placed in one of three hostels, which the author of the report identified.
27. As regards these hostels, particular concerns would be sought to be addressed by the possibility of tagging and monitoring, and the existence of guides and rules within the hostel regime.
28. Finally, she gave details of how social services had had input into the risk management plan, and had proposed to continue that input in response to the last of the Parole Board's directions.
29. In the light of this, Mr Southey for the claimant submits that the local authority failed to take reasonable steps to explore the possibility of initial release to foster parents. His fundamental point is that the local authority failed to make the correct comparison. He submits that the local authority was comparing release to foster care with release to home, whereas the choice was in fact between release to foster care or continued detention.
30. With that comparison in mind, Mr Southey submits it should have been clear that release to foster care was a preferable option, particularly given the claimant's age and the possibility that he might be detained at some point in a young offender institution. He also criticises aspects of the local authority's enquiries, submitting that the matter could have been taken further with the agencies than in the event it was.
31. As Mr Southey points out, when it gave its decision on 31st March, the Parole Board stated that it had requested that social services explore the possibility of initial release to foster parents in order to enable a gradual transition to the home environment, but that social services "failed fully to consider this option, having concluded that fostering was not suitable. As a result they did not provide any of the independent fostering agencies with details in order to undertake an approvals process."
32. However, I bear in mind that before me the Parole Board has made it clear that it does not consider that the local authority failed to comply with its direction. Miss Deok-Joo Rhee submitted that the fact that it did not carry out these further steps does not equate to a finding that it failed as matter of law to comply with the direction. As she put it, the Parole Board does not question the authority's assessment as to the appropriateness of foster care. This assessment is for the authority in the exercise of its own functions. It is not for the Parole Board to form a view as to whether or not foster placement should be provided to the claimant within the context of the authority's own and separate statutory duties.
33. Likewise, the local authority itself submits that it did comply with the directions of the Parole Board. The direction in relation to foster parents was to "explore the possibility" of initial release to foster parents, not to identify or put forward a foster care placement as part of the release plan. The local authority did explore further the possibility of release to foster parents, Miss Clement submits, but nothing it discovered in the course of its enquiries, whether of its own foster parents or through contact with independent fostering agencies, altered its view that a foster care placement was not suitable or appropriate for the claimant.
34. Having concluded that foster care was not suitable, it could not be provided to the claimant: see Regulation 33 of the Fostering Services Regulations 2002. As such, she submits, there would have been nothing to be gained by taking matters further.
35. In my view this submission is correct. There is a considerable body of evidence to support it and none to controvert it. The evidence from Mr Boyce, as well as that of Hilary Barker, who was Lisa Ashcroft's line manager, together with the letter of 14th March 2008 itself, show that the local authority carefully explored the possibility of release to foster parents, albeit it came back to its original position, namely that fostering was unsuitable as an option in the claimant's case.
36. For reasons I have already given, I reject the contention that at this stage the only options were fostering or continued detention. It is important to note, therefore, that between the hearing on 21st February 2008 and the hearing on 31st March 2008 the claimant had five home visits, that is to say mobilities, and that the outcome was a positive one. Release home must have been a real option. In the result, Mr Southey's argument fails on the facts. I am satisfied that the local authority took reasonable steps, as it was required to, to explore the possibility of fostering.
37. On 31st March 2008 the Parole Board resumed its hearing. It notes in the decision letter that it had further material as result of its directions, and says that:

"Ms Ashcroft had produced an updated report but the idea of forensic foster parents had not been fully explored although initial enquiries were made."

It records that the Secretary of State had also sent representations. Further oral evidence was taken.

38. The decision letter says:

"12. Ms Furby [from the Youth Offending Team] stated that your risk of reoffending was assessed as medium to high and the risk of harm as high. However, she considered that if you continued in your current behaviour there was a possibility of a reduction in risk. In the community you would be able to undertake work on anger management, peer pressure and other issues that come up. You would have the support of Social services, your mentor and your family in addition to the YOT worker. She now considered that release to foster parents initially would undermine the transition to home but viewed the period of adjournment as positive in that it had helped in the transition to the new home and given the opportunity for mobilities. She now had no concerns about you going directly home. From the way in which she had observed you getting on with your family she thought it unlikely a contingency plan would be needed. ...

