England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		22nd October 2009

1. THE DEPUTY HIGH COURT JUDGE: This is an application for judicial review of the decision of the Swindon Local Safeguarding Children Board ("the Board") to undertake a Serious Case Review according to specified terms of reference and a designated timetable.
2. The decision arose out of events that occurred at the Ridgeway Foundation School ("the School") on 11th January 2007, in which the claimant, whom I shall call Henry, then aged 15, was very seriously injured.
3. The claimant contends that although the terms of reference were in themselves appropriate, the decision to carry out the Serious Case Review on a phased basis, and to limit the scope of the first phase, was unlawful.

The background

4. On 11th January 2007 Henry, who is white, was the subject of what was subsequently described by the judge at the trial of those responsible as a brutal and savage attack by a group of Asians, some of them pupils at the School, but some of them older men who had been called on to the premises by the younger assailants. A confrontation between Henry and a pupil in the School earlier that day had led to an arrangement having been made for what Henry believed was to be a fight between himself and that pupil at the end of the school day, on or by tennis courts close to the main exit from the School.
5. In fact, due to intense mobile telephone communication during the afternoon, three car loads of Asian men, 11 in total, converged on the School between 3.30 pm and 4.00 pm. When Henry arrived in the tennis court area, he was identified by Asian pupils, whereupon several of the older Asians entered the School grounds to confront him. Henry was punched. A hammer was produced. He was hit six times, causing a depressed skull fracture, an injury which has done long-term damage. The older men and some pupils then ran off and drove away, leaving Henry on the ground, whereupon some of the remaining Asian pupils kicked him again before the incident was finally brought to a halt by the arrival of staff.
6. Criminal proceedings in respect of this attack were completed on 11th June 2007, with 12 defendants having been found guilty and been given terms of imprisonment ranging from 6 months to 8 years.
7. Henry and three other children brought civil proceedings in November 2007 in the High Court against the School. The particulars of claim in that action were served on 16th April 2008. Paragraph 32 of the particulars alleges that the assault on Henry was caused or contributed to by the negligence of the School, their employees or agents. Then at A-J of that paragraph details of the relevant alleged acts and omissions are set out. In short, it is alleged that the School had, before 11th January 2007, failed to take adequate measures to prevent an assault of the nature in question, particularly in the light of alleged racial tension and earlier incidents at the School, and had failed also on 11th January 2007 to take appropriate steps to prevent the assault.
8. Before turning to the events leading up to the claim, I should briefly describe the framework, statutory and otherwise, in which this Board operates. The Children Act 2004 ("the Act") establishes Local Safeguarding Children Boards: see sections 13-16. The objective of such boards is set out in section 14(1) as follows:

"(a) to co-ordinate what is done by each person or body represented on the Board for the purposes of safeguarding and promoting the welfare of children in the area of the authority by which it is established; and

(b) to ensure the effectiveness of what is done by each such person or body for those purposes."

A Board is, and I quote from section 14(2), "to have such functions in relation to its objective as the Secretary of State may by regulations prescribe (which may in particular include functions of review or investigation)".

9. The relevant regulations are the Local Safeguarding Children Boards Regulations 2006 (SI 2006/90) ("the 2006 Regulations"). Regulation 5 is in the following terms, under the rubric "Functions of LSCBs":

"5. —(1) The functions of an LSCB in relation to its objective (as defined in section 14(1) of the Act[4]) are as follows—

(a) developing policies and procedures for safeguarding and promoting the welfare of children in the area of the authority, including policies and procedures in relation to—

(i) the action to be taken where there are concerns about a child's safety or welfare, including thresholds for intervention;

(ii)training of persons who work with children or in services affecting the safety and welfare of children;

(iii)recruitment and supervision of persons who work with children;

(iv)investigation of allegations concerning persons who work with children;

(v) safety and welfare of children who are privately fostered;

(vi)co-operation with neighbouring children's services authorities and their Board partners;

(b) communicating to persons and bodies in the area of the authority the need to safeguard and promote the welfare of children, raising their awareness of how this can best be done, and encouraging them to do so;

(c) monitoring and evaluating the effectiveness of what is done by the authority and their Board partners individually and collectively to safeguard and promote the welfare of children, and advising them on ways to improve;

(d) participating in the planning of services for children in the area of the authority;

(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned.

(2) For the purposes of paragraph (1)(e) a serious case is one where—

(a) abuse or neglect of a child is known or suspected; and

(b) either—

(i) the child has died; or

(ii) the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.

(3) An LSCB may also engage in any other activity that facilitates, or is conducive to, the achievement of its objective."

10. Guidance on the operation of Serious Case Reviews is to be found in HM Government Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children 2006 ("the Guidance"). The purposes of a Serious Case Review are set out at paragraph 8.3 of this guidance. There are three main purposes. They are:

1. To establish whether there are lessons to be learnt from the case about the way in which local professionals and organisations work together to safeguard and promote the welfare of children.

