R v Barnet London Borough Council, ex parte B and Others
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Queen's Bench Division |
Local authority – children in need – decision to close day nursery – children at nursery applying for judicial review – whether local authority had engaged in adequate consultation – whether in breach of duty to provide day care for children in need – whether judicial review appropriate in view of complaints procedure available to parents.
Six young children aged 5 or under were children in need within s 17 of the Children Act 1989. They were among those attending a day nursery provided by the local authority pursuant to their responsibilities under ss 17 and 18 of the 1989 Act. In January 1992 officers of the local authority had prepared a report which, inter alia, recommended closure of the day nursery. During 1992 this question was discussed further within the local authority. In January 1993 the local authority wrote to the parents of the children attending the day nursery informing them that it was proposed that the day nursery be closed and replaced by another nursery. On 4 and 12 February 1993 officers of the local authority met with parents individually. On 17 February the social services committee of the authority met and appeared to have decided to reduce the number of places at the day nursery from 50 to 25 and to close the nursery altogether in Sepember 1993. That decision was confirmed by the council on 4 March 1993. On 11 March 1993 an officer of the local authority wrote to the parents informing them of that decision. On 23 April 1993 the officer wrote to them again suggesting that no firm decision to close the nursery had been made. In July 1993 an officer of the local authority wrote stating that closure of the nursery was being considered and proposing consultation. This took place during the subsequent weeks. The parents argued against closure. On 8 September the social service committee recommended closure of the nursery and this recommendation was accepted by the council on 14 Sepember 1993.
The children, by their parents as next friends, applied for judicial review of the local authority's decision of 14 Sepember 1993 to close the nursery on three main grounds. First, that the authority had decided in February or March 1993 to close the nursery or had committed themselves to do so without adequately consulting the parents. Second, that the authority's decision was irrational in that they failed to have regard to relevant factors, in particular their duties under ss 17 and 18 of the 1989 Act; that they had wrongly had
1994 2 FCR 781 at 782
regard to irrelevant factors; and that they had given undue weight to the relevant factors of their financial position. Third, that in the above respects and in their failure to consult with the parents on the conduct of their s 19 review for 1991/92 and to complete and publish that review, the authority's decision to close the nursery was a failure of their duty under s 17 of the 1989 Act to safeguard and promote the welfare of the applicants as children in need.
The children further applied for an order of mandamus directing the local authority to review their provision for day care for children under 8 for the year beginning 14 October 1991, and to publish the result of such review, pursuant to s 19 of the 1989 Act.
Held – dismissing the applications: (1) Notwithstanding the earlier proposal to close the nursery, the local authority had reopened the debate in the summer of 1993 so that, at that time, the proposals were still at a formative stage. The local authority had provided the parents with a great deal of information and fully explained the reasons for their proposal. The authority had also given the applicants a reasonable opportunity to make their representations. There was no basis upon which it could be found that this was not a genuine exercise by the local authority in consultation. The authority had embarked upon the consultation process prepared to change course if persuaded by it to do so.
R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 followed.
(2) By ss 17 and 18 of the Children Act 1989 the local authority were under a general duty to provide day care for children in need, but the terms of the statutory provisions allowed local authority a measure of judgment and discretion in a field in which they had considerable expertise. It was essentially a matter for the local authority and not the court to decide what consideration and what weight should be given to the circumstances of any individual child or children when his or their needs might conflict with the appropriate provision overall. In the circumstances of this case it could not be said that the local authority had acted irrationally or with Wednesbury unreasonableness.
(3) The local authority's failure to complete and publish the result of their 1991/1992 review under s 19 of the Children Act 1989 might have been in breach of their duty under that section. But it was doubtful whether resumption now of the 1991/1992 review would be relevant to the authority's review obligation for the current three-year period which had begun over a year previously and there was little practical point in considering an order for mandamus for a resumption now of the review. In any event, any breach by the local authority of their duty under s 19 to review their provision of day care under s 18 and to publish the result of such review as required by s 19(6), did not put them in breach of their duty under ss 17 and 18. Even if the applicants had made out a case in law for judicial review of the decision of 14 Sepember 1993 the court would not have granted relief. That was because s 26(3) of the Act provided an individual remedy to a child in need to complain about failure by local authority to provide him or her with appropriate day care and a failure by the local authority to follow the statutory procedure stipulated in that section was remediable by application to the Secretary of State to exercise his default powers under s 84 of the Act.
