R v London Borough of Barnet ex parte B
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 1993 |
| Neutral Citation | [1993] EWHC J1115-4 |
| Judgment citation (vLex) | [1993] EWHC J1115-6 |
| Docket Number | CO 1594/93 CO 2770/93 CO 2771/93 CO 2772/93 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 November 1993 |
[1993] EWHC J1115-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr. Justice Auld
CO 1594/93
CO 1595/93
CO 2770/93
CO 2771/93
CO 2772/93
MISS HOYALL and MISS BLOOM (instructed by Simon Levins & Co, London, N3) appeared on behalf of the Applicants
MR MCCARTHY (instructed by the London Borough of Barnet) appeared on behalf of the Respondents
Monday, 15 November 1993
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 14th September 1993 to close on 8th 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 Sections 17 and 18 of the Children Act 1989. The Applicants also seek an order of Mandamus directing the Council to review, and to publish the result of such review, of its provision for day care for children under eight in its area for the period 14th October 1991 to 14th October 1992, pursuant to Section 19 of the Act.
Part III of the 1989 Act, the relevant provisions of which came into force on 14th October 1991, introduced a new and comprehensive statutory code for local authority support for children and families. In particular, it provided in Sections 17, 18 and 19, for, inter alia, the provision of services for children in need and other young children and their families, and in Sections 20 to 24 for looking after children by, inter alia, providing them with accommodation. As to children in need, Section 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 disabled."
Section 17(1) imposes a new "general duty" on every local authority towards children in need within its area, namely:
"(a) to safeguard and promote the welfare of children … who are in need:
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
Although that duty is a general one, Section 17(2) provides that
"[f]or the purpose principally of facilitating" it, a local authority has the specific duties and powers set out in Part 1 of Schedule 2, which concern the provision of services for families. Those duties and powers are qualified in the main by such words or terms as "reasonable" and/or "as they consider appropriate".
As to day care, Section 18(1) imposes a duty on every local authority to provide "such day care … as is appropriate" for children in need of five or under and not yet attending school. Section 18(2) empowers, but does not oblige, every local authority to provide day care for such young children even though they are not in need. The Government has issued guidance on the working of the this and other provisions of the 1989 Act. By Section 7 of the Local Authority Social Services Act 1970, every local authority, in the exercise of its functions under the 1989 Act, including the exercise of any discretion, must "act". under that guidance. The relevant guidance is in a series of HMSO publications, in particular one entitled "The Children Act 1989, Guidance and Regulations —Volume 2, Family Support, Day Care and Educational Provision for Young Children". I shall return to the detail of this guidance so far as it is relevant.
Section 19 requires every local authority regularly, and together with the local education authority, to review, inter alia, the day care provision which it makes under Section 18 and the availability of child minders within its area for children under eight. The first review was to be made within the period of one year from the commencement of the Section, namely from 14th October 1991, and subsequent reviews were to be made over three year periods beginning at the end of that one year period. (See Section 19(1),(2) and (5))
Section 19(6) requires a local authority to publish the result of such review -
"(a) as soon as is reasonably practicable;
(b) in such form as they consider appropriate; and
(c) together with any proposals they may have with respect to the matters reviewed."
There are four main aspects of these provisions which should be noted, having regard to the issues raised by these applications.
The first is that the duties of a local authority under the above provisions are general and particular. They are duties owed generally to children in need and their families in the area for which a local authority is responsible. They are particular in the sense that Section 17(2), Schedule 2, Part 1, and Section 26, to which I shall return, provide a machinery by which each child in need can enforce the general duty in its application to him or her. As to the general duties of a local authority under Sections 17, 18 and 19, none of those provisions requires it to consult individually with parents of children in need within its area when it considers and decides upon its range and level of provision of day care and other services. Sections 17 and 18 do not mention consultation, presumably because Section 19, in its provision for regular review by a local authority of such services, is the intended medium for such consultation as is appropriate for that purpose. Section 19(7) gives a local authority a wide discretion as to whom it should consult in the conduct of the statutory review, and does not expressly require it to consult parents of children in need, either generally or individually. It provides that,in conducting such a review, a local authority -
"… shall have regard to-
(a) any representations made … by any relevant health authority or health board; and
(b) any other representations which they consider to be relevant."
Volume 2 of the Guidance, in accordance with which the Council must act, in Chapters 2 and 3, under the respective headings "Service Provision" and "Range of Services", sets out some requirements of a general, and predictable, nature as to the way in which local authorities should make appropriate provision for day care and says something about consultation. As to the former, it is directed to the way in which a local authority should determine its range and level of services overall, and does not suggest that, in such determination, it should be governed by individual circumstances. The following extract from paragraph 2.11 makes that point in relation to a local authority's duties under Sections 17 and 18:
"Local authorities are not expected to meet every individual need, but they are asked to identify the extent of need and then make decisions on the priorities for service provision in their area in the context of that information and their statutory duties."
Passages in Chapter 9 of the same Volume, headed "The Review Duty", in relation to a local authority's duty of review under Section 19, similarly do not suggest that children in need or their parents should be consulted individually for the purpose of such review. See paragraphs 9.1, 9.7, 9.8, 9.15, 9.17 and 9.18. Paragraph 9.15, in particular, gives a good indication of the level of consultation envisaged:
"The two authorities should work out their consultation procedures in the light of local circumstances. They should give organisations and individuals a reasonable amount of time to respond, but it is suggested that this should never exceed three months. Attention should be paid to ways of seeking views from a cross-section of the population. It is suggested that, where there are local umbrella groups or an Under Fives Forum, they should be invited to nominate someone to respond on their behalf. This also applies to organisations representing different ethnic minority groups in the area."
Such guidance for the general provision of services under Sections 17, 18 and 19 is to be distinguished from that elsewhere in Volume 2 and in other Volumes of Guidance, as to the way in which a local authority should provide for each child individually. In the latter context the Guidance emphasises the need for full consultation with the child and/or his parents and to have regard to the needs and interests of the child and his family. See, for example, the following paragraphs:
"3.5 In considering whether or not to offer day care services for children in need, local authorities should ensure that full consideration is given to the views of parents and children. The Act gives local authorities a duty to do this in respect of the children they look after [see Sections 20(6) and 22(4)] and this should, as a matter of good practice, also be applied in respect of children in need who are being cared for by their parents.
3.6 There should be a variety of day care facilities in the area so that there is some choice for children in need and they can attend the one which best meets their needs. Where a local authority decides to offer day care for a child in need, the parents should be involved in the discussion about the type of day care service and their views should be respected. Wherever possible local authorities should arrange for a child in need to go...
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