2. To identify clearly what those lessons are and how they will be acted on and what is expected to change as a result.

3. As a consequence, to improve inter-agency working and better safeguard and promote the welfare of children.

11. The question of determining the scope of a Serious Case Review is covered at paragraph 8.12 of the Guidance. The first matter identified is: what appear to be the most important issues to address in trying to learn from this specific case? How can the relevant information be best obtained and analysed?
12. At the ninth bullet point of that paragraph appears the following:

"How should the review process take account of a coroner's inquiry, and (if relevant) any criminal investigations or proceedings related to the case? How best to liaise with the Coroner and/or the Crown Prosecution Service?"

13. Timing is dealt with at paragraphs 8.14-8.16 of the guidance:

"8.14 Reviews vary widely in their breadth and complexity but, in all cases, lessons should be learnt and acted on as quickly as possible. Within 1 month of a case coming to the attention of the LSCB Chair, he or she should decide, following a recommendation from the Review Panel, whether a review should take place. Individual organisations should secure case records promptly and begin work quickly to draw up a chronology of involvement with the child and family.

8.15 Reviews should be completed within a further four months, unless an alternative timescale is agreed with the Commission for Social Care Inspection Region at the outset. Sometimes the complexity of a case does not become apparent until the review is in progress. As soon as it emerges that a review cannot be completed within four months of the LSCB Chair's decision to initiate it, there should be a discussion with the Commission for Social Care Inspection Region to agree a timescale for completion.

8.16 In some cases, criminal proceedings may follow the death or serious injury of a child. Those co-ordinating the review should discuss with the relevant criminal justice agencies, at an early stage, how the review process should take account of such proceedings. For example, how does this affect timing, the way in which the review is conducted (including interviews of relevant personnel), its potential impact on criminal investigations, and who should contribute at what stage? Serious Case Reviews should not be delayed as a matter of course because of outstanding criminal proceedings or an outstanding decision on whether or not to prosecute. Much useful work to understand and learn from the features of the case can often proceed without risk of contamination of witnesses in criminal proceedings. In some cases, it may not be possible to complete or to publish a review until after the Coroner's or criminal proceedings have been concluded, but this should not prevent early lessons learnt from being implemented."

14. The topic of Serious Case Reviews has been the subject of a comprehensive inquiry by Ofsted: Learning lessons, taking action: Ofsted's evaluations of Serious Case Reviews 1st April 2007 to 31 December 2008 ("the Ofsted Report"). In the Report Ofsted emphasises that "the fundamental purpose of a Serious Case Review is to identify what went wrong and to learn lessons" (paragraph 97).
15. I should also mention that under section 20 of the Act Ofsted has authority to evaluate Serious Case Reviews, including evaluating the quality of an overview report and of an executive summary.
16. To summarise, the following points regarding serious case reports should be recognised. First, serious case reports are appropriate primarily in the field of parental or carer neglect or abuse. This is, however, not an exclusive remit, with abuse being capable of being established on other sets of facts. Second, Serious Case Reviews are part of a process designed to safeguard and promote the welfare of children. Third, the primary focus of a Serious Case Review should be the child whose plight has given rise to it in the first place. Fourth, the main focus of Serious Case Reviews is on lessons to be learnt from fact situations (cases) that have gone wrong and which have led to abuse or neglect, which has resulted either in death or in serious harm, which has given rise to cause for concern about agency interaction. Fifth, what the lessons are needs to be identified clearly, together with how they will be acted on and what is expected to change as a result. Sixth, the issues of, among other matters, race, if they arise, should be dealt with explicitly. Finally, terms of reference should be carefully constructed to facilitate the purpose of a Serious Case Review.

Events leading to the claim

17. At first sight, the case of Henry would appear a compelling candidate for a Serious Case Review under the applicable legislation and guidance. It was not a case of parental or carer neglect or abuse with which Boards are frequently engaged. However, it satisfied sections 5(1)(e) and 5(2) of the Act because Henry had been abused or neglected, he had been seriously harmed and there was "cause for concern as to the way in which the authority, their Board partners or other relevant persons [had] worked together to safeguard [him]".
18. The evidence filed in this claim shows that Henry and his mother have, from shortly after the assault, pressed persistently and continuously for a wide-ranging inquiry into the circumstances, broadly interpreted, of the assault. There was no sign that a Serious Case Review would materialise. However, on 15th January 2009 — that is nearly 2 years after this life-threatening and damaging assault — Henry's mother was able to see the Secretary of State in person.
19. On 26th January 2009 the Right Honourable Ed Balls MP wrote to Henry's mother in the following terms:

"I can well appreciate that you have been through an extremely difficult and stressful time over the last 2 years, and that the future is an uncertain one for both Henry and your family. As I explained at the meeting I think it is unacceptable that there has not been any full investigation of such a serious incident which left your son with permanent injuries.

