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Good Law Project in renewed bid for judicial review challenge over placements of children in care outside of local area

The Good Law Project has renewed its application for permission to bring a judicial review challenge over the numbers of children in care being placed outside of their local area.

In its original application for permission the public interest litigation campaign group advanced two grounds of challenge, namely that:

  1. Five defendant local authorities – Cambridgeshire, Derbyshire, Essex, Surrey and West Sussex County Councils – were in ongoing breach of the obligation imposed by section 22G of the Children Act 1989 (General duty of local authority to secure sufficient accommodation for looked after children; “the sufficiency duty”).
  2. The Secretary of State for Education had taken an unlawful approach to the exercise of his powers under section 84 of the Children Act 1989 (local authority failure to comply with statutory duty: default power of the Secretary of State) and/or section 497A of the Education Act 1996 (power to secure proper performance of local authority’s education functions).

Mr Justice Mostyn concluded that neither of the grounds advanced by the Good Law Project was arguable and therefore he refused the application for permission.

Amongst other things, he said he had been persuaded by the council defendants that it was not arguable that any of them had committed a justiciable breach of the section 22G duty. “There is no question of the local authorities, in making the decisions about the placement of children out of area, of having acted in bad faith or to have been guilty of aberrant decision making.”

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Mr Justice Mostyn added: “In my judgment the authorities have demonstrated that they have conscientiously considered, and have strategies in place, to achieve feasible local placements.”

In dismissing the application, the judge however sought to emphasise that the decision he had reached was “not intended in any way to diminish the powerful evidence advanced by the claimant about the potentially damaging consequences for children placed in accommodation a long way from their home domain”.

He ordered the claimant to pay the Secretary of State and the defendant councils’ costs of £66,500.

The Good Law Project said: “The High Court judge chose to interpret the current law surrounding this in a way that we consider is far too narrow. That’s why we are now calling for it to be reconsidered.”

Specifically it has renewed its application on the following grounds:

  1. Mostyn J was wrong to find that the claimant’s interpretation of the duty imposed on local authorities by section 22G of the Children Act was “not arguable”. The Good Law Project said its interpretation of the sufficiency duty as imposing a duty to do everything that is reasonably practicable to secure the specified outcome had – “at the very least” – a real prospect of success at a substantive hearing;
  2. In this particular statutory context, the judge was wrong to rely on Wednesbury irrationality and wrong to hold that a judicial review claim based on an alleged failure to discharge the sufficiency duty only lies were there has been “seriously aberrant decision making when considering the feasibility of a return of the child to his or her home domain”. Even if irrationality were the correct standard of review, the Good Law Project said, it would not follow that the necessary intensity of review would be limited to considering whether the local authority defendants’ decision-making had been “aberrant”;
  3. Mostyn J was wrong to hold that – even applying the claimant’s interpretation of the nature and extent of the sufficiency duty – each of the local authority defendants had complied with that duty.
  4. The judge was wrong to find that section 84 of the Children Act 1989 and/or section 497A of the Education Act 1996 constituted an alternative remedy justifying the refusal of permission to apply for judicial review. “In circumstances where the essence of the claimant’s second ground of judicial review is that the Secretary of State has adopted an unlawful approach to the exercise of the very statutory powers that the judge considered to constitute an alternative remedy, it would be improper to deny the claimant a substantive hearing of its claim against the local authority defendants on the basis of the assumption that those statutory provisions constitute an effective alternative remedy.” [emphasis in original]
  5. Mostyn J was wrong to hold that the second ground of judicial review (concerning the claim against the Secretary of State) was not arguable. In reaching that conclusion the judge had failed to engage with the Good Law Project’s submissions “including the critical point that reliance on the overall results of Ofsted’s inspection reports concerning local authorities’ children’s services departments is simply insufficient to ensure that contraventions of the sufficiency duty are identified and (where appropriate) action under section 84 of the Children Act 1989 and/or section 497A of the Education Act 1996 is taking, including because those results do not indicate whether the sufficiency duty has been complied with”.

The renewal application can be viewed here.

The Good Law Project said: “Councils, particularly those in southern England and the Midlands, are increasingly housing children many miles from where they live and their support networks. In 2020, a shocking 70% of children in residential care were placed in housing outside their local authority. 

“Why? Poor planning and an abdication of responsibility by the local authorities. It’s as simple as that. Rather than build up local capacity, it appears they rely on private care homes that maximise profit by building housing in the north of England where property is cheaper.”

It added: “After we launched proceedings, many of the councils accepted that there were issues and started trying to address them. Surrey, for example, recently began the ‘Coming Home’ Project to “increase the sufficiency of provision in Surrey for children and young people who are looked after and/or have SEND [special educational needs and disabilities].” 

“We are pleased to see that attitudes are starting to change, but local authorities and the Government can and must do more to protect vulnerable children in their care. We think it’s right for the High Court to rule on it.”

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