13. Ms Barker, Principal Manager Young People's Team at Social services stated she did not consider foster parents would meet your needs. She said there was a shortage of people willing and capable of managing people of your age group and although initial enquiries had been made through independent agencies the details had not been forwarded to them.

14. Your mother told the Panel that the additional mobilities had gone really well and your brothers were also looking forward to you coming home. She considered you are now more mature than many people in their 20s. She has confidence that things will go well on your release.

15. The view submitted by the Secretary of State was that you did not meet the test for release. Despite the positive reports from mobility leaves the Secretary of State was not persuaded about the suitability of the release address given the nature of the index offence and the fact that you have assaulted your mother on a number of previous occasions. It was also noted that you have not completed accredited offending courses."

39. Having recorded the submissions made by the claimant's solicitor who had represented him at the hearing, the Panel set out its conclusions as follows:

"17. The Panel considered all the information before it as well as the evidence given at both oral hearings. It noted you were assessed as presenting a medium to high risk of reoffending and a high risk of harm. It carefully considered the case and gave full credit to you for the undoubted progress you have made. The Panel adjourned the case part heard on 21/2/08 because it was not satisfied with the release plan. In fact it had similar concerns to those now expressed by the Secretary of State. In concentrating primarily on the child centred approach with your well-being of prime concern, it is the view of the Panel that the issue of risk to others, including but not exclusively to your mother and siblings, appears to have been given insufficient weight. The Panel requested specifically that Social Services explore the possibility of initial release to foster parents in order to enable a gradual transition to the home environment. However, Social Services have failed fully to consider this option having concluded that fostering was not suitable. As a result they did not provide any of the independent fostering agencies with details in order to undertake an approval process. The Panel took into account the nature and circumstances of the index offence and your previous convictions and past assaultative behaviour in the family home including a threat to your mother with a knife. At the time of the pre-sentence report your mother acknowledged that she had been unable to exercise control over you for a number of years. Against these factors the Panel weighed your exemplary behaviour in custody and the progress you have made, the work you have done with Dr Rogers and the family engagement in that process, the beneficial effect of the change to Red Bank Community Home, the supervised mobilities you have undertaken since the adjournment and the benefits to you of early release. The Panel noted that all report writers recommend release now to the family home. Nevertheless the Panel remains concerned that this has to be viewed in the light of the static risk, the risks associated with the home address and the lack of significant, specific offence related work. Parole is refused because the Panel considers the risk remains too high to be safely managed within the parameters of the proposed risk management plan."

40. Mr Southey submits that the Parole Board was wrong to go ahead and decide the case on 31st March 2008. He submits that the Board was under a duty to ensure that it has sufficient information in its possession to take a proper decision. This, he submits, is particularly important in the case of a young person. For present purposes, that latter proposition was not disputed.
41. Mr Southey's submission is that, not being satisfied that it was safe to release him to his home, and not having been provided with adequate assistance as to the possibility of foster care, it was the duty of the Parole Board to adjourn the hearing again. The Board having failed to do so, he submits that its decision should be quashed. He submits that one is left with the impression that the local authority would potentially have reached a different conclusion as regards fostering in that eventuality had the alternative been detention.
42. A similar issue arose in the case of R (Omur Emiroylu) v Parole Board [2007] EWHC 2007 (Admin), a decision of Ouseley J. In that case Ouseley J said, at paragraph 20, as follows:

"In my judgment, the question is this: did the Parole Board act unlawfully in deciding not to adjourn or set an early review date for the purposes of considering its position in the light of a fresh Probation Service assessment? Could it reasonably take the view that it could come to a properly informed decision on risk without that material?"

In that case there had been no request for an adjournment for a fresh assessment. The position as I have said is analogous to the present case.

43. Ouseley J continued in paragraph 21 as follows:

"It is ... in my judgment, very difficult for a claimant, who, with the benefit of legal advice, has not suggested that a fresh assessment was required before or during the hearing, to complain that the Parole Board has not done that which it was not suggested it should do."