I also explained that Swindon Local Authority had referred the incident to their Local Safeguarding of Children Board (LSCB) to consider whether a Serious Case Review should be instigated. It is very unusual for an incident such as this to be the subject of a Serious Case Review. These reviews typically consider cases involving abuse or neglect by parents or carers. However, my legal advice is that the case does meet the relevant criteria for Serious Case Reviews, and I have written to the chair of Swindon's LSCB expressing that view. That was the letter to which I referred at our meeting: it had been dispatched earlier in the day.

The decision on whether to proceed with a Serious Case Review is for the LSCB. I do not have the powers to direct LSCBs to carry out such reviews but I have made my views on this particular case very clear to the chair of the Swindon LSCB. I understand that the LSCB is meeting on Thursday, 22nd January to consider the issues. I very much hope that the matter will be resolved speedily and that the review will get under way soon."

20. There can be little doubt from the terms of that letter that the Secretary of State thought, firstly, that Henry's case merited a Serious Case Review and, secondly, that such a review should have been undertaken well before January 2009.
21. Following the intervention of the Secretary of State, the Board's Serious Case Review Subgroup met on 22nd January 2009. The minutes of that meeting set out the background to the case and the criteria for undertaking the Serious Case Review. Under the heading "Further issues" appears the following:

"There is an impending civil case which, should a [Serious Case Review] be recommended, is likely to impact on the free and frank sharing of information."

22. The Subgroup recommended that independent legal advice was required inter alia on "what is the likelihood that parties might insist that the Serious Case Review could contain essential information that needed to be made available to the court, as has been the experience of Swindon LSCB in relation to the Corner's requirements for the purposes of inquests".
23. The Subgroup met again on 5th February 2009. It recommended that the Board should undertake a Serious Case Review relating to the events surrounding the attack on Henry "as they consider that there are potentially multi-agency lessons to be learned".
24. On the timing of the review the minutes continued as follows:

"Because civil proceedings relating to this case are ongoing, there are significant concerns as to the most appropriate timing for the review. While there is already recognition that any review would not publish prior to the civil proceedings concluding, experience suggests that where Serious Case Reviews are under way, judges have nevertheless on occasion successfully obtained disclosure. In carrying out any SCR the Board would need to be confident it could carry out its function to the best of its ability and this would rely on obtaining the best information during the course of its work. It is of concern that parties to the civil proceedings who would be required to provide information might be constrained in being as open as they would like because they were in the shadow of the civil proceedings. Paragraph 8.32 recognises the need to balance disclosure against securing full and open participation. Clearly with litigation pending the issue of disclosure becomes more critical. In debating the timing, the Panel considered the likelihood of being able to achieve its goal versus the prejudice of purposeful delay. Therefore the Serious Case Review Subgroup put forward three suggested options should the Board accept the recommendation to hold a Serious Case Review:

1. That the Serious Case Review be delayed until the civil proceedings have been completed.

Pros: The Serious Case Review process will be fully independent of the civil proceedings and there is more likelihood that parties are able to contribute fully. Additionally where there are factual disputes between the parties the review process would have access to the determination of those issues (which would be irresolvable by the Serious Case Review process) by a High Court.

Cons: This option leaves us unable to make use of any potential learning to protect children and young people at Ridgeway School or at other schools in Swindon in the meantime.

2. That the Serious Case Review be initiated fully immediately and completed according to the normal timescales.

Pros: That we are able to make a prompt assessment of the case, learn lessons as soon as possible and take any relevant action.

Cons: We run the risk of not having access to full and open involvement from parties due to the civil proceedings and the constraints placed upon them by this process both legally and possibly, in the case of the School, through the requirements of their insurance. This may limit the learning. It is not impossible that the civil proceedings would require us to disclose documents from the Serious Case Review.

3. That we initiate a Serious Case Review to cover a specified period before and after the incident but that a phased timetable is negotiated with GOSW. Relevant organisations should be asked to secure any records and start drawing together their chronologies and single agency management reviews. However, pending the civil proceedings the Board would focus on the key issue of assuring itself about the current safety of children and young people at the School; the lessons learnt, initiatives since the assault, and current arrangements to manage conflict between pupils.

Pros: Because of the time that has elapsed since the assault this enables the early capture of any learning. Individual organisations begin to identify and address lessons learned through their own reviews, we can gain greater clarity about what is now in place to safeguard children at Ridgeway School and there is a greater likelihood of capturing key information from the School about the period leading up to the incident. This in turn increases the probability of useful learning.

Cons: We will not be able to gain a full picture of multi-agency practice or to conclude the review until sometime after the end of the civil proceedings. We will therefore not meet the parameters set down by guidance on timescales for a Serious Case Review. This will also delay the development of a multi-agency action plan in response to the review.

The Serious Case Review Subgroup are requesting guidance from the LSCB as to the most appropriate option."

