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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohammed, R (on the application of) v Local Safeguarding Children's Board For Islington & Anor  EWHC 3966 (Admin) (27 November 2014)
Cite as:  EWHC 3966 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (DEEQA MOHAMMED)
|- and -
|THE LOCAL SAFEGUARDING CHILDREN'S BOARD FOR ISLINGTON
LONDON BOROUGH OF ISLINGTON
Bryan McGuire QC (instructed by Islington Legal Services) for the Defendant
Christopher Baker (instructed by Islington Legal Services) for the Interested Party
Hearing dates: 12 November 2014
Crown Copyright ©
The Honourable Mr Justice Cobb:
Introduction & summary
i. An order pursuant to CPR rule 3.1 extending time for the issue of her application;
ii. An order directing that the matter is fit for expedition and such directions and orders as are necessary to ensure that the matter is heard as soon as possible.
"a declaration that known or suspected abuse or neglect of a child in Regulation 5(2)(a) of the Local Safeguarding Children Board's Regulations 2006 includes known or suspected abuse or neglect on the part of a public body".
This re-formulation of the claim had been presaged in the original grounds of the claim (per §2(ii) of the Claimant's Grounds) viz:
"Clarification of the law is necessary to ensure that failings including neglect of children on the part of public bodies give rise to a duty to instigate serious case reviews where the child dies or is seriously harmed and there is concern at the way the relevant agencies have worked to safeguard the child." (my emphasis)
In essence, the Claimant wished to contend that the London Borough of Islington – either through its children's services, its disabilities' services and/or housing department – had been responsible for actual or suspected 'neglect' of Nawaal. In the circumstances, it was to be argued, the LSCB was required to commission an SCR.
i. Permission to amend his claim to reflect the declaratory relief sought in  above;
ii. An order permitting an extension of time for filing her claim;
iii. Permission to apply for judicial review;
iv. The joinder of the Secretary of State for Education, as an Interested Party, and
v. An expedited hearing.
"Nawaal has no awareness of danger and enjoys climbing and jumping… if the window is open just a crack she will try and get out through it regardless of where it is … the longer Nawaal is inside the more frustrated she gets … she has no awareness of danger and enjoys climbing… This is a situation that is far too dangerous to continue this way. It is not a case of if Nawaal will fall but a case of when." (emphasis added)
"The issues identified were focused on housing, and abuse and neglect were not identified as factors in Nawaal's care or death. The consensus at both Rapid Response Meetings was that the requirements for a serious case review were not met." (emphasis added)
i. the actual decision not to hold a SCR had been made on 28 June, and re-considered and confirmed on 15 August 2013 (as it happens, the Claimant maintains that until this date she was unaware that any meeting had taken place on 15 August 2013);
ii. the CDOP (which had last met on 27 February 2014) had made no recommendation for an SCR;
iii. that any potential claim was therefore significantly out of time.
i. That there had been a failure on the part of the Defendant to comply with its duty to undertake an SCR into the death of the Claimant's daughter, and/or
ii. A failure to exercise its discretion to undertake such an SCR.
"a disagreement as to the ambit of the words 'suspicion of abuse or neglect' or the nature and extent of any power to initiate an SCR are the kinds of matters an LSCB would refer to the Panel for an independent view before reaching a final decision".
The 'panel' referred to in this passage is the NPIE (see  above).
i. The claim is significantly out of time without proper explanation; Mitting J. determined that the decision not to conduct the SCR had been taken in the summer of 2013 and communicated to the Claimant in the early autumn of 2013, some 8˝ months before the claim form was issued;
ii. That no good purpose would be served by an SCR given that there has already been a full coroner's inquest, and a Multi Agency Management Review;
iii. That further, and in any event, the Claimant's basic contention that "neglect" encompasses alleged shortcomings in the Islington London Borough Council's system for allocating social housing is not arguable.
"Within 14 days of being notified of the view of the Independent Panel of Experts … the Claimant shall notify the Court whether she wishes to proceed with the claim; if so the permission application to be listed as soon as possible thereafter".
"Following very careful consideration of the information provided at their meeting on 11 August, the Panel are strongly of the view that there is clear evidence of Islington LBC's failure to protect the safety and wellbeing of child Nawaal. However, on the specific issue of whether an SCR is required, they concluded that in the apparent absence of relevant case law, or an explicit policy direction from the Department for Education as to whether a body such as a local authority can be guilty of neglect within the remit of Regulation 5(2)(a) of the LSCB's Regulations (2006) as set out in Working Together 2013, it is not possible for the Panel to be definitive as to whether the criteria for an SCR are met. The Panel take the view that the particular issues raised by this case are more appropriately addressed either with a determination in the courts or by a clear policy directive from the Department for Education." (emphasis added).
