NAA (by his litigation friend NAD) v an Independent Review Panel

Hearing dates: 7 and 8 May 2025

Post-hearing submissions: 14 and 16 May and 11 and 17 June 2025

APPROVED JUDGMENT

Upper Tribunal Judge Ward (sitting as a Judge of the High Court):

Introduction

The case came before me as a rolled-up hearing for permission to bring judicial review proceedings and, if permission were given, the substantive proceedings.

The case is significant in that it concerns the interaction between protective mechanisms under the Modern Slavery Act 2015 (“the 2015 Act”) and the procedures which resulted in decisions to permanently exclude the Claimant from the school he attended.

The grounds of challenge have evolved – and in the Defendants' submission are inadequately pleaded. I say more about that below. What is clear is that there is no longer any challenge to a decision by the Governing Body who were formerly the Second Defendant. It is common ground that their correct status is now as Interested Party. For ease of reference, I refer to the school concerned simply as “the school”.

Structure of decision

The structure of this decision in this comprehensively argued case is as follows:

Act, s.52:

Art. 4 ECHR

Challenge to decision of First Defendant (IRP)

Delay

Senior Courts Act 1981 s.31(2A) – (3F)

Summary of facts

The Claimant (variously “N” and “NAA”) was born in 2007. He participates in the proceedings by his mother, his litigation friend. The incident which led to his exclusion occurred on or around 2 March 2022 and involved him, while a Year 10 pupil, selling drugs to another, younger, pupil (“Student X”) and then sending explicitly violent threats by text message and voicemail to that pupil when seeking payment.

On 18 January 2022, Daniel Cain-Read, Assistant Head Teacher and SENCO (Special Educational Needs Coordinator) of the Haringey Learning Partnership (“HLP”), which the Claimant was then attending on a one-month respite placement, made a referral to Haringey's Multi-Agency Safeguarding Hub (“the MASH”). The referral to the MASH recorded teachers' observations about N smoking cannabis and N's mother's evidence that previous attempts had been made to recruit N into “County lines” operations, but that she and the family had so far managed to thwart them. Mr Cain-Read sought community mentoring to support N, given the risk of child criminal exploitation (“CCE”).

On 24 January, the local authority conducted a CCE risk assessment, concluding that the Claimant was at high risk, corresponding to what was described as “Category 4 High Risk – RED RAG and level 4 of the HCYPS threshold guide.” The reference is to the Haringey Safeguarding Children's Partnership (HSCP) Thresholds Guide (Long Version) v2 October 2019. Level 4 refers to a “child who has suffered, or is at risk of suffering, significant harm requiring intensive statutory/specialist support i.e. Children's Social Care or Youth Offending Service”. The Guide goes on to address a range of types of concern. The difference between level 4 and level 3 — the next one down — can be illustrated by, for example, the rubric under “Gangs” where a level 3 indicator is “Child is involved in challenging behaviour and may be at risk of gang involvement” whereas level 4 refers to a “child…currently involved in persistent or serious criminal activity.”

On 28 January Mr Cain-Read followed up, requesting a discussion the following week and pointing out (among other things) that on dates (all of which post-dated his original referral) that:

— N had been arrested after an alleged mugging;

— N had “arrived at school smelling very strongly of cannabis and appeared to be under the influence. A search of the student revealed nothing, however, we believe [N] may [have] hidden cannabis on his person, as the smell became very strong throughout the day”; and

— on 5.1.22 and 28.1.22, another student was seen giving N money.

He concluded by saying that “We are incredibly concerned that [N] may be being groomed and may be grooming other vulnerable younger students.”

On 1 February 2022, Ms Geeta Patel, then N's social worker, conducted an assessment under section 17 of the Children Act 1989. The Claimant did not cooperate and eventually walked out. The assessment records, among other things:

“What are we worried about?

— [N] may be being groomed by gang members …

— [N] exposing himself to concerns of CCE

What needs to happen? — Contact with [N's mother] / Home visit

— Contact with relevant professionals

— Referral to exploitation Team

Danger Statement: It is highly likely [N] will continue to be groomed, manipulated and exploited if he does not engage with services to prevent this.”

A “scaling question” was answered with “5”.

Rubina Mazher, the local authority's Head of Assessment and Safeguarding Services, explains in evidence that it is a 10 point scale. As to the exploitation team, she explains that it

“holds multiagency local intelligence in relation to gang activities and expertise in mapping work. The purpose of referral to the exploitation team would be to contribute to the assessment of NAA's needs by providing information on issues relating to exploitation, grooming and gang activities.”

On 8 February, N returned to the school following the completion of the placement at HLP. On 2 March, the mother of Student X reported the index incident described at [5]. The school informed the HLP and Mr Cain-Read informed the police.

After having arrested and interviewed N, the police on 19 March 2022 completed a referral form to the National Referral Mechanism (“NRM”), the first step in the modern slavery mechanism. On 21 March the local authority was informed that the referral had been made. On 22 March the Single Competent Authority (“SCA”), responsible for NRM decisions under the 2015 Act, made a positive “Reasonable Grounds” decision i.e. reasonable grounds to conclude that the Claimant was a victim of modern slavery. The SCA notified the local authority that same day and by a series of emails between then and 16 June 2022 requested the local authority to provide further information. It appears that the notification and ensuing emails were not saved on N's file by the social worker then handling the case (not Ms Patel) and were not responded to.

The outcome following the earlier referral to the MASH was a decision on 30 March 2022 to refer the case to the Youth Offending Service, as agreed with N's mother.

On 1 April the Co-Headteachers of the school, referred to in this decision as “Headteacher A” and “Headteacher B”, issued a permanent exclusion with immediate effect. Following meetings on 9 and 23 June, the Governors' Disciplinary Committee (“GDC”) declined to reinstate N. On 16 December 2022, following a hearing held on 22 November, an Independent Review Panel (“IRP”) declined to reinstate N.

On 13 March 2024, the SCA, having reconsidered an earlier negative Conclusive Grounds decision, made a positive Conclusive Grounds decision that N was a victim of modern slavery in the form of child criminal exploitation by way of forced drug dealing.

Issues the Court is invited to consider

These proceedings concern:

(a) a challenge to the decision by the IRP dated 16 December 2022 to uphold the decision that N be permanently excluded; and

(b) a claim that the Second Defendant (hereafter “the local authority” or “Haringey”) breached section 52 of the Modern Slavery Act 2015 between 18 January 2022 (the referral to the MASH) and 21 March 2022 (when the local authority was informed of the referral the police had made to the SCA); and that the local authority owed a duty under art.4 ECHR, because of the matters giving rise to the alleged breach of s.52 and/or the Reasonable Grounds decision of 22 March 2022 and (though the local authority object to substantial parts of what follows, as will be seen below) breached that duty by any or all of the following respects:

(i) failing to make a referral to the SCA;

(ii) not referring the Claimant to its “exploitation team”;

(iii) having identified (as the authority should have done) that there were reasonable grounds for concluding that N was...