25. The crucial meeting of the Board then took place on 10th February 2009. The Board had before it the three options put forward by the Subgroup. The Board agreed to carry out a Serious Case Review into Henry's case to ensure that "we capture and put into practice any learning and to ensure that parents in Swindon are able to be confident in the safety of their children in School including at the start and end of the school day".
26. Under Item 4 of the minutes, under "Timing of the review" appeared the following:

"The meeting reviewed the timescale options identified by the Serious Case Review Subgroup and recorded in their minutes.

Key issues from the discussion included:

• Concerns about the impact of the civil case on some parties' ability to participate fully in the Serious Case Review at this time.

• The potential for looking at the emerging themes, what has been put in place since the incident at the heart of the review and how this learning might support schools throughout Swindon.

• The difficulty in this particular case of putting the child/young person at the centre of the review, as stressed in recent Ofsted guidance. Much multi-agency involvement that we would hope to capture may not refer to HW.

• The possibility of obtaining transcripts of the two trials, though this is likely to be costly.

• The possibility that the High Court determination of the civil case may help ensure that any issues are well aired and inform the conclusions of the review.

Janet Mokades concluded that there was a strong sense that Swindon LSCB should take action as soon as possible. She proposed that we should proceed on the basis of Option 3, a phased review (see the appendix to these minutes, page 5, for the options). We would need to establish from the School their view about whether there are constraints on the nature and timing of their input and take a view about our approach in the light of this. Should they be able to contribute fully immediately, we could revert to Option 2. We will need to seek agreement from Government Office, negotiating appropriate timescales and achieving clarity as to the review process given the unusual nature of this case.

Based on the above, the Serious Case Review Subgroup was asked to take matters forward in whatever way ensures the best outcomes for us in terms of learning."

27. In the event, Option 3 was selected. The terms of reference were notified to Ofsted and the issues to be addressed were identified as follows:

"1. To establish what issues prevailed prior to the attack on Henry specifically relating to Henry, but also in the School and the community that might have a bearing on the attack. This will include reviewing incidents and events outlined in the submission in support of the claim for damages to the High Court lodged by Henry, his brother Joseph Webster, his mother Elizabeth Webster and Roger Durnford; and in the defence provided by the Ridgeway School.

2. To establish the events that occurred on 11th January 2007 relating to the specific attack, and whether appropriate actions were taken in the circumstances.

3. To consider what could have been in place that might have prevented the attack, including whether multi-agency working could have been improved to address any of these issues.

4. To identify what learning has already been achieved since the attack within the School and the wider community; how the School has taken steps to ensure a safe environment for children; and whether any initiatives and subsequent actions have had any impact.

5. To identify what further lessons can be learned from this incident that may inform both local and national practice to protect young people from the effects of bullying, gangs and inter-group tensions."

28. Under "Timing of the review" in that document appeared the following:

"There are significant issues as to the most appropriate timing for the review, as civil proceedings relating to this case between the Webster family and the School are ongoing and due to be heard in October 2009. The Serious Case Review is intended to enable the learning of lessons and the civil case will therefore usefully inform the SCR and clarify some of the more intractable issues.

In any case, the outstanding proceedings will impact on being able to successfully share information, reflection and learning from any review of the specific incidents relating to Henry. This precludes addressing the areas numbered 1, 2, 3 and 5, outlined above in the paragraph 'Issues to be addressed' prior to the proceedings."

29. In short, the Serious Case Review was, in the first place, limited to identifying what further lessons could be learnt from the incident.

