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
		12/11/2009

His Honour Judge McKenna:

Introduction

1. This claim for judicial review which was issued on the 13^th August 2009 concerns the obligations owed to a 15 year old disabled girl with learning difficulties and hearing problems who lives with her mother and step-father in Barnet. This court is concerned with the rolled-up hearing of the Claimant's application for permission and if permission is granted the substantive hearing of the judicial review pursuant to the order of Michael Supperstone QC sitting as a Deputy High Court Judge dated 4^th September 2009.
2. During the course of the hearing, I made an anonymity order pursuant to CPR 39.2 to prevent the Claimant from being identified and I also permitted the Claimant to amend her claim so that her grounds now are:

i) The Defendant has unlawfully failed to produce an assessment and care plan consistent with the "Framework for the Assessment of Children in Need and Their Families".

ii) In deciding that the Claimant's needs can be met at Friern Barnet School the Defendant has failed to have regard to its duty to safeguard and promote the welfare of the Claimant as required by Section 11 of the Children Act 2004.

iii) The Defendant has failed to make such arrangements as are necessary to safeguard and promote the Claimant's wellbeing as required by Section 11 of the Children Act 2004 and associated guidance entitled "Statutory guidance on making arrangements to safeguard and promote the welfare of children under Section 11 of the Children Act 2004."

iv) The Defendant has failed to have regard to the "Safeguarding Children and Young People from Sexual Exploitation" guidance and provide such support as is necessary to safeguard the Claimant from sexual exploitation.

v) The Defendant has failed to provide the Claimant with suitable education as required by Section 19 of the Education Act 1996.

3. For its part the Defendant denies that it has failed to produce an assessment and care plan asserting that the "Framework for the Assessment of Children in Need and their Families" does not stipulate a form for such an assessment and that the multi-disciplinary assessments that the Defendant has carried out satisfy the requirements for reasonableness. In particular, the Defendant asserts that assessments dated 24^th September 2004, 10^th August 2005, 27^th July 2006, 20^th February 2008 and 1^st October 2009 were carried out in compliance with the requirements of the statutory guidance. Furthermore the Defendant denies that it failed to have regard to its duties under Section 11 of the Children Act 2004 and asserts that it was in discharge of such duties that it reasonably concluded that a placement at Friern Barnet was to be preferred to a placement in a special school.
4. The Defendant also denies that it has failed to provide suitable education as required by Section 19 of the Education Act 1996.

