JG and Another v Kent County Council TG (by his litigation friend, the Official Solicitor) and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] EWHC 1102 (Admin) |
| Docket Number | Case No: CO/5393/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 May 2016 |
[2016] EWHC 1102 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: CO/5393/2015
and
Christopher Buttler (instructed by Maxwell Gillott) for the Claimants
Hilton Harrop-Griffiths (instructed by Kent County Council) for the Defendant
Sarah Hannett (instructed by Ben Hoare Bell) for the 1 st Interested Party
The 2 nd Interested Party did not appear and was not represented
Hearing dates: 13 th–15 th April 2015
Introduction
TG was born on 9 th May 2001 and so he is now 14. He is a troubled child. In March 2015 he was diagnosed by psychiatrists at the Maudsley Hospital as suffering from unsocialised conduct disorder with mixed neurodevelopmental difficulties. This manifests itself in sudden and violent outbursts of rage.
The Claimants in the first of what are effectively two applications for judicial review before me are TG's parents. Apart from T, the Claimants have four other children. In descending age, they are: AG, a boy, born on 24 th November 1996 (AG has low IQ and mental health problems and autism); SG, a girl, born on 21 st July 1999; TG's twin sister whom I shall refer to as TwinG (and who, herself has learning difficulties); WG, a boy, born on 30 th October 2002.
When the events with which I am concerned commenced, the Claimants and all of their children lived together in Kent. On 30 th May 2014 Kent County Council ('KCC'), the Defendant, made a Statement of Special Educational Needs in relation to TG. Part 4 of the Statement identified X Community Special School ('X') as the placement where TG should receive his education. At that stage TG was 13.
TG's bouts of violence became more pronounced. I will need to give more detail later. At the moment, I just wish to explain the shape of the litigation. On 18 th November 2014 the Social Services Department of KCC conducted an assessment of the family. Thereafter, the social worker allocated to the family was Zena Woods. From 1 st January 2015, her work was overseen by Fiona Coombs, a social work team manager. KCC arranged for the family to have a series of sessions with a programme called Stronger Safer Families ('SSF') between December 2014 and February 2015. In the short term this alleviated the position. However, TG's violent outbursts continued. He was at times violent towards other members of his family. TwinG and TG's younger brother, WG, were particularly alarmed and frightened by this behaviour which included assaults on them.
From about March 2015 TG's parents were asking KCC to amend TG's statement of special educational needs to specify a different school. X was a day school and they wished KCC to name instead a residential (i.e. boarding) special school. That did not happen. Again, I will postpone giving further detail.
On 5 th May 2015 there was an incident in X in which TG hit another child, strangled him, headbutted the wall, went behind a boy, pulled his hair and threatened to stab him with a breakfast knife. TG was sent home and, thereafter was not permitted to return to X. On his return home that day, TG threatened to stab MG with a culinary knife. He punched his mother in the throat and hit his sister, SG. TG turned the knife on himself and caused a superficial wound to his throat and arm. The police were called. They considered tasering TG, but decided against it for fear of causing him injury.
The parents renewed their efforts for the statement of special educational needs to be amended to specify a residential school. Although they were given the impression that this was actively being considered by KCC, by the middle of June the Social Services Department had reached the view that it would not contribute to the funding of such a placement and this operated as an effective veto.
On 28 th August 2015 TG tried to strangle WG. His father succeeded in pulling him off.
At about this stage, MG decided that he would take TG with him to stay with his parents who lived near Sunderland. He described this as an 'extended holiday' until KCC either arranged for a residential school placement for TG or provided some alternative accommodation in Kent for him and his son.
On 19 th October 2015, KCC took the view that TG had now moved to Sunderland. They closed their social services file on him and passed the educational file (including his statement of special educational needs) to Sunderland. Sunderland initially agreed to take over responsibility for TG's education, but they subsequently took the view that TG and his father were in their area only temporarily and, in consequence, responsibility in their opinion remained with KCC.
