M (A Child), Re [2007] EWCA Civ 1550

Case No B4/2007/0948

[2007] EWCA Civ 1550

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION

(MR RECORDER McCARTHY QC)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 25 th October 2007

Before

LORD JUSTICE WALL

MR JUSTICE HOLMAN

IN THE MATTER OF M (a Child)

(DAR Transcript of

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Ms Jones (instructed by Messrs Fisher Meredith LLP) appeared on behalf of the Appellant.

Mr Presland (instructed by Chief Executive’s Directorate) appeared on behalf of the Respondent.

Judgment

[1]I will call MG the mother. She has two children. The elder, S, is now aged 13. This appeal does not directly concern that child. The younger, K, was born on 24 March 1996, so he is now aged 11. As long ago as December 1999, full care orders were made placing these children in the care of the London Borough of Tower Hamlets. However, in May 2001 that local authority, still acting under the care orders, returned the children to live with their mother. They then lived with their mother until June 2005, when they effectively ran away from home. They were once again fostered by the local authority and continue to live with foster parents to this day.

[2]As well as difficulties in their care by their mother, it is clear that there have been, and are, difficulties with the education of each of these children. Each of them is the subject of a statement of educational needs. In the case of K, that is said to be due to, and based upon, emotional and behavioural difficulties. The mother strongly disagrees with the content of the present statements in relation to each of her children. So far as K is concerned, she made a formal appeal under the Education Acts to the SENDIST on 9 March 2007. In preparation for that appeal she instructed a firm of solicitors, specialist in education matters, to act for her.

[3]On 9 March 2007 those solicitors wrote a letter to the local authority, now at bundle page 96. In that letter they said:

“We are writing to inform you that we have been instructed by [Miss G] to lodge an appeal against Parts 2, 3 and 4 of K’s statement of special education needs with the Special Educational Needs and Disability Tribunal. To assist us with our appeal we have instructed [a named educational psychologist] to carry out an assessment and report on K’s special educational needs. As he is currently living with a foster carer we have asked the educational psychologist to contact you to make the necessary arrangements. We have also instructed [a named speech and language therapist] to carry out a speech and language therapy assessment and produce a report. Again we have asked them to contact you to arrange an assessment date.”

[4]The local authority promptly replied by a letter dated 14 March 2007, now at bundle page 97. In that letter they said:

“You may be aware that your client has issued an application in the Principal Registry of the Family Division wherein she seeks to discharge the care orders in respect of her children. The final hearing is listed for the 19th April with a time estimate of two days. Our instructions are that K has been subjected to two such assessments within the last 18 months and we feel a further assessment would be abusive. In the circumstances we would not be prepared to facilitate the appointments you have requested before the 19th April.”

The local authority went on to make plain that they intended to raise this matter as part of the forthcoming hearings.

[5]The solicitors for the mother then replied by a further letter, dated 14 March 2007, now at bundle page 98, in which they made plain their view that the mother was entitled to obtain, and indeed must obtain if her appeal was to have any prospect of success, assessments of her own, independent of the local authority.

[6]The hearing then came on before Mr Recorder Roger McCarthy QC in April. He had a number of issues to consider. First, there was the underlying application by the mother for a discharge of the care orders: Second, and in the event that that application was unsuccessful, there was an application by the mother for contact. Third: this whole question of whether or not there should be further assessments of K for the purpose of the appeal to SENDIST, was raised before him. After a hearing of some days and hearing a body of oral evidence, Mr McCarthy QC gave a judgment on 20 April 2007. He rejected the application for discharge of the care orders and, indeed, was not willing to make any orders for contact. He then considered the issue of further assessments. The mother’s attitude to education was clearly relevant to all the matters that he had to consider. He said at paragraph 73 of his judgment, now at bundle page 124:

“I find that the mother has wanted to limit the children’s educational opportunities to make sure they went to special schools, and that she has done so for no very good reason. I find that the mother has taken a very idiosyncratic view of the special needs of the children.”

At paragraph 76 on bundle page 125 he said:

“I see with great concern in the papers and heard in the evidence the range of different types of school mother was suggesting for K, and also S. That gives me, I am afraid, a very pessimistic view of the mother’s ability to make sensible decisions about the children’s education and take proper account of what they need. It seems to me that the mother’s view of her children’s needs is rigid and self-contained. It is basically excessively over-protective. I find that the mother has a complex and detailed set of beliefs, which regulates what in her view the children should and should not be allowed to do, and this dictates the freedom she is prepared to allow them.”