Factual Background

5. The Claimant, whose date of birth is 7^th December 1993, lived in Portugal for the first 10 years of her life. Her mother had fled the family and arrived in the United Kingdom when the Claimant was 5 years old with the Claimant joining her mother in July 2004 when aged 10. Her mother suffers from mental health problems and mild learning difficulties. She now lives with the Claimant's stepfather who is very supportive and has considerable physical health problems of his own.
6. The Claimant was brought up in a household that spoke Gujurati and so when she arrived in the United Kingdom she had difficulty with English. She has a learning difficulty although the experts disagree as to its extent. Moreover her natural father has Downs Syndrome. The Claimant also has hearing problems as a result of which she wears two hearing aids.
7. In addition the Claimant was sexually and physically abused whilst in Portugal as a result of which she exhibits inappropriate sexualised behaviour and is therefore vulnerable to sexual abuse and indeed it is apparent from the papers that she was the victim of two serious sexual assaults in January and February 2008.
8. The Claimant left mainstream schooling in February 2008 and since then the only education she has received has been tuition in a local library for six hours a week which only began relatively recently.
9. Due to concerns about the Claimant's welfare she was admitted to the Northgate Clinic in June 2008, an NHS In-Patient facility for 13 to 17 year olds with mental health problems. At the end of this placement Dr Jonathan Williams, a child and adolescent psychiatrist, recommended a special school placement which would "greatly reduce the risk of rape or sexual abuse". He said that the Claimant "is at very high risk of sexual abuse or statutory rape.^[1]"
10. The Claimant has been known to the Defendant since September 2004 at the earliest, an initial assessment having been undertaken and completed in September 2004 (Defendant's bundle pages 1 to 5). The nature and extent of the Defendant's subsequent involvement is to be found documented in a large number of documents included in the Defendant's bundle culminating in the most recent assessment dated 1^st October 2009 which appears at pages 107 and following in the Defendant's bundle.
11. The initial assessment was followed by a further document also headed Initial Assessment completed on the 10^th August 2005 a copy of which is at Defendant's bundle pages 6 and following and at page 10 sets out various actions to be taken or which had been taken under the heading "Summary and Analysis".
12. On the same day, 10^th August 2005 Miss Culberson, a senior social worker in the Defendant's employ, completed a closing summary in which it was noted that "referral had been made to all appropriate agencies e.g. CAMHS^[2], Audiologist and SEN Team in Education", that Social Services had investigated child protection concerns about potential abuse by the Claimant's mother and that Social Services had arranged for the Claimant to see the school nurse "for a few one to one sessions" and that information had been passed about 331^[3] and about the National Society for Deaf Children.
13. On 27^th July 2006 a further closing summary (Defendant's bundle page 18 and following) was conducted which purported to encompass the Claimant's health, education, emotional and behavioural development, family and social relationships identity and social presentation, basic care, safety, emotional warmth, stimulation guidance and boundaries stability parenting capacity, family history and functioning, social resources, wider family, community resources, social integration, housing, employment and income. It was noted that the Claimant was a vulnerable child and was receiving services to support her including CAMHS, school counsellor and school nurse. A referral to the family support work team was recommended.
14. Also included in the Defendant's bundle are a series of diary entries documenting further involvement with the Claimant including a professionals meeting on 21^st January 2008, a further assessment on the 11^th February 2008 and a further professionals meeting on the 14^th April 2008.
15. Subsequent to the issue of these judicial review proceedings, Ms Culberson completed a further formal assessment of the Claimant on 1^st October 2009 (Defendant's bundle page 107 and following). That document included a number of headings including Education, Emotional and Behavioural Development Identity, Family and Social relationships, Social Presentation, Self-care skills, Family and Environmental factors. At pages 111 and 112 there is a section headed Analysis and at page 114 a section headed Child's Developmental Needs which included the following:

Need/Strength	Outcomes
Unmet The Claimant is desperately in need of friends of her own age. Because of her vulnerability she will need support to do this. Clubs would be a good area in which she could meet new friends.	Unachieved Social worker to provide information about suitable clubs in the Barnet area.
Unmet The Claimant needs to be able to access leisure facilities but due to her vulnerability will need support to do so.	Unachieved Social worker to provide names of care agencies used by the local authority where parents can hire the services of qualified care workers to provide support for the Claimant to access leisure facilities and clubs.
Unmet The Claimant needs to continue to work with CAMHS to strengthen her emotionally and psychologically.	Achieved Parents to ensure the Claimant continues to engage with family therapy at CMHS (Achieved).
Unmet The Claimant needs to be in education as soon as possible.	Unachieved Parents to ensure that the Claimant resumes full time education as soon as possible.
Strength The Claimant has a strong attachment to both her mother and stepfather.

16. On page 115-6 under the heading "Initial Plan (part 2)" the following appears:

Need/Strength	Outcomes
Unmet The Claimant needs to be able to access leisure facilities but due to her vulnerability will need support to do so.	Unachieved Social worker to provide names of care agencies used by the local authority where parents can hire the services of qualified care workers to provide support for the Claimant to access leisure facilities and clubs.
Unmet The Claimant needs work to be done with her regarding keeping herself safe as she was sexually exploited in the past and continues to be vulnerable in this area. None	Unachieved SW to make referral to a Barnardo's project for sexually vulnerable young adolescents designed to strengthen them and make them less vulnerable. This project is due to start in the Spring of 2010. Not able to make referral until project is set up.
Strength The Claimant's parents are very warm, caring and patient and provide a good home for the Claimant.
Unmet The Claimant's parents, especially mother, need extra support with parenting skills to enable the Claimant to develop according to her age and to become independent.	Achieved Social worker to make a referral to Parent Network for parenting support (Achieved) Awaiting response from Parent Network Team.