1994 2 FCR 781 at 783
Statutory provisions referred to: Review of Children's Cases Regulations 1991.National Assistance Act 1948, ss 21 and 36. Cases referred to in judgment:Children Act 1989, ss 17, 18, 19, 20, 21, 22, 23, 24, 26, 81, 84, and Sch 2.
Children and Young Persons Act 1969, s 1.
Education Act 1944, s 8(1).
Local Authority and Social Services Act 1970, s 7.
Representations Procedure (Children) Regulations 1991.
[Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223; [1947] 2 All ER 680].
Attorney-General, ex rel Tilley v London Borough of Wandsworth [1981] 1 WLR 854; [1981] 1 All ER 1162.
Attorney-General of Hong-Kong v Ny Yuen Shiu [1983] AC 629; [1983] 2 WLR 735; [1983] 2 All ER 346.
Calvin v Carr [1980] AC 574; [1979] 2 WLR 755; [1979] 2 All ER 440.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 WLR 1174; [1984] 3 All ER 985.
Creed NZ v Governor General [1981] 1 NZLR 172.
Findlay, Re [1984] 3 WLR 1159.
Laker Airways Ltd v Department of Trade [1977] AC 625; [1977] 2 WLR 234; [1977] 2 All ER 182.
Lloyd v McMahon [1987] AC 625; [1987] 2 WLR 821; [1987] 1 All ER 1118.
O'Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER 1124.
R v Amber Valley District Council, ex parte Jackson [1985] 1 WLR 298; [1984] 3 All ER 501.
R v Brent Housing Benefit Review Board, ex parte Connery (1989) 22 HLR 40.
R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168.
R v Devon County Council, ex parte Baker and Johns; R v Durham County Council, ex parte Curtis and Broxson (1992) 11 BMLR 141.
R v Hillingdon London Borough Council, ex parte Goodwin [1984] ICR 800.
R v Inner London Education Authority, ex parte Ali and Another (1990) The Times, 21 February.
R v Kent County Council, ex parte Bruce (1986) The Times, 8 February.
R v Sutton London Borough Council, ex parte Hamlet (unreported) 26 March 1986.
R v Waltham Forest London Borough Council, ex parte Baxter and Others [1988] QB 419; [1988] 2 WLR 255; [1987] 3 All ER 671.
R v West Sussex County Council, ex parte Wenman (unreported) 20 May 1992.
Rollo v Minister of Town and Country Planning [1949] 1 All ER 13.
Taylor v Munrow (District Auditor) [1960] 1 WLR 151; [1960] 1 All ER 455.
Waldron, Ex parte [1986] QB 824; [1985] 3 WLR 1090; [1985] 3 All ER 775.
Jane Hoyal and Tracey Bloom for the applicants.
Roger McCarthy for the local authority.
Judgment Mr Justice Auld.These are applications of six children by their parents as next friends for judicial review of a decision made by the London Borough of Barnet ("the council") on 14 Sepember 1993 to close on 8 October 1993 the Kingswood Day Nursery in Hendon Avenue, Finchley, London N3, a day care nursery provided by the council pursuant to its responsibilities under ss 17 and 18 of the
1994 2 FCR 781 at 784
Children Act 1989. The applicants also seek an order of mandamus directing the council to review, and to publish the result of such review, its provision for day care for children under 8 in its area for the period 14 October 1991 to 14 October 1992, pursuant to s 19 of the Act.
Part III of the 1989 Act, the relevant provisions of which came into force on 14 October 1991, introduced a new and comprehensive statutory code for local authority support for children and families. In particular, it provided in ss 17, 18 and 19, for, inter alia, the provision of services for children in need and other young children and their families, and in ss 20 to 24 for looking after children by, inter alia, providing them with accommodation. As to children in need, s 17(10) defines a child as 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 …;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services;
(c) he is...
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