"Further to my email … I have received the Defendant's instructions. Yesterday morning the Board met to consider the Panel's views. The Board has considered those views as sought by its referral to the Panel. With those views in mind, the Board will exercise its power to commission a Serious Case Review in this case, notwithstanding there is no duty to do so."
"The position generally remains unsatisfactory as in the light of the advice of the Expert Panel there is plainly a need for clarification about the circumstances in which an SCR should take place, we therefore consider that there is a real public interest in this case continuing and intend to seek a declaration as to the circumstances when a Serious Case Review should be instigated. … We write to enquire whether your client will be prepared to agree that the litigation should continue … We consider that the Secretary of State should be joined and it would be for him/her to respond substantively to the claim for a declaration. … This is obviously an unusual case. We invite you to consider our proposal carefully."
Serious Case Reviews: the arguments
"(1) The objective of a Local Safeguarding Children Board established under section 13 is—
(a) to co-ordinate what is done by each person or body represented on the Board by virtue of section 13(2), (4) or (5) for the purposes of safeguarding and promoting the welfare of children in the area of the authority by which it is established; and
(b) to ensure the effectiveness of what is done by each such person or body for those purposes.
(2) A Local Safeguarding Children Board established under section 13 is to have such functions in relation to its objective as the Secretary of State may by regulations prescribe (which may in particular include functions of review or investigation).
(3) The Secretary of State may by regulations make provision as to the procedures to be followed by a Local Safeguarding Children Board established under section 13."
"Regulation 5: Functions of LSCBs
(1) The functions of an LSCB in relation to its objective (as defined in section 14(1) of the Act) are as follows—
(a) developing policies and procedures for safeguarding and promoting the welfare of children in the area of the authority, including policies and procedures in relation to—
(i) the action to be taken where there are concerns about a child's safety or welfare, including thresholds for intervention;
(ii) training of persons who work with children or in services affecting the safety and welfare of children;
(iii) recruitment and supervision of persons who work with children;
(iv) investigation of allegations concerning persons who work with children;
(v) safety and welfare of children who are privately fostered;
(vi) co-operation with neighbouring children's services authorities and their Board partners;
(b) communicating to persons and bodies in the area of the authority the need to safeguard and promote the welfare of children, raising their awareness of how this can best be done, and encouraging them to do so;
(c) monitoring and evaluating the effectiveness of what is done by the authority and their Board partners individually and collectively to safeguard and promote the welfare of children, and advising them on ways to improve;
(d) participating in the planning of services for children in the area of the authority;
(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned.
(2) For the purposes of paragraph (1)(e) a serious case is one where—
(a) abuse or neglect of a child is known or suspected; and
(i) the child has died; or
(ii) the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.
(3) An LSCB may also engage in any other activity that facilitates, or is conducive to, the achievement of its objective." (emphasis by underlining added).
"12. Cases which meet one of these criteria (i.e. regulation 5(2)(a) and (b)(i) or 5 (2)(a) and (b)(ii) above) must always trigger an SCR. In addition, even if one of these criteria are not met an SCR should always be carried out when a child dies in custody, in police custody, on remand or following sentencing, in a Young Offender Institution, in a secure training centre or a secure children's home, or where the child was detained under the Mental Capacity Act 2005. Regulation 5(2)(b)(i) includes cases where a child died by suspected suicide.
13. Where a case is being considered under regulation 5(2)(b)(ii), unless it is clear that there are no concerns about inter-agency working, the LSCB must commission an SCR. The final decision on whether to conduct the SCR rests with the LSCB Chair. If an SCR is not required because the criteria in regulation 5(2) are not met, the LSCB may still decide to commission an SCR or they may choose to commission an alternative form of case review.
14. LSCBs should consider conducting reviews on cases which do not meet the SCR criteria. They will also want to review instances of good practice and consider how these can be shared and embedded. LSCBs are free to decide how best to conduct these reviews. The LSCB should oversee implementation of actions resulting from these reviews and reflect on progress in its annual report." (emphasis by bold in the original).
i. the views of the NPIE as expressed in their letter dated 18 August 2014 (see  above);
ii. the views of the Legal Aid Agency (LAA), expressed in their letter 11 November 2014 (see  below), following the meeting of the Special Controls Review Panel.
"1. We were satisfied that there were very many children who are engaged with public bodies of many descriptions whose lives are dependant on the behaviour of those employed by those public bodies and whose future lives will be affected by appropriate guidelines as to when SCRs should be held when any of those children dies or is seriously injured as a result of the possible fault of those employed by those public bodies. The Court should be given the opportunity to define the term 'neglect' in section (sic.) 5(2)(a) of the Regulations as per the request of the NPIE.