17. In addition in June 2009 the Defendant produced a statement of special educational needs (Permission bundle section C page 8 and following) which named the Friern Barnet School as being suitable to meet the Claimant's needs. Part 3 of the statement says that in order to meet her special educational needs the Claimant requires "full access to the National Curriculum and "support to attend full-time" at aschool. At page 13 under the heading "To be provided by Barnet local authority" the following appears:

"The local authority considers that (the Claimant's) needs will be met in a mainstream school.

The programme to support (the Claimant's) needs will be provided by the school from its total delegated budget in the context of the whole school inclusion policy.

This will enable the school to provide 35 hours from a teaching assistant per week for her emotional behavioural and social difficulties and her hearing impairment.

This will be in addition to resources already available at the school."

18. For the sake of completeness, at this stage I also record that in June 2009 the Head Teacher at Friern Barnet School wrote a letter to the Defendant on the subject of the Claimant's proposed placement at his school. This letter is to be found in Supplementary Bundle Section D at page 6 and following and includes the following under the heading "In Summary" on page 11:

"(The Claimant's) case has gone to Panel numerous times.

Parents agree with professionals about a specialist placement.

(The Claimant) herself states that she wants to go to a special school.

(The Claimant) needs life skills and the expertise and opportunities available to her at a special school.

(The Claimant) is not yet in a position to be able to work in the large setting of a mainstream school and is not ready to take on GCSE options.

(The Claimant) is very vulnerable and is a health and safety risk to herself and to others in such an open situation.

The school does not understand what benefit it would be for (the Claimant) to actually attend this school.

In conclusion Friern Barnet School does not agree to be named on (the Claimant's) Statement because from all the evidence sent to the school it is obvious that a mainstream setting is not what (the Claimant) requires and we question what benefit there would be to (the Claimant) should the local authority decide that she should attend Friern Barnet School"

19. The decision to name Friern Barnet School in the Claimant's Statement for special educational needs is the subject of an appeal to the Special Educational Needs and Disability Tribunal which is due to be heard on 15^th December 2009.

The relevant law

20. The definition of "Child in Need" is found in Section 17(10) of the Children Act 1989 which provides:

"(10) For the purposes of this Part a child shall be taken to be in need if :

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services, or;

(c) he is disabled.

and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living."

21. Health and Development are broadly defined in Section 17(11) and it is common ground that the Claimant falls within the definition of "Child in Need" in Section 17(10).
22. In order to determine whether a child is a "Child in Need" as defined by Section 17(10) and if so what those needs are and how they are to be met, Children's Services Authorities are bound to carry out an assessment of the child consistently with the Framework for the Assessment of Children in Need and Their Families. This guidance was issued under Section 7 of the Local Authority Social Services Act 1970 and must be followed unless there is good reason not to do so (see paragraph 1.13 of the Framework Guidance):

"2.1 Assessing whether a child is in need and the nature of these needs requires a systematic approach which uses the same framework or conceptual map for gathering and analysing information about all children and their families, but discriminates effectively between different types and levels of need. The framework in this guidance is developed from the legislative foundations and principles in Chapter 1 and an extensive research and practice knowledge which is outlined in the practice guidance (Department of Health, 2000a). It requires a thorough understanding of:

the developmental needs of children;

the capacities of parents or caregivers to respond appropriately to those needs;

the impact of wider family and environmental factors on parenting capacity and children.

3.1 Assessment is the first stage in helping a vulnerable child and his or her family, its purpose being 'to contribute to the understanding necessary for appropriate planning' (Compton and Galaway, 1989) and action. Assessment has several phases which overlap and lead into planning, action and review:

clarification of source of referral and reason;

acquisition of information;

exploring facts and feelings;

giving meaning to the situation which distinguishes the child and family's understanding and feelings from those of the professionals;

reaching an understanding of what is happening, problems, strengths and difficulties, and the impact on the child (with the family wherever possible);

drawing up an analysis of the needs of the child and parenting capacity within their family and community context as a basis for formulating a plan.