The grounds of challenge

30. Lord Brennan QC, who appeared for Henry, submitted in summary that there was no good legal reason why all the issues identified in the terms of reference should not have been addressed by the Serious Case Review. To limit the review in the first instance to Issue 4 was to strip it of real practical value. It would not be possible, in an effective or rational way, to assess the efficacy of measures taken after the assault before examining and evaluating conditions at the School prior to the attack, and before closely scrutinising the specific events of 11th January 2009 itself. The Board took the course that it did only because of the pending civil litigation and, he submits, that was not a good or sufficient reason for hobbling the Serious Case Review in the manner that the proposed phasing entailed.
31. Miss Tracey Cronin for the Board submitted in response that the Board had to decide how to conduct an efficient and effective Serious Case Review and that it was open to the Board to take the view that a phased approach was appropriate in the light of the pending civil litigation.
32. To resolve this issue it is important to consider, first, precisely how matters stood in early February 2009, when the challenged decision was taken. Two years earlier a serious, life-threatening assault had been suffered by Henry. The circumstances in which the assault occurred, and the resulting injuries, brought the events squarely within the statutory criteria for a Serious Case Review. Such reviews further a very important public policy: the protection of vulnerable children.
33. The applicable legislation and guidance require that such reviews take place promptly and deliver their conclusions expeditiously. The need for promptness is obvious. As time passes, memories fade, conditions change, individuals move on and it becomes more difficult to reconstruct with confidence past events and material circumstances. The need for expedition is equally obvious. If things have gone wrong, the system must be improved as soon as is practicable to prevent repetition. However, in this case nothing had been done for over 2 years and it required the intervention of the Secretary of State in person to activate the Board to take steps which should have been taken before.
34. In my judgment, in these circumstances, particularly given the gravity of the injuries sustained by Henry in an incident which had apparent racist overtones, it was imperative, if the important legislative policy was to be achieved, that the Board should promptly initiate a comprehensive Serious Case Review that would report expeditiously on all the issues that had been identified as raised by the events in question. The corollary of that imperative was that if the Board was minded to adopt a procedure which would substantially defer yet further the preparation, execution and delivery of a comprehensive Serious Case Review, promotion of the important relevant legislative policy required the Board to have a compelling reason that was well-formulated and properly substantiated.
35. If authority is needed for the last proposition, see Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, where, albeit in a different context, the House of Lords held that on the proper interpretation of the relevant legislation, the Minister had no well-founded reason for refusing to refer a genuine issue arising under the Milk Marketing Act to a committee of investigation.
36. In my view, the Board did, in the event, adopt a procedure that was likely substantially to defer yet further the preparation, execution and delivery of a comprehensive Serious Case Review. I accept, for the reasons that he advanced, Lord Brennan's submission that a review limited, in the first instance, to Issue 4, namely what had happened since the assault, stripped the exercise of much of its practical value. To assess, in any effective or rational way, the efficacy of measures taken after the assault, it was necessary to examine and evaluate conditions at the School before the attack and to scrutinise carefully the actual events of 11th January 2009 itself.
37. It appears that the Board has now finalised one or more documents that, in accordance with the phased procedure that has been followed, are limited to Issue 4. The document or documents have not been published and no copy was produced to the court. It is not possible, therefore, to determine precisely how far this product, limited as it is, falls short of a comprehensive Serious Case Review of a kind contemplated by the legislation and guidance. It appears, however, that the product of the Board's work so far was submitted to Ofsted in order that Ofsted could evaluate it under section 20 of the Act. It appears also that Ofsted did respond.
38. It would be surprising if Ofsted did not state its position in writing, but no written communication, if any, from Ofsted has been produced. However, on the day before the hearing of this application the Board wrote to Henry's mother seeking to explain why no document relating to the Board's work so far on this case had been published or made available to those concerned. In my view, the explanation given in the letter illuminates sharply the central problem with the procedure adopted by the Board, which I have already set out. Referring to the putative Ofsted evaluation, the letter states:

"Discussions with Ofsted, however, have indicated that, if submitted alone, this phase is likely to be viewed as partial [meaning not sufficiently complete] and the LSCB [the Board] should consider submitting both phases to be evaluated together."

39. It is plain, therefore, that Ofsted can make no progress on evaluating a Serious Case Review in this case until all the issues have been addressed. This simply reinforces the conclusion that a Serious Case Review limited to Issue 4 has little, if any, practical value.
40. The Board decided to postpone the carrying out of a comprehensive Serious Case Review, at least until the completion of the trial of the civil action. This was likely to defer further the Serious Case Review for a substantial period. In the event, the trial of the civil action began just before the hearing of this application and it may well be towards the end of this year before judgment is given. Therefore, although, for reasons that I have given, the matter was already urgent in February 2009, the procedure adopted by the Board was likely to defer the Serious Case Review for another 9 or 10 months.
41. It is now necessary to examine carefully the ground advanced to justify this further substantial deferment of the Serious Case Review. It has not been entirely easy to pinpoint the exact reason why it was decided to wait for the completion of the trial of the civil action. The Board filed a witness statement from Janet Mokades, the acting Independent Chair of the Board. The statement refers to the minutes of the Board and its subgroup, the relevant parts of which I have set out earlier in the judgment.
42. Ms Mokades says at the end of her statement:

"They [the Board] were keen to ensure that, by dealing with the first phase prior to the civil proceedings, any lessons that could be learned from it which were of wider value would be made available at as early a stage as possible."