MG and JG have been granted permission to apply for judicial review by HHJ McKenna, sitting as a Deputy Judge of the High Court. They allege that KCC were aware that TwinG, and WG were at real and immediate risk of ill-treatment within the meaning of Article 3 of the European Convention on Human Rights ('ECHR') from TG and they failed in their operational duty to take reasonable steps to prevent that ill-treatment. MG and JG also allege that KCC failed to carry out the duties imposed on them by ss.17, 20 and 47 of the Children Act 1989.
TG was named as an interested party to his parents' claim. TG has the Official Solicitor as his litigation friend. On his behalf, the Official Solicitor has endorsed the parents' claim, but he has also raised what is in reality a second claim for judicial review.
In this second claim, it is alleged that KCC have been in breach of various obligations to TG and his parents in KCC's capacity as the local education authority. These included obligations which they owed to TG as a child of compulsory school age and as the beneficiary of a statement of special educational needs. In particular, the Official Solicitor on TG's behalf alleges that KCC acted unlawfully on 19 th October 2015 in treating Sunderland as responsible thereafter for seeing that TG received the education which the statement required.
Alexander Nissen QC, sitting as a Deputy Judge of the High Court, directed that there should be a rolled-up hearing of TG's claim for judicial review and that this should take place at the same time as the hearing of the substantive claim by JG and MG. Accordingly, the hearing before me was to determine (a) whether JG and MG had made good their claim, (b) whether TG should be granted permission to apply for judicial review, (c) whether TG had made good his claim.
Sunderland were named as an interested party by TG in his claim. They did not appear at the hearing and were not represented. However, I received a witness statement from Annette Parr, the lead Support and Intervention Officer for Sunderland dated 11 th April 2016.
Mr Nissen had also made directions that JG, MG and Fiona Coombs should be available for cross examination on their witness statements. Accordingly, I heard oral evidence from them as well as receiving the documentary evidence which the parties had assembled.
The facts in further detail
TG's difficulties have been longstanding. The Claimants first sought help from KCC in dealing with his behaviour in about 2013. At the hearing Mr Buttler, on their behalf focussed on the events from the middle of 2014. In a letter dated 9 th July 2014, Dr A.A. Siddiqui, consultant paediatrician at the Children's Assessment Centre for Kent and Canterbury Hospital summarised the position in this way,
'For the last 3 years, TG [in this and subsequent quotations I will adopt the anonymization which is necessary although, in the original documents, names were used] has been experiencing episodes, very suddenly with quite severe rage…He becomes violent and uncontrollable and needs to be restrained physically…The longest one lasted for about 1 1/2 hours and his parents had to call the police who arrested him and took him to the police station where he spent the night and was given a caution for battery. In between his behaviour is much calmer and normal. Mother said that on average he gets an attack every 10 days.'
As will be apparent, this pattern of violent rages interspersed with periods of calm, was to recur throughout the following year.
Even by this stage there were reports of TG being aggressive to other children at school (see the letter from Dr Nasir, Locum Consultant psychiatrist 14 th November 2013), of TG punching a teacher in the throat and trying to strangle him (see the letter from Dr Nasir 20 th January 2014), and of TG threatening to harm his parents and siblings (see for instance the Social Services file record for 2 nd April 2013). On 22 nd April 2014 a file note by Ms Beverley Taylor refers to WG, but Mr Buttler submitted, and I accept, that this must be an error and it was actually referring to TG. This note commented that he
'is extremely violent at times to family members and people out of the home. He beats his sister and his brothers and this is in the form of punching kicking and he tries to strangle them.'
Ms Taylor's recommendation was that
'an assessment is required as mother is struggling to cope with the behaviour of TG and this is impacting on the safety and well-being of the other children in the home…In line with the Kent and Medway Inter-Agency Threshold Criteria for Children in Need it is my considered view that criteria for Tier 4 services are met.'
'Tier 4 criteria' are defined as those where...
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