Later at paragraph 91 on bundle page 130 he said:

“[…] I also look at the children’s educational circumstances. I have been invited to consider by the local authority what is to be said about this. Inevitably there is a limit to what I can say, but I am not a SENDIST chairman, and I do not have all the evidence which the parties might wish to put before an appeal. But I do say that on the available evidence, the local authority’s proposals for the children’s education appear to be eminently sensible. It seems to me the local authority have been flexible and taken appropriate advice about these children’s educational needs, and that the plans they made to look positively at the prospect of mainstream education are directly beneficial to these children and should continue to be promoted.”

At paragraph 95 he said:

“As I said already, this is not a SENDIST appeal, I am not going to pretend that it is. But my view on the available evidence is that the local authority’s educational proposals meet these children’s needs.”

[7]All those observations were made in the context of his general consideration of whether or not to discharge the care orders and, indeed, in relation to contact. He then came on expressly to consider, and deal with, the application that had been informally but clearly made by the local authority for an order under section 91(14) of the Children Act 1989, in relation to some application for assessment of the children and their educational needs. He said at paragraph 103:

“I then move to the section 91(14) application that has been floated by the local authority in these proceedings […]”

[8]He rejected in that and the ensuing paragraphs an application that had been made for what he called an “overall” restriction under section 91(14), but then turned in paragraph 105 expressly to deal with the more limited application for a direction under section 91(14), specifically in relation to education and further assessment. He said:

“The position, however, is different in relation to one free standing issue, and this relates to the proposal relating to […] assessments of K for the purpose of the SENDIST appeal […] On the available evidence I agree […] that to submit K to further assessment of this sort would be intrusive, unnecessary and abusive. It seems to me that to allow such applications for the foreseeable future would be contrary to K’s welfare. And I think it therefore in K’s interest, given the amount of uncertainty in the past and the number of assessments there have been in the past, to impose an extra hurdle in the way of any attempted assessments of him for these purposes. I do not prohibit, of course, such assessments absolutely, but I intend to control them and make sure there can be no question of such assessments being authorised unless the court has given permission for an application to be made.”

[9]He then determined that, in relation to further assessment by an educational psychologist, the proposed restriction under section 91(14) should be for a period of two years. He expressed that in a sentence at paragraph 108 in which, in the official transcript, there is an unfortunate transcribing error. As transcribed, the sentence reads:

“If there is a change of circumstance in future the position may be different, but for the present I have decided that the section 91(14) order should be made, preventing an application or an assessment by an educational psychologist without permission from the court for a period of two years.”

[10]It is quite clear that the word ‘or’ where it appears in that sentence should in fact read the word ‘for’. There is simply no power at all contemplated within section 91(14) to make any kind of order preventing an assessment. Section 91(14) is entirely directed to restricting the making of applications to the court. I mention that matter, however, for, in the later decision of the SENDIST chairman, Mr Simon Oliver of 26 September 2007 (to which I will later refer), Mr Oliver, in paragraph 6 not unreasonably quoted Mr Recorder McCarthy as having made an order “preventing an application or assessment…” Lest there should be any continuing misunderstanding in relation to that, that correction to the transcript must clearly be made and understood.

[11]Mr Recorder McCarthy then went on to explain why, in relation to any application for assessment by a speech and language therapist, he was imposing a longer restriction for a period of five years.

[12]That judgment was given effect by an order dated 20 April 2007. Paragraph 6 of the order provides as follows:

“Pursuant to section 91(14) of the Children Act 1989, no application by the applicant mother MG be made without leave of the court for an order under the Children Act 1989 giving permission for further expert assessment with respect to the educational needs of the child K (i) by an expert psychologist, until 19 April 2009 and (ii) by a speech therapist until, 19 April 2012.”

[13]The entire focus of the present appeal, as made by the mother, is upon that paragraph of the order. Her appeal argues that the judge should not have made an order in those terms and that that paragraph of his order should be struck out. Meantime, however, there have been further developments in relation to the mother’s current appeal to the SENDIST. There was a hearing for directions on 10 July 2007 before a chairman of the tribunal, Mr Simon Oliver. At that hearing the local authority, in their capacity as the education authority, were represented by Mr Presland -- the same counsel who had appeared on behalf of the local authority in their social services capacity before Mr Recorder McCarthy, and who indeed appears before us today. As a conclusion of that hearing, Mr Oliver directed as paragraph 4 of his