3.9 A decision to gather more information constitutes an initial assessment. An initial assessment is defined as a brief assessment of each child referred to social services with a request for services to be provided. This should be undertaken within a maximum of 7 working days but could be very brief depending on the child's circumstances. It should address the dimensions of the Assessment Framework, determining whether the child is in need, the nature of any services required, from where and within what timescales, and whether a further, more detailed core assessment should be undertaken. An initial assessment is deemed to have commenced at the point of referral to the social services department or when new information on an open case indicates an initial assessment should be repeated. All staff responding to referrals and undertaking initial assessments should address the dimensions which constitute the Assessment Framework. There is more detailed discussion about the contribution of respective agencies in Chapter 5.

3.11 A core assessment is defined as an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context. While this assessment is led by social services, it will invariably involve other agencies or independent professionals, who will either provide information they hold about the child or parents, contribute specialist knowledge or advice to social services or undertake specialist assessments. Specific assessments of the child and/or family members may have already been undertaken prior to referral to the social services department. The findings from these should inform this assessment. At the conclusion of this phase of assessment, there should be an analysis of the findings which will provide an understanding of the child's circumstances and inform planning, case objectives and the nature of service provision. The timescale for completion of the core assessment is a maximum of 35 working days. A core assessment is deemed to have commenced at the point the initial assessment ended, or a strategy discussion decided to initiate enquiries under s47, or new information obtained on an open case indicates a core assessment should be undertaken. Where specialist assessments have been commissioned by social services from other agencies or independent professionals, it is recognised that they will not necessarily be completed within the 35 working day period. Appropriate services should be provided whilst awaiting the completion of the specialist assessment.

3.37 Gathering information requires careful planning. However difficult the circumstances, the purpose of assessing the particular child and the family should always be kept in mind and the impact of the process on the child and family considered. It has to be remembered that:

the aim is to clarify and identity the needs of the child;

the process of assessment should be helpful and as unintrusive to the child and family as possible;

families do not want to be subjected to repeated assessments by different agencies;

if, during the assessment, the child's safety is or becomes a concern, it must be secured before proceeding with the assessment.

3.42 It is essential that a child's safety is addressed, if appropriate, during the course of undertaking direct work with him or her. There are five critical components in direct work with children: seeing, observing, talking, doing and engaging:

Seeing children: an assessment cannot be made without seeing the child, however young and whatever the circumstances. The more complex or unclear a situation or the greater the level of concern, the more important it will be to see the child regularly and to take note of appearance, physical condition, emotional wellbeing, behaviour and any changes which are occurring.

Observing children: the child's responses and interactions in different situations should be carefully observed wherever possible, alone, with siblings, with parents and/or caregivers or in school or other settings. Children may hide or suppress their feelings in situations which are difficult or unsafe for them, so it is important that general conclusions are not reached from only limited observations.

Engaging children: this involves developing a relationship with children so that they can be enabled to express their thoughts, concerns and opinions as part of the process of helping them make real choices, in a way that is age and developmentally appropriate. Children should clearly understand the parameters within which they can exercise choice. In offering children such options, adults must not abdicate their responsibilities for taking decisions about a child's welfare.

Talking to children: although this may seem an obvious part of communicating with children, it is clear from research that this is often not done at all or not done well. It requires time, skill, confidence and careful preparation by practitioners. Issues of geographical distance, culture, language or communication needs because of impairments may require specific consideration before deciding how best to communicate with the child. Children themselves are particularly sensitive to how and when professionals talk to them and consult them. Their views must be sought before key meetings. Again, a range of opportunities for talking to children may be needed, appropriate to the child's circumstances, age and stage of development, which may include talking to the child on their own, in a family meeting or accompanied by or with the assistance of a trusted person.

Activities with children: undertaking activities with children can have a number of purposes and beneficial effects. It is important that they are activities which the child understands and enjoys, in which trust with the worker can develop and which give the child an experience of safety. They can allow positive interaction between the worker and the child to grow and enable the professional to gain a better understanding of the child's responses and needs.