2. The potential benefit is that if the court can be persuaded to issue such guidance there is every chance that SCRs will take place which would not otherwise have been (sic.) and this, in our view, is likely to result a (sic.) better understanding, lessons learnt and the consequential saving of lives of children otherwise at risk.
3. It is impossible to quantify the number that might or will be affected. However we were unanimously of the view that this is very likely to result in the saving of children's lives, being children dependent on the actions of employees of public bodies. We would add that such children are often the most vulnerable in society, either because of their own mental health issues or because of the mental health issues of those that are supposed to be looking after them.
4. It will result in others not needing to institute proceedings as clear guidance will have been given as to when SCRs should be ordered.
5. The point of law is clearly identifiable."
i. The claim is now academic, and should therefore not be permitted to proceed;
ii. The proper approach would be for the Secretary of State to determine the issue of the remit of regulation 5(2) of the 2006 Regulations, this being essentially a matter of policy; the claim is therefore, at best, premature;
iii. It would be unprincipled for there to be an SCR and an Administrative Court action operating simultaneously, analysing broadly the same facts;
iv. The delay in bringing the claim had not been adequately explained or justified.
I hope that in abbreviating the arguments of counsel in this way, I have done none of them or their cases any disservice.
i. The claim as pleaded in its revised form does not enjoy a reasonable prospect of success; 'neglect' in regulation 5(2) does not, in my judgment, cover 'neglect' by a public body in failing to discharge its safeguarding duties to a child;
ii. The claim is academic, the Defendant having now agreed to conduct an SCR, which will include consideration of "institutional neglect"; there is insufficient justification in permitting the claim to proceed when there is now no lis between the parties;
iii. I am of the view that if consideration is to be given to a potentially wider remit of regulation 5(2)(a), this should be considered by the Secretary of State in the Department for Education in the first instance, not the court;
iv. The claim is premature; until the SCR has taken place, and/or the Secretary of State has considered the issue, there is no proper framework or decision, within which to consider this point of principle.
I develop these points in turn
"…there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child."
The term "the authority" is defined as "the children's services authority by which an LSCB is established" (Regulation 2(2)(a)).
32. The starting point for considering whether a court should permit a party to pursue an academic point in a public law case is the classic statements of Lord Slynn of Hadley in R v Secretary of State for the Home Department ex parte Salem  1 AC 450 in a speech with which other members of the Appellant Committee agreed when he explained (with my emphasis added) that:
"…I accept, as both counsel agree, that in a case where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se… The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future"
33. One of the reasons for this approach was expressed by Lord Goff in R v Secretary of State for the Home Department ex parte Wynne  1 WLR 115 at 120A-B where he said that:
"It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future".
34. These statements refer to the approach of the House of Lords but there is no reason why they should not apply with equal force to other courts. This approach to academic issues was considered further in the speeches by the members of the Appellate Committee in R (on the application of Rusbridger) v Attorney General  1 AC 357 in which:
(a) Lord Hutton explained that "it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them" (page 371 E )
(b) Lord Hutton expressly approved at page 371  the statement of Lord Justice-Clerk Thompson in Macnaughton v Macnaughton's Trustees  SC 387-392 that "our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs"; and
(c) Lord Scott of Foscote stated that "the valuable time of the courts should be spent on real issues" (page 374 E).
35. Similar principles have been applied in the Administrative Court, for example, by Munby J in Smeaton v Secretary of State  2 FLR 146, 244  ("the facts remain that the court-including the Administrative Court – exist to resolve real problems and not disputes of merely academic significance") and by Davis J in BBC v Sugar  1 WLR 2593, 2606  ("to grant remedies by reference to a decision made in now outmoded circumstances seems to me to be an arid and academic exercise. It is not something that, as an Administrative Court Judge, I would have been minded to do") Although these statements indicate that if an issue is academic, the court cannot determine it, these statements must be subject to what was said in Salem and which has, as far as I can discover, not been disapproved of or qualified in any manner in any later case."
"36. In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.
37. These points are particularly potent at the present time where the Administrative court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is "dealing with a case justly [which] includes, so far as is practicable ….(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases" (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two test which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Home Departments of Health  EWHC 86(Admin) )."
52. "In considering whether against this background I should proceed to decide the issue posed by the general declaration sought by the claimant it seems to me that the starting point must be the policy considerations which lie behind the general rule that the court does not entertain a claim which will not directly affect the rights and obligations of the parties inter se. As appears from the authorities referred to by Silber J in Zoolife and Silber J's own observations, there are a number of policy factors in play. First, as stated by Lord Goff in Wynne a conclusion on hypothetical questions and the accompanying reasons could constitute no more than obiter dicta expressed without the assistance of a concrete factual situation and would not constitute a binding precedent for the future. Although stated in the context of the House of Lords, in principle it seems to me that there is no reason why that consideration should be confined to the most senior appellate court. There are circumstances in which a declaration by the High Court as to the law or as to the legality or illegality of certain conduct may constitute a binding precedent for the future. It follows that the undesirability of reaching conclusions with accompanying reasons without the assistance of a concrete factual situation which would not constitute a binding precedent for the future is capable of applying to the High Court as well as appellate courts.