[14]I, for my part, would not make any further reference to the reasoning of Mr Oliver, which extends over a considerable number of closely typed pages, and which considers at some length both the views that Mr Recorder McCarthy had expressed and also a number of authorities on the interrelation between the jurisdiction of the family court under the Children Act 1989 and the jurisdiction of SENDIST under the Education Act 1996. We have been told that the local authority, consistent with their view that it is contrary to the welfare of K to undergo any further assessments, have indicated that they do not propose to obey or comply with that direction made by Mr Oliver in SENDIST. As a result, as we understand it, the mother has already commenced proceedings for judicial review of that decision of the local authority not to comply with that order of SENDIST. As we understand it also, the local authority wish to challenge in the Administrative Court, either by a cross-application in that judicial review, or by some freestanding application of their own for judicial review, the whole question of whether it is possible or appropriate for SENDIST to hear an appeal by a parent in relation to a child who is a child in care. Because of that background of actual or possible further applications to the Administrative Court, Mr Presland has made a powerful submission to us today that we should, in some way, adjourn the present appeal to this court from the decision and order of Mr Recorder Roger McCarthy so as, in effect, to leave a peg for an early appeal to this court from any proceedings which may now take place in the Administrative Court. Indeed, Mr Presland goes further and suggests that this may be underlying by an appropriate case for a leapfrog directly to the Court of Appeal of the judicial review issues pursuant to section 57 of the Access to Justice Act 1999.

[15]I understand and respect the basis of Mr Presland’s submissions. Essentially he says that all these proceedings are loosely to do with the welfare of K. He forecasts that there may be long delays in the judicial review proceedings being heard in the Administrative Court, and even longer delays in some later appeal from that court to the Court of Appeal; and so he submits that the present appeal represents a valuable opportunity to create overall expedition in resolving all these issues in relation to K. I, for my part, however, would not accept that invitation from Mr Presland. The present appeal has been in existence for a six months since a decision reached as long ago as 20 April 2007. It involves a very narrow point, namely, whether or not it was correct of Mr Recorder McCarthy to make the direction that he did under section 91(14). If other, wider issues later arise as to the appropriateness of SENDIST hearing an appeal by the mother at all, then clearly SENDIST may require to be heard on those issues and, it seems to me, that altogether they raise a much wider canvas than that which is currently before us. I, for my part, would strongly resist saying anything at all today which in any way affects or impacts upon any of those wider issues.

[16]I therefore return to the very limited issue that is directly raised by this appeal, namely, whether or not Mr Recorder McCarthy QC should, or should not, have made an order in terms of paragraph 6 of his order. Section 91(14) of the Children Act 1989 provides as follows:

“On disposing of any application for an order under this Act, the court may […] order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

[17]It must first be observed that the mother herself had not in fact made any application at all to the family court for any further assessment of K. All she had done, through her solicitors, was write the letter of 9 March 2007 which I have already quoted. It was simply as a response to that letter, in which the solicitors asked the local authority to make K available for assessment, that the local authority had asked for a direction under section 91(14). Further, however, and more fundamentally, there is no application that the mother could have made, or ever could make, for an order under the Children Act, in relation to assessment of K for the purposes of her appeal to SENDIST. The only type of order that she might theoretically be able to apply for under that Act is a specific issue order under section 8 of the Act. However, an application for such an order is absolutely precluded in relation to a child who is a child in care, by the effect of section 9(1). That provides as follows:

“No court shall make any section 8 order, other than a residence order, with respect to a child who is in the care of a local authority.”

[18]The very short submission made by Ms Jones on behalf of the mother is that it was not appropriate to make any formal direction under section 91(14) in this case, restricting the mother from making an application of a kind which it was not open for her to make anyway, because effectively precluded by the effect of section 9(1). I stress that Ms Jones does not in any way suggest that the judge strayed beyond his proper bounds in making all the general observations that he made (some of which I have quoted) with regard to K and his education and the attitude of the mother. But her short point is that he went too far in making a formal order under section 91(14).

[19]Mr Presland’s only effective submission in answer, is that there is some belt and braces value in a direction under section 91(14). Although section 9(1) prevents a court from making any section 8 order, it does not in terms prevent her from making an application for such an order. So, he submits, there is some value in having the section 91(14) direction in the terms in which it was made. I, for my part, cannot accept that submission. There is absolutely no history here of the mother making applications which are not open to her within the framework of the Children Act. It seems to me that the section 91(14) direction was not one that it was properly open to Mr Recorder McCarthy to make. It is, in my view, something of an embarrassment, or irritant generally in this case, because it may appear to convey the exercise by the family court of a power to restrict assessment of the child which the family court, acting under the Children Act, simply does not possess. For those reasons, I would allow this appeal and I would set aside paragraph 6 of the order of 20 April 2007.

[20]I entirely agree. I add simply that I see from the form of order which I made on 22 July that this application was to be listed for oral hearing on notice to the local authority, with appeal to follow if permission granted. It therefore follows that we need to grant permission to appeal but, like my Lord, I would allow the appeal by deleting from the order of Mr Recorder McCarthy of 20 April 2007 paragraph 6 of that order.

order

“Notwithstanding the order of Mr. Recorder McCarthy QC, I direct that the local authority do make K available for an assessment by both a clinical (or educational) psychologist and a speech and language therapist within 21 days of the date of this decision.” Order: Appeal allowed