High Court refuses permission for judicial review challenge over children in care being placed outside of their local area

The High Court has refused at an oral hearing to grant the Good Law Project permission for a legal challenge over the numbers of children in care being placed outside of their local area.

The public interest litigation campaign group had renewed its application after Mr Justice Mostyn in November