43. That statement is in quite general and unspecific terms. In these circumstances, I have to seek to extract from the minutes, and from the submissions of Miss Cronin, the exact basis of the decision.
44. Miss Cronin, in her oral submissions, first referred me to paragraph 8.16 of the guidance, which I quoted earlier, and to the risk of witness contamination that is mentioned in that paragraph. She appeared to suggest that there might be a similar risk in this case. However, I reject any such suggestion which, to be fair, was not pursued with any evident enthusiasm. First, the reference is to contamination of witnesses in criminal proceedings. Plainly there is a powerful public interest that criminal prosecutions should not be corrupted by allowing material witnesses to try out their evidence and possibly to have it tested in a dummy run in another forum or, worse, to get together in advance with a view to aligning their stories before such a forum with potential distorting effect on their eventual testimony in a criminal court.
45. It is not self-evident that the same issues arise, or at least arise to the same or similar extent, in relation to pending civil proceedings, or that such risk as might arise could not be adequately managed in a well-conducted Serious Case Review. In any event, there is in this case no evidence at all that the Board's decision to postpone was taken out of any concern that a comprehensive Serious Case Review that started promptly might adversely affect the conduct of the civil action.
46. Miss Cronin then contended that the Board in a Serious Case Review could not resolve contentious issues of fact and that any such issues would be resolved by the outcome of the civil action. This echoed a point touched upon in the course of the Board's deliberations. Again, I am not impressed by this submission. First, it seems to me that ordinarily the Board would be able to form a view about the issues that it had properly identified, having regard to the discussions it would hold with those principally concerned, and to any relevant documents, even if there was inconsistency, or even conflict, in the accounts that it received from the participants. Sometimes, given the purposes of a Serious Case Review, it may not even be necessary or appropriate to resolve any such conflicts. Furthermore, the focus of the civil action to decide whether the School had been at fault was different from that of the Serious Case Review, namely to ascertain in an objective way what had happened, why it had happened, and to consider what had been done to minimise the risk of repetition without purporting to apportion blame or liability. The judgment in the civil action might overlap with the matters considered in the Serious Case Review, but in my view it was not reasonably necessary to await any such judgment before undertaking a comprehensive Serious Case Review.
47. The third point put forward by Miss Cronin reflects the terms of the actual decision. For convenience I set out again the material part of the minutes of the Board's meeting on 10th February 2009:

"Janet Mokades concluded that there was a strong sense that Swindon LSCB should take action as soon as possible. She proposed that we should proceed on the basis of Option 3, a phased review... We would need to establish from the School their view about whether there are constraints on the nature and timing of their input and take a view about our approach in the light of this. Should they be able to contribute fully immediately, we could revert to Option 2 [that is a Serious Case Review not limited exclusively to Issue 4]."

48. Miss Cronin submitted that the Board believed that, given the nature and extent of the allegations in the civil action, the School (that is the head teacher and relevant staff) would not engage with the Serious Case Review in a full and frank way. However, for reasons that I set out earlier, in my judgment any justification for substantially deferring further a comprehensive Serious Case Review in this case had to be well founded. The critical issue, therefore, is whether the justification was well founded.
49. The only reasonable inference from the terms of the minute that I have just set out is that the Board, before the crucial meeting on 10th February 2009, had taken no steps whatsoever to ascertain from the School whether it would co-operate with a Serious Case Review in a full and frank manner. Nothing in the evidence filed in these proceedings suggests that any such step was taken. In this context, if the Board, contrary to what happened, had approached the School, it could reasonably be expected that, given the gravity of the triggering events and the public function that the Board was discharging, the Board would have done so in strongly positive terms to the effect that the Board expected that the School would fully co-operate in the Serious Case Review and would therefore use its best endeavours to facilitate a procedure designed to promote an important public policy. In short, the belief upon which the Board relied was, on this evidence, a surmise or conjecture. No step was taken before the meeting to seek to ascertain the actual position of the School or, if the initial reaction of the School proved recalcitrant, to point out in firm language how important it was in this case to carry out a comprehensive Serious Case Review and how desirable it was to secure the full engagement of the School. In my judgment, the belief was simply not substantiated to the extent that was necessary or appropriate to achieve the objectives of the relevant legislation.
50. That is not quite the end of the matter, for at the hearing of this application I pressed Miss Cronin whether, following the meeting, the Board had in fact written to the School along the lines mentioned in the minutes, for there was no letter to that effect produced in these proceedings, and no evidence that the School had been contacted. Again, given the background, it could reasonably be expected that in the light of the meeting on 10th February 2009, the Board would have written to the School and would have done so in the strongly positive terms that I have already indicated.
51. On instructions, Miss Cronin told me that, following the meeting, the School had been telephoned and the message received was that the School could not co-operate with the Serious Case Review because of the position adopted by its liability insurers. It appears that the Board then simply accepted the School's refusal to co-operate for the reasons given by the School.
52. This was hardly an appropriate manner for potentially significant further evidence to come before the court. However, if this evidence is to be accepted, a somewhat different picture emerges. Contrary to the apparent belief of the Board, it appears that the School was not, in principle, unwilling to engage with a Serious Case Review in a full and frank manner. The School would not engage because of instructions received from their liability insurers.
53. In my view, three points emerge from this further evidence. First, had the Board sought at the outset to correspond with the School to ascertain its position in regard to a Serious Case Review, the insurance obstacle proffered by the School following the meeting of 10th February 2009 could have been addressed much earlier. Secondly, once the School had articulated this objection, the Board took no steps at all to address and to seek to resolve this particular problem. The Board simply accepted that the School must remain silent because their insurers told them to remain silent. The third point raises an issue of more general significance. The outcome in this case, namely that a prompt and expeditious comprehensive Serious Case Review, that was required to further an important objective laid down by Parliament, was substantially deferred further because of the apparent stand taken by the liability insurers of one of the principal parties to the proposed Serious Case Review. The emergent picture of Parliament's intentions being frustrated in this way is not an attractive one and the implicit precedent would be a very poor one for the future of Serious Case Reviews if allowed to stand.
54. In my judgment, taking proper account of the context and the policy objectives of the legislation, if such an objection is to stand, it was incumbent on the Board itself to take steps to address and to seek to resolve the issue. It was open to the Board to ascertain for itself the exact nature of the alleged insurance obstacle, including from what level in the insurer's organisation this obstacle was derived, and, if necessary, to explain to the relevant insurers the background to, and the importance of, the proposed Serious Case Review. In particular, the Board could have explained that its function was not to find fault or to apportion blame or liability, and that a way forward could, in all probability, be found which would not compromise the interests of the School, or of its liability insurers, in the civil action. Indeed, the spectre of statutory Serious Case Reviews being effectively stymied by the insurance industry would be of potentially such significance to public policy as to engage the attention of the Secretary of State and, through him, if need be, the Association of British Insurers and, in the last resort, the industry regulator, the Financial Services Authority.
55. As I have said, the Board took no active steps, but simply accepted the School's objection to the Serious Case Review stated in the telephone conversation following the meeting of the Board at which the challenged decision was provisionally taken. Again, recalling the context and applicable legislative policy, and the gravity of this case, I am not able to find, in the absence of the steps that should properly have been taken, that the Board had a well-substantiated reason for deferring further, for a lengthy period, the Serious Case Review in this case.