53. Allied to this is the obvious public interest in the avoidance of wasting valuable court time and the incurring by one or more parties of unnecessary costs normally inherent in the entertaining of academic disputes whose resolution will neither affect the rights and obligations of the parties inter se nor constitute a binding precedent for the future. In this context as Silber J pointed out these are particularly potent points at the present time in the Administrative Court having regard to the overriding objective in the CPR of dealing with a case justly including allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases.
54. It seems to me that in this context one particular matter to which the court must have regard is whether the effect of entertaining an academic claim in any particular case may be to encourage or fail adequately to deter the bringing of academic claims by other persons in the future. Even in a case where a claim only becomes academic shortly before it comes to court, by which time most if not all the legal costs may already have been incurred, this is a factor in my view to be weighed in the balance against the argument that the fact of costs having already been incurred in the instant case is a factor pointing in favour of the court proceeding to adjudicate on the claim. In such a case, particularly where there is evidence that there is a large number of other cases in the pipeline likely to raise the same point, there may be an overall net saving of legal costs and possibly even court time if the court proceeds to entertain the claim.
55. In my judgment the deterrence argument is likely to be of greater importance in a case where the claim was academic even before proceedings were issued."
i. I should exercise considerable caution before entertaining an academic claim. Indeed I would only do so if there were good reason in the public interest to do so (i.e. if I were to be satisfied that there is a large number of similar cases in the pipeline). I am not satisfied that the issue raised by Mr Wise's proposed declaration is of such wide interest or application that it positively demands consideration by the court at this point in time, or at this stage of these proceedings between these parties; the 2006 Regulations have been in force for well over 8 years, and in our collective experience (as discussed in argument), the need for such clarity has not arisen hitherto.
ii. There is no concrete factual basis for the determination; therefore if I were to embark on an exercise of detailed statutory construction, it is likely that any ruling would be regarded as obiter dicta;
iii. I must guard against authorising or endorsing the expenditure of valuable court time and cost in considering a claim, the outcome of which will be of no actual or practical benefit to these parties.
For these reasons alone I would reject Mr Wise's argument that the claim should be permitted to proceed.
i. The Claimant contends that it is the Secretary of State whose response to the claim is most directly relevant to the Claimant (indeed it was suggested by the Claimant's solicitor in a letter to the Defendant's solicitor on 29 August 2014 that it would be for the Secretary of State "to respond substantively to the claim for a declaration …there would be no need for your client to take any substantive role or incur any significant expense"),
ii. The Claimant seeks the immediate joinder of the Secretary of State to the proceedings as an Interested Party (this was first canvassed in August 2014, but no step appears to have been taken to pursue this, possibly as a result of funding difficulties).
"the purpose and processes of SCRs can be further developed to strengthen their impact on keeping children safe from harm."
Specifically, he referred to the "current remit" of SCRs as being "too narrow". Whether there should be a change in the 'remit' of SCRs is an issue which should be led by the policy maker not by the court. In this respect, I consider that the NPIE was right to advise that this issue should / could be referred to the Department for Education.
"I'm still concerned about cases where SCRs are not even being commissioned. About times when debates over semantics get in the way of finding out what went wrong. This may not happen that often, but it happens often enough for me and the panel to be concerned. So, following the panel's recommendation, we're planning further clarification of 'Working together to safeguard children', so it will now include guidance about what 'serious harm' actually means in the context of making decisions on whether or not to commission an SCR. And to help you with information sharing, we're planning to clarify in Working Together the need for local authorities to notify serious incidents." (emphasis added) (source: MoJ).
"The panel's view is that opportunities to learn from mistakes are being overlooked in the argument over where the SCR initiation line is drawn. It is essential that everyone sees lessons for children's protection (looking backwards and forwards) as the central issue, not the need to abide only by the letter of the law." 
"The panel would encourage more LSCBs to consider carrying out a proportionate SCR, even in cases where the statutory criteria are not met, rather than another type of less formal review, so lessons may be understood and shared more widely. Indeed, it is their view that use of a range of investigative tools and techniques to carry out a review in a way which is flexible and relevant to the individual case circumstances may be more appropriate than a more fixed methodology" .
i. If/when the Secretary of State has had the opportunity to consider whether the 2006 Regulations should be amended or re-interpreted (by way of Guidance or otherwise) to reflect a wider 'remit' for LSCBs to conduct SCRs;
ii. Once the SCR has been concluded in this case so that there is a clear factual framework within which to operate.