He went on to say in paragraph 22 that:

"... I recognise that it may not always be the conclusive answer. It will be relevant, in my judgment, for the Parole Board to look at its ability to reach a decision in the light of the information which it does have before it. The express stance of the parties would of course be important in that, but it would also have to reach a view about the importance of the factual issue now said to have changed, about what it obtained from the reports which it did have and what it might obtain from further reports. It seems to me clear, however, that the board did apply its mind to the question of whether any more was required, not just in the light of the parties' stance but in the light of the reports which it did have and the conclusions which it was contemplating arriving at."

44. The claimant accepts that he did not seek an adjournment. He submits that it was unrealistic to expect him to apply for an adjournment. An adjournment would have inevitably continued his detention and would also have amounted to a concession that his home address was unsuitable.
45. However, for the reasons given by Ouseley J, in my view it is "very difficult" for a legally represented claimant to challenge a decision of the Parole Board on the basis that the hearing should have been adjourned when no application for an adjournment was made at the time. But in any case, I agree with the defendants that the claimant's argument fails on the facts. This is a case where there already had been one adjournment for further information to be obtained. There was considerably more material before the Parole Board at the adjourned hearing than on the earlier occasion. The question for the Parole Board was whether it was satisfied that detention was no longer necessary for the protection of the public. This was plainly a difficult decision given — and it is good to be able to say this in the presence of the claimant — the progress that the claimant had been making. But it was a decision for the Parole Board and the Parole Board alone, and in my view it had done everything required of it to ensure that it had the material necessary for it to reach a proper decision.
46. In the circumstances, I do not think that the claimant's representative is to be criticised for not seeking a further adjournment. The fact that this was not done accords with the reality that, by then, the various possible alternatives to detention had been properly investigated.
47. In the event, however, this application for judicial review fails both against the local authority and against the Parole Board.
48. MR SOUTHEY: My Lord, I have two applications. One I suspect is going to be uncontroversial and one I suspect may be slightly more controversial. The first application, which is the one that I suspect is not controversial, is an application in relation to costs, that the claimant's costs should be assessed for the purposes of the Legal Services Commission.
49. MR JUSTICE BLAIR: Yes. I make that order.
50. MR SOUTHEY: My Lord, the second application is for permission to appeal. In my submission, although ultimately this claim has been determined on its facts, the facts in my submission are still sufficiently strong that there is a reasonable prospect that the Court of Appeal might reach a different conclusion, particularly in the context of a young person. This is a situation where in particular the Parole Board's final decision in my submission, where it is critical of the local authority, does give rise to some sense of concern. As I say, in the context of a young person in my submission it would be appropriate for the Court of Appeal to look at the case. I am not sure there is anything else I can say.
51. MR JUSTICE BLAIR: No, and again put, if I may say, most sensibly. But I am afraid I do not consider that there is a real prospect of success nor any other compelling reason to grant permission to appeal.
52. MR SOUTHEY: My Lord, thinking about it, in relation to that application, there is one other application and I am not sure whether this will be necessary, because clearly I will need to advise those who instruct me. But I am conscious of the time of the year and the fact that obviously the claimant is young person and that this claim needs to progress reasonably promptly if it is not to be academic. What I would ask for is whether the transcript could be expedited. (The judge conferred with the Shorthand Writer)
53. MR JUSTICE BLAIR: Mr Southey, thank you very much. Very fairly, the shorthand writer has explained the pressures that she and her colleagues are under at the moment, and you will I am sure be very well aware of that. She has said that she will do her best. With the caveat that only that which is possible can be done, I direct that it be expedited. I know that you and those instructing you, with their great experience in this field, will understand the practical problems.
54. MR SOUTHEY: Absolutely, my Lord. I simply could not ask for any more than what is practicable.
55. MR JUSTICE BLAIR: Is there anything else?
56. MR SOUTHEY: Not from this side of the Bar.
57. MR JUSTICE BLAIR: Anything else from either of you?
58. MISS RHEE: No.
59. MR JUSTICE BLAIR: Very well. Thank you all very much for your help. I would like to thank the court staff and also the officers who attended with the claimant for sitting into the lunch hour.
60. MR SOUTHEY: Thank you.