R v Cornwall County Council, ex parte E
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 04 November 1999 |
| Neutral Citation | [1999] EWHC J1104-13,[1999] EWHC J1104-8 |
| Judgment citation (vLex) | [1999] EWHC J1104-7 |
| Docket Number | Case No: CO/865/99 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 November 1999 |
[1999] EWHC J1104-13
IN THE HIGH COURT OF JUSTICE
CROWN OFFICE LIST
QUEEN'S BENCH DIVISION
The Hon Mr Justice Scott Baker
Case No: CO/865/99
Mr R Guy, instructed by Grylls, Paige & Exelby, Cornwall, R15 2SD, appeared on behalf of the Applicant
Miss E Laing instructed by Legal Services, Cornwall County Council, appeared on behalf of the Respondent
Thursday 4 November 1999
Cornwall County Council, the Respondent, does not as a matter of policy permit the attendance of a solicitor to represent a parent at a Child Protection Conference. Nor, as a matter of policy, does it permit a parent who has attended such a conference to be provided with a copy of the minutes. The Applicant seeks judicial review of decisions in respect of a Child Protection Conference held on 22 January 1999 to consider the welfare of her children (i) not to allow the presence of her solicitor and (ii) not to provide her with a copy of the minutes. It is said that other local authorities take a different view. The present situation has for some time been a matter of concern to solicitors practising family law in Cornwall.
The Applicant is the mother of J, K and S. She has a history of mental instability and has had psychiatric care as an inpatient. Private law proceedings were taken in the Truro County Court in respect of K and S and the local authority was invited to make an investigation under Section 37 of the Children Act 1989. Interim care orders were eventually made in respect of K and S on 28 January 1999. The Truro County Court had adjourned on 18 January pending the outcome of the Child Protection Conference on 22 January. Mr Trevor King, a local solicitor and member of the Law Society's Children Panel represented the Applicant in all private and public law matters. He wished to attend the conference and wrote to the County Council on 18 January:
"It is our belief that we should be entitled to be present at this case conference so that we know immediately what has been discussed and are in a position to properly represent our client at the adjourned hearing of this matter on Thursday 28 January.
We understand Cornwall County Council operates a policy whereby the parents of children are not entitled to have legal representation at case conferences. We, of course, believe that to be an inappropriate position for the local authority to adopt but nevertheless, specifically seek in the context of this case an agreement by the local authority that we may be permitted to attend with our client even if on this occasion it is only in the guise of an observer."
The Respondent replied on 21 January 1999:
"I have now been able to take instructions from the senior management of the Social Services Department. As you are aware, it is not Cornwall County Council's Social Services Department's policy to allow legal advisers to attend child protection conferences. The contents of your letter have been noted but it is felt there are no exceptional circumstances which should persuade the local authority to aver (depart) from its policy."
Mr King nevertheless went to the conference and reiterated his request to stay. He was allowed to make representations on behalf of the Applicant and then asked to leave. He then said the Applicant wished him to remain as a friend and the Committee guidelines permitted a friend or relative to be present but he was told that solicitors could not be regarded as friends. Accordingly he left.
The same afternoon he returned to Social Services offices where the Applicant was given documents referred to as "recommendations of the case conference". Mr King had been told by the Chair of the conference that minutes could only be disclosed by order of the Court. He obtained them by this route on 24 March 1999.
Section 7 of the Local Authorities Social Services Act 1970 provides that:
"(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidelines of the Secretary of State."
Section 7A makes similar provision for local authorities to exercise social services functions in accordance with directions given by the Secretary of State.
In R -v—Islington LBC ex parte Rixon (1996) 1CCLR 119 Sedley J said at 123G:
"What is the meaning and effect of the obligation to "act under the general guidelines of the Secretary of State?" Clearly guidance is less than direction, and the word "general" emphasises the non prescriptive nature of what is envisaged. Mr McCarthy, for the local authority, submits that such guidance is no more than one of the many factors to which the local authority is to have regard. Miss Richards submits that in order to give effect to the words "shall …………..act," a local authority must follow such guidance unless it has and can articulate a good reason for departing from it. In my judgment Parliament in enacting Section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of guidance on a par with the many forms of non statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things and while "guidance does not compel any particular decision" ( Laker Airways Limited -v—Department of Trade [1967] QB 643, 714 per Roskill LJ), especially when prefaced by the word "general", in my view Parliament by Section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance with liberty to deviate from it where the local authority judges on admissible grounds that there is a good reason to do so, but without freedom to take a substantially different course."
At p125i he pointed out that a failure to comply with the statutory policy guidance is unlawful and can be corrected by means of judicial review.
I adopt these observations of Sedley J, as he then was, as a correct statement of law.
The guidance in the present case is in the form of a booklet called "Working Together under The Children Act 1989." It is issued under Section 7 of the Local Authorities Social Services Act 1970. The preface recites that the document does not have the full force of statute but should be complied with unless local circumstances indicate exceptional reasons which justify a variation.
The material provisions of the guidance are:
"6.1 The child protection conference is central to child protection procedures. It is not a forum for a formal decision that a person has abused a child . That is a matter for the courts. It brings together the family and the professionals concerned with child protection and provides them with the opportunity to exchange information and plan together. The conference symbolises the inter-agency nature of assessment, treatment and the management of child protection. Throughout the child protection process, the work is conducted on an inter agency basis and the conference is the prime forum for sharing information and concerns, analysing risk and recommending responsibility for actions. It draws together the staff from all the agencies with specific responsibilities in the child protection process (health, social services, police, schools and probation), and other staff who can offer relevant specialist advice, for example psychiatrists, psychologists, lawyers, and provides them with the forum for conducting and agreeing their joint approach to work with the child and the family."
"6.8 The only decision for an initial child protection conference is whether or not to register the child. ……….. There should be a locally agreed procedure for confirming that these recommendations will be acted upon………….."
"6.14 It is important that ACPC's (Area Child Protection Committees) should formally agree the principle of including parents and children in all conferences. Guidance on their inclusion must be contained in the local child protection procedures."
"6.18 Involvement of Others
"It may be that the parent or relative will feel more confident to attend if they are encouraged to bring a friend or supporter. If they are accompanied by a friend or professional such as a lawyer, it will be incumbent on the Chair to clarify the role of the additional person. The conference is not a tribunal to decide whether abuse has taken place and legal representation is therefore not appropriate."
"6.19 Minutes
"Following the child protection conference, those present should receive the minutes of that conference. Others who were not present for the whole or part of the conference such as parents and other relevant family members and professionals should receive as a minimum written confirmation of the main findings of the conference, a note of who attended and who was absent and confirmation of the decisions and recommended plan of action………….. It is important that this summary paper should be prepared and distributed speedily although the production of the full conference minutes may take longer. The summary of the meeting should be discussed with the parents and children as appropriate in order to ensure they are clear about the expectations professionals have of them and the expectations they have of the professionals."
"6.24 Those who attend conferences should be there because they have a contribution to make. Meetings that are unnecessarily large inhibit discussion and do not use valuable resources to the best advantage. Large numbers of professionals, some of whom make no...
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