Timing of the application

56. It is not entirely clear from the evidence when the Board took a final decision to conduct the Serious Case Review in two phases. The decision taken on 10th February 2009 depended on communication with the School and was conditional on agreement from the Government Office for the South West. That agreement was given on 6th March 2009 and it appears to be well arguable that it was on that date that the decision became unqualified and unconditional. The claim was issued on 7th March 2009, 2 months later, and well within the cut-off date for timely applications. Even if, as the Board contends, the relevant decision was taken on 10th February 2009, a contention that is problematic given the qualification and condition to which I have referred, I would nonetheless treat the application as made in time. The Board does not allege any prejudice from the time taken to file the claim, and it would certainly be unfortunate if a claim that I have found well founded were to fail on a timing point that has caused no prejudice to the Board or to good administration.
57. For these reasons, I allow the claim for judicial review.
58. MR GEARTY: My Lord, thank you. I wonder whether there will be a draft. One or two points of detail on timing and so forth.
59. THE DEPUTY HIGH COURT JUDGE: Yes, certainly.
60. MR GEARTY: Thank you, my Lord. I would ask for the usual order for costs: defendant to pay on the standard basis, to be assessed if not agreed, and also, my Lord, in this case, ask for an interim payment under the CPR of half of what we have already submitted in a costs schedule, to be paid within 14 days. I do not know if my Lord has the costs schedules before him.
61. THE DEPUTY HIGH COURT JUDGE: Yes, I have a costs schedule. Could we first deal with the form of the order, because it seemed to me that probably a more appropriate order, in the light of the judgment, would be a quashing of the decision and then a direction that the Board should conduct a Serious Case Review in accordance with the terms of the judgment.
62. MR GEARTY: That is ideal.
63. THE DEPUTY HIGH COURT JUDGE: You are content with that?
64. MR GEARTY: Yes, my Lord, content.
65. MISS CRONIN: My Lord, may I address you on the question of the principle of costs? Clearly the court always has a discretion. Clearly, in this case, the claimant has succeeded and, as we have all accepted from the outset, the case raised issues of very serious public importance. It has, I think, not even been suggested that the defendant had not acted in good faith. The decision which your Lordship has made has taken time for consideration and your Lordship is aware that the parties have been in communication with each other before the case came to court.
66. The principle which I invite your Lordship to consider carefully in this case is the principle of the means of the parties. The claimant is legally aided. He does not recover or preserve property in this action. He will bear no part of the costs of the case himself at all. So nothing that I say, or your Lordship could decide, will make the difference of a penny piece to the claimant or his family.
67. Of course, the Legal Services Commission picks up the very large bill on that side, and it must be thought that, in the public interest, these cases should be funded. However, on the other side the defendant is a relatively small part of a local authority. It may be thought that local authorities have deep coffers. The ratepayers of Swindon Borough Council are no better off, and the Council is no better off, than any other local authority. In particular, the Local Safeguarding Children Board is a small part of the Greater Borough Council Authority and the allocation to Serious Case Reviews is an even smaller part.
68. I can, if your Lordship wishes to see it, hand up a summary of the budget, but let me tell your Lordship, in short, what it is. The whole budget for the Board, for the year 2009/2010 is £255,000. The allocation for Serious Case Reviews — and, of course, your Lordship will understand that this is a budget which is set in advance before it is known what reviews are going to be undertaken — is £37,980. The actual costs of this review, as planned on the phased basis, but inevitably as will remain the costs because of the duration of the whole review, will be, in any event, £48,632. This review alone will exceed the allocation in the Board's budget by more than £10,500, and that will be accounted for by drawing against the allocation for next year. The budget allocation for the Board for the year 2010/2011 is already reduced from the current year's budget to £185,273. So that will be reduced, without any effect of any costs order, by a further £10,000, and the Board will be carrying out its functions in the year to come with a budget approaching two-thirds of last year's budget.
69. The schedule of costs which my learned friend has put in front of you runs to £52,000. In the event that the court makes an order for the defendant to pay the claimant's costs, the budget for next year, because I anticipate there is no other source from which to pay such an order, will be reduced to £135,000, approximately 60 per cent of the budget for the present year, which, as I have said, has not been adequate. The effects of an order for costs would therefore be that the functions of the Safeguarding Board were significantly curtailed and, whatever the public interest on the other side, I invite the court to have regard to the public interest on the defendant's side of permitting the Board to continue to carry out its functions, your Lordship might say, with the benefit of the lessons learned in these proceedings, but it cannot be in the public interest for the Board to be so circumvented by its budget next year as not to be able to carry out its functions properly.
70. I do not make any representations at this stage, unless your Lordship invites me to do so, as to the level of the bill, because that is clearly something which should be the subject of detailed assessment, but your Lordship will have seen from comparing the schedules of costs that the claimant's costs were more than three times the defendant's costs.
71. My Lord, issues of proportionality are for the Taxing Master, rather than for your Lordship, but the principal, and I think most important, point that I put before your Lordship is the lack of prejudice to the claimant if your Lordship's order is no order for costs, compared to the very significant impact on the defendant of any order for costs.
72. My learned friend asks, on instructions, for a payment on account. At the risk of repeating myself, that does not benefit his lay client, but is sought in the interests of his professional client. I will be repeating myself if I continue those submissions.
73. MR GEARTY: My Lord, these are undoubtedly important considerations. We would say that we did not want to be here at all, and that almost immediately after the assault in January 2007, as my Lord has attention to in this judgment, we were asking for this review. Even as late as December of last year there was no review in the offing, as you have observed. When the review began in its truncated and, we said, ineffective form, we were very quick, my Lord, to draw to the attention of the defendant our willingness to continue to work with them, allied to our concern that they were embarking upon a project which would ultimately prove to be unlawful.
74. In argument, my learned friend Lord Brennan drew attention to the letter the instructing solicitors had sent to the independent consultant, Ron Lock, which is dated 7th April 2009. I will not take you to the papers this morning, my Lord, unless you wish to see them. This was a nine-page letter from our instructing solicitors which in some ways anticipates some of what has been said today, and which ends by stating:

"For the record Henry and his family intend to work together with you and your colleagues throughout the course of this review..."

But if it is not proceeded with in accordance with the Option 2, it will be proceeding unlawfully.

75. And the last sentence in the final substantive paragraph:

"Please be rest assured that if you decided to continue to proceed on such a basis we will seek to challenge this process by way of an expedited judicial review."

76. That was as early, my Lord, as 7th April. Now, we only wish that the matters to which my learned friend has drawn attention were given the right level of emphasis then. It may well be that the decision might have been not to have fought the case and the result would be that these costs, which have been incurred in the pursuit of a lawful decision from the defendant, would not have been incurred.
77. THE DEPUTY HIGH COURT JUDGE: In this case it seems to me that I must start from the general principle that the successful party is entitled to his costs. It is not an uncommon situation to find that there is an imbalance of resources between the parties and that one party is legally funded and the other is not. In my view, it is not an appropriate case where I should seek to explore the actual financial situation of the defendant in this case. I have heard what has been said about budgetary constraints and budgetary effects, but I do not think that it is right in this case for me to explore those matters and to modify what would otherwise be the correct course, namely that the claimant is entitled to the costs of this action.
78. However, I hear what is said on the actual quantum, and I would have had some reservations myself, but it does not seem appropriate for me to go into any detailed assessment on the actual level of costs, so I would order a detailed assessment of the costs. I would also not, pending that assessment, make any interim order for costs in this case.
79. MISS CRONIN: I am very grateful.
80. MR GEARTY: Thank you, my Lord.
81. THE DEPUTY HIGH COURT JUDGE: So if you will let me have any proposals and anything that you have spotted in the course of my reading my judgment as to dates or whatever or references that are not accurate.
82. MR GEARTY: Just one or two tiny things.
83. THE DEPUTY HIGH COURT JUDGE: Then I will be able to correct the eventual transcript that I receive.
84. MR GEARTY: Will my Lord have it sent electronically?
85. THE DEPUTY HIGH COURT JUDGE: That is fine, yes. Also, if perhaps you would draft the form of the order, if you can agree it among yourselves.
86. Thank you very much for your submissions.