4.1 The Guidance has emphasised that assessment is not an end in itself but a process which will lead to an improvement in the wellbeing or outcomes for a child or young person. The conclusion of an assessment should result in:

an analysis of the needs of the child and the parenting capacity to respond appropriately to those needs within their family context;

identification of whether and, if so, where intervention will be required to secure the wellbeing of the child or young person;

a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review.

4.11 To summarise the analysis stage:

A child's needs must be based on knowledge of what would be expected of this child's development;

Parenting capacity should draw on knowledge about what would be reasonable to expect of parental care given to a similar child;

Family and environmental factors should draw on knowledge about the impact these will have on both parenting capacity and directly on a child's development.

4.12 Professionals will be drawing on their respective knowledge bases to inform the judgements they come to about a child's circumstances, whether the child is in need and whether their health and development is likely to be impaired without the provision of services. For some children, decisions will also have been made about whether they are suffering or are likely to suffer significant harm. The knowledge base will include information about the factors which are intrinsic to all children such as temperament, genetic make-up and race, and other factors which may be intrinsic to some children, such as physical or sensory impairments.

4.20 In drawing up a plan of intervention, careful distinction should to be made between judgements about the child's developmental needs and parenting capacity and decisions about how best to address these at different points in time. These decisions will have to take account of a number of factors including:

how existing good relationships and experiences can be nurtured and enhanced;

what type of interventions are known to have the best outcomes for the particular circumstances of the child who has been assessed as in need;

what the child and family can cope with at each stage. Complicated arrangements regarding the provision of services and interventions might well overwhelm the child or individual family members;

how the necessary resources can be mobilised within the family's network and

within professional agencies, including social services;

what alternative interventions are available if the resources of choice cannot be secured;

ensuring interventions achieve early success and have a beneficial impact. The self-esteem of children and parents is critical to the outcome of longer term intervention. Good experiences are important when many other aspects of family life may be in chaos or problems feel insurmountable;

there may be an optimal hierarchy of interventions which will require distinguishing between what is achievable in the short term, what will have maximum impact on the child and family's wellbeing and what are the long term goals;

identifying what the child regards as highest priority, for example, learning to ride a bicycle may be far higher on a child's list of wants than therapy, and such practical wishes should be taken account of because they may result in changes which will enable the child to make use of therapeutic help.

It will be essential to achieve some parts of a proposed intervention within a predetermined timescale, in order to meet the child's needs. Other components of a plan will be less pressing and although desirable to achieve, not considered necessary for the prevention of future significant harm.

4.21 Underlying these critical considerations is the importance of keeping the child at the centre of the planning processes. Three key aspects of a child's health and development must inform the content and timing of the plan:

ensuring the child's safety;

remembering that a child cannot wait indefinitely;

maintaining a child's learning."

23. The duties placed on Children's Services Authorities by the 1989 Act now have to be read together with the duties conferred on them by Section 11 of the Children Act 2004. That Section provides that in discharging its functions the Defendant must have regard to the need to "safeguard and promote the welfare of children". This duty has to be discharged in accordance with the associated statutory guidance which makes clear that decisions affecting children should be consistent with the five "wellbeing" criteria found in Section 10 of the 2004 Act namely:

i) Physical and mental health and emotional wellbeing;

ii) Protection from harm and neglect;

iii) Education, training and recreation;

iv) Making a positive contribution to society;

v) Social and economic wellbeing.

24. Further guidance was issued under Section 7 of the 1970 Act in June 2009 entitled "Safeguarding Children and Young People from Sexual Exploitation". This guidance "covers the prevention of sexual exploitation, the protection of children and young people who are being or are at risk of being sexually exploited" (para 1.5).

