2011 03 Children

Friday 1 April 2011

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Case Law

R (RO) v East Riding of Yorkshire [2011] EWCA Civ 196 (Rix, Smith and Richards LLJ): Allowing the appeal brought by an extremely vulnerable 15-year-old boy with severe autism co-morbid with severe ADHD, the Court of Appeal's judgment establishes the primacy of the LAC regime under Children Act 1989 over the Education Act 1996 Part IV. Thus a statement of special educational needs cannot supplant and supercede duties owed to a child who is already accommodated under s20, Children Act 1989 and is a looked after child under ss22 and 23, Children Act 1989. The judgment affirms that it is unlawful to side-step duties under s20 not only in the Housing Act / Children Act situation (G v Southwark type case) but also in an Education Act / Children Act situation. It also deals with the point raised by Lady Hale in G v Southwark (obiter) as to when termination of s20 can be done - an assessment is necessary before one can terminate s20. The judgment important is the first at the Appellate level to deal with the nature and scope of the duty under s22(3A), Children Act 1989 to promote the educational achievement of looked after children.

Shu Shin Luh of Garden Court Chambers (led by Nicholas Bowen Q.C.) represented the Appellant child. Click here for the judgment.

See about the case in the Practice Notes section of the website under 'Children' and 'Education'.

R (Eunice Johns and Owen Johns) v Derby City Council and Equality and Human Rights Commission (Intervener) [2011] EWHC 375 (Munby LJ, Beatson J): Dismissing an application for permisssion to bring judicial review proceedings against the refusal to approve the Claimants as local authority foster carers, the Court held that he local authority is entitled to be concerned for the welfare of children in circumstances where two prospective foster carer applicants expressed clear views on homosexuality and same-sex relationships. The Statutory Guidance on Promoting the Health and Well-Being of Looked-After Children issued under s10 of the Children Act 2004 provides that support in relation to the sexual health of looked-after children should be provided regardless of the children's sexual orientation and should not be affected by individual practitioner's personal views. If children, whether they were known to be homosexuals, were placed with carers who object to homosexuality or same-sex relationships, that might give rise to a conflict within the local authority's duty to safeguard and promote the welfare of the child. Although this raises the potential for conflict between equality provisions pertaining to religious beliefs and sexual orientation, when the statutory guidance on safeguarding children is considered in this context, the Court held that protection of sexual orientation should take precedence in this limited way. (Link to judgment forthcoming.)

R (O) v Hammersmith and Fulham LBC [2011] EWHC 369 (Admin) (Ouseley J): An important case for practitioners in respect of guidelines on the appropriateness of interim relief as a remedy for seeking a specific school placement for a disabled child. The Claimant issued judicial review proceedings challenging the decision of a local authority to place him in a specific school which he contended was not suitable to meet his care and education needs. It would appear that there were also strands of arguments relating to the duties that the local authority may owe under the Children Act 1989 in addition to the Education Act 1996 (the RO v East Riding type point - see above). The Claimant sought interim relief to require the Local Authority to place him in the school preferred by his parents. Interim relief was not granted on the papers and an oral hearing was ordered in by Simon J. Although ultimately, at the hearing, the parties reached a compromise position, Ouseley J gave guidance on the appropriateness of interim relief as a remedy in circumstances where the remedy was effective substantive relief. Cases such as these require an urgent substnative hearing rather than interim relief by way of a specific placement. There should be an urgent directions hearing at which the parties, represented by counsel, can explain to the Court the immediate needs of the child and the family so the Court can make a judgment as to how best to proceed, either by way of ordering in an interim relief hearing or ordering in an urgent 'rolled-up' hearing to deal with the substantive issues at the heart of the JR challenge. It will also allow the Court to judge for itself having heard from the parties what immediate interim measures should be put in place pending any further oral hearing.

Note: Although the normal course following such a hearing is costs in the case, in view of the observations of Ouseley J that interim relief is not an appropriate way to seek a specific school placement, no order as to costs were made.

(Link to judgment forthcoming if publicly available.)

Other matters:

The Committee on the Rights of the Child issued General Comment No 13 on 17th February 2011 addressing the issue of Article 19 (Right of the Child to freedom from all forms of violence). Click here to see the comment. The Committee provides a very wide definition of violence - see Section IV of the General Comment. In particular, it stresses that violence is not just physical violence against the child, but includes psychological / mental violence against the child; between children (bullying, harassment); self-harming (emotional and physical), that is the child's own infliction of harm on him / herself; child abuse, etc. The General Comment reminds states to ensure that judicial systems and legislative mechanisms are in place to protect the child against all kinds of violence.

Following the Supreme Court's judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 (see Migrants Update February 2011), it is clear that the UNCRC and the rights it affords children is directly applicable in domestic law. The General Comment is worth a read and can be useful in framing the way practitioners ought to think about what constitutes violence against the child in ways that are beyond the conventional and well-established categories, such child abuse and corporal punishment. That violence includes violence inflicted by the child on himself / herself and bullying by one child against another is particularly important to note.

The UNCRC Complaints Mechanism met the approval of the member-states on 17th February 2011. This marks an important step toward ensuring that children have the same rights to complain about state violation directly to the Committee of the Rights of the Child as adults do currently via CEDAW and CERT. However, the process and the outcome has been subject to criticisms as well. Read more on the Child RIghts Information Network for a summary f the final drafting meeting.

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