Relevant Case Law

25. I was referred to a number of cases dealing with the duty to assess the needs of vulnerable children beginning with the case of AB and SB v Nottingham City Council [2001] 4CCLR 295. In that case Richards J (as he then was) emphasised the importance of a systematic approach at paragraph 41 when he said as follows:

"…There should be a systematic assessment of needs which takes into account the three domains (child's developmental needs, parenting capacity, family and environmental factors) and involves collaboration between all relevant agencies so as to achieve a full understanding of the child in his or her family and community context. It is important moreover to be clear about the three stage process: Identification of needs, production of a care plan and provision of the identified services. It seems to me that where an authority follows a path that does not involve the preparation of a core assessment as such, it must nevertheless adopt a similarly systematic approach with a view to achievement of the same objectives. Failure to do so without good cause will constitute an impermissible departure from the guidance."

26. Again in the case of R(S) v Sutton LBC [2007] FLR 849 the importance of a realistic plan of action was emphasised whilst in R(J) v Caerphilly County Borough Council [2005] EWHC 586 Munby J (as he then was) endorsed the approach of Richards J (as he then was) in R(AB and SB v Nottingham City Council. Thus, after highlighting at paragraph 42 the "most obvious deficiencies" in the pathway plan in that case, he commented as follows:

"44. In R(AB and SB) v Nottingham City Council [2001] EWHC Admin 235 [2001] 3 FCR 350, as Mr Wise correctly points out, Richards J emphasised the rigour and detail required of a local authority embarking upon an assessment such as this. At the end of the process, what is needed is a document, as Richards J put it at para 20 from which "it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help". Striking down the assessment in that case Richards J said at para 43:

"It was essentially a descriptive document rather than an assessment, and in any event sufficient detail was still lacking both as regards the assessment itself and as regards the care plan and service provision. There was no clear identification of needs, or what was to be done about them, by whom and by when"

Mr Wise was right to draw attention to these last few words which as it seems to me helpfully encapsulate the essence of what is needed of a pathway plan if it is to meet the requirements of the Regulations. The revised pathway plan dated 24^th January 2005, in my judgment, manifestly fails to meet these requirements.

45. To repeat, because the point is so important, and a clear statement of what is required may assist not merely this but other local authorities: a pathway plan must clearly identify the child's needs, and what is to be done about them, by whom and by when. Or, if another aphorism would help, a pathway plan must spell out who does what, where and when. As the Children Leaving Care Act guidance makes clear in para 7.7:

"The pathway plan should be explicit in setting out the objectives and actions needed to achieve these; this should include who is responsible for achieving each action and timescale for achieving it."

I draw attention to and wish to emphasise the word "explicit". At the risk of stating the obvious, the pathway plan here was very far indeed from being explicit.

46. Any judge who sits in the Family Division will be familiar with the depressing inadequacies and deficiencies in too many of the care plans presented to the court for its approval. A care plan is more than a statement of strategic objectives – though all too often even these are expressed in the most vacuous terms. A care plan is – or ought to be – a detailed operational plan. Just how detailed will depend upon the circumstances of particular case."

27. I approach the question of the suitability of the Defendant's assessment and care plan with the statutory Guidance and the comments of Munby J, as he then was, firmly in mind.

Education Act 1996

28. Section 19 provides as follows:

i) Each local education authority shall make arrangements for the provision of suitable…education at school or otherwise than at school for those children of compulsory schooling age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.

29. Section 19 of the Education Act 1996 was considered by the Court of Appeal in R(G) v Westminster City Council [2004] 1 WLR 1113 in which it was held that where suitable education was offered to the child's parents and that education was unreasonably refused no Section 19 duty arose.
30. Lord Phillips of Worth Matravers MR handed down the judgment of the court and at paragraph 46 he said as follows:

"In any case where a child is not receiving suitable education it is necessary to consider the whole picture in order to decide in what respect, if any, this is attributable to a breach of duty by the local education authority. If there is no suitable education available that is reasonably practicable for the child, the authority will be in breach of Section 19. If suitable education has been made available which is reasonably practicable, but for one reason or another the child is not taking advantage of it, the local authority may well be in breach of duty in failing to exercising its powers to ensure that the child receives that education. It will not, however, be in breach of Section 19."

Discussion of Issues

31. It is the Claimant's case that applying the legal framework and the relevant case law to the various assessments that have been undertaken by the Defendant in this case, the only conclusion that this court can come to is that the Defendant has failed to formulate a realistic plan of action to meet the Claimant's needs and in so doing has failed not only to meet the demands of the Framework Guidance but also to act in accordance with its safeguarding duties under Section 11 of the Children Act 2004.
32. The Defendant's case is that the various assessments and in particular the 1^st October 2009 assessment are compliant with the Framework Guidance in that they provide a thorough evaluation and an analysis which is more than superficial and which follows the same framework compliant format. Thus it is said that the enquiries that were carried out were carried out with depth, sensitivity and using a systematic approach. Alternatively any defects are of form rather than of substance and that when properly analysed, together with the extensive involvement of the Defendant with the Claimant over a protracted period of time, coupled with the contents of the Statement of Special Educational Needs with its reference to 35 hours of teaching assistant's time per week and escorted journeys the Defendant's care plan constitutes a realistic plan of action albeit that its full implementation has been frustrated by the parents refusing to permit the Claimant to go to the school proposed by the Defendant. Thus it is said that the Defendant's plan in this case is far removed from the type of plan found to be so deficient by Munby J (as he then was) in R(J) v Caerphilly County Borough Council. In support of that submission it was said for example that in the October 2009 assessment, individuals were identified to carry out specified tasks as follows:

i) Defendant's social worker was to provide information about suitable clubs in the area for socialisation purposes.

ii) Social worker was to provide names of care agencies used by the local authorities where parents could hire services of qualified care workers to support the Claimant in accessing leisure facilities and clubs.

iii) Continued engagement with family therapy at CAMHS was described as having been achieved.

iv) The parents were required to ensure that the Claimant was to resume full time education.

33. Unfortunately, to my mind, notwithstanding the content of the Statement of Special Educational Needs, the assessment and care plan in the Claimant's case falls below that which is required by the Framework Guidance and the case law and suffers from many of the criticisms identified by Munby J (as he then was) in R(J) v Caerphilly County Borough Council.
34. The assessments are largely descriptive with little proper analysis of needs. For example at page 112 of the Defendant's bundle under the heading Analysis the assessment refers to the Claimant and her family continuing to need the support of CAMHS (SCAN) for the foreseeable future but there is no apparent understanding of the Claimant's mental health problems or what services she actually needs. Similar considerations apply to respite care on the same page. There is no indication from the assessment as to what kind of respite is needed or how often it is needed. Similarly, in relation to education there is merely a recital of the educational dispute between the Defendant and the Claimant's parents but no analysis of the Claimant's educational needs. How is the 35 hours of teaching assistant's time per week going to address the Claimant's emotional behavioural and social difficulties and how is the Claimant's self awareness in protecting herself against sexual exploitation to be achieved? In short where is the detail of what is to be done and when? In truth there is no "realistic plan of action" or "detailed operational plan". The only tangible outcomes appear to be:

i) Information about social clubs.

ii) Information about care agencies.

iii) A referral to parent network.

iv) And a potential referral to a Barnados project for sexually vulnerable young people which will not even open until sometime in 2010.

35. The plan such as it is, is for the Claimant's parents to continue to engage with family therapy through CAMH and to ensure that the Claimant returns to full time education which at the moment appears to be wholly unrealistic. There is no offer of therapeutic support to meet the Claimant's undoubted needs as a result of her overly sexualised behaviour. All too often the Defendant's plan is little more than to arrange an appointment with someone else, to explore options. There is a lack of specificity.
36. As to the Claimant's second ground namely that in deciding that the Claimant's needs can be met at Friern Barnet School the Defendant has failed to have regard to its duty to safeguard and promote the welfare of the Claimant as required by Section 11 of the Children Act 2004 it is the Claimant's case, relying on the letter of the Head Teacher, that the nominated school is not suitable since he has put forward a number of objections to the Claimant's placement at the school which are not limited to the availability of one to one support (which is to be provided by the local authority). Indeed his conclusion is that the Claimant's attendance at his school would be a health and safety risk not only for the Claimant but for other pupils.
37. The Defendant for its part urges upon me the submission that this court should not offer any views as to the reasonableness of the contents of the Statement of Special Educational Needs since to do so would be to abrogate the jurisdiction of the Tribunal. I accept that submission so far as the question of whether or not Friern School would be suitable for the Claimant's educational needs is concerned.
38. There is however a wider issue relating to the Claimant's allegation that the Defendant is in breach of its duty under Section 19 of the Education Act 1996. On this issue the Defendant maintains its position that Friern School is suitable provision and therefore constitutes a reasonable and lawful discharge of its duty to provide suitable education within the meaning of Section 19 of the Education Act 1996 and further maintains that the provision of six or seven hours of tutoring at a local library per week in lieu of the Claimant's attendance at mainstream at school does not detract from the Defendant's position that suitable education has been proffered. Moreover it is said that this tuition is not being provided under Section 19 of the Act but under "some other power" relying on R(G) v Westminster City Council.
39. However to my mind, where the head of the school, attendance at which the Defendant says is suitable, regardless of whether it is in fact suitable, states so clearly and cogently that in his view his school is not a suitable placement for the Claimant, it does not seem to me that it can be said that the Claimant's parents have acted unreasonably in preventing the Claimant from attending that school. In which case, it is not reasonably practicable for the Claimant to attend that school and the Defendant should make alternative provision and the decision in R(G) v Westminster City Council can be distinguished. Furthermore there is no power other than under Section 19 by which the local educational authority can provide education other than in school and therefore I conclude that this is the power under which the tutoring is currently being provided.
40. It follows in my judgment that there is a breach of the Section 19 duty in this case because the Defendant is not providing the Claimant with the education which the Statement of Special Educational Needs says she requires – namely full time education in accordance with the National Curriculum.
41. The Defendant's case so far as the Claimant's third and fourth grounds are concerned in summary is that the safeguarding of the Claimant and the promotion of her wellbeing has been at the heart of everything that has been done by the Defendant over a prolonged period of involvement with the Claimant. Whilst I have some sympathy with that submission it does not seem to me that the Defendant has sufficiently addressed what was required under the statutory guidance Safeguarding Children and Young People from Sexual Exploitation 2009. It is simply not sufficient to say as Ms Culberson does at paragraph 9 in her witness statement in the Defendant's bundle at page 105:

"As regards (the Claimant's) exposure to sexual abuse, the London Child Protection Procedures would not be activated as (the Claimant) is currently not at risk of harm, as she is not allowed out alone in the community. Her parents are acting to protect her and we would therefore and have a strategy meeting to discuss this"

The sexual exploitation guidance requires a proactive approach whereas the Defendant's attitude as reflected in Ms Culberson's statement is reactive and the conclusion which is inevitably to be drawn is that at least since 2008 the Defendant has only engaged with the Claimant's needs in relation to sexual exploitation when there has been some sort of incident and even then the response has been inadequate. Moreover, to my mind it really is not good enough to refer to a service which is not even open and is unlikely to be open for another six months as a sufficient discharge of its duty to take a proactive approach.

42. In summary, as a result of failings by the Defendant, this Claimant, a very vulnerable 15 year old with learning difficulties and hearing problems and at very high risk of sexual abuse, has effectively been confined to the family home through no fault of her own receiving only a few hours of tuition a week without any therapeutic or other support. There is an absence of a detailed operational plan to meet this Claimant's needs. More could and should have been done.

Conclusion

43. It follows in my judgment that permission should be granted, the application for judicial review allowed and the appropriate declaratory and mandatory relief should be granted. I trust that between them, Counsel for the parties will be able to agree on the draft of the order to reflect the thrust of my judgment.
44. If the parties are unable to agree the terms of an order including appropriate provisions as to costs then they should each file and serve a skeleton argument setting out their proposed draft order together with any supporting arguments all of which I will consider on paper before formulating the final form of the order I propose to make when handing down the judgment.

Note 1   Report of 14th October 2008 Permission bundle B page 44 at page 55.    [Back]

Note 2   Child and Adolescent Mental Health Service.    [Back]

Note 3   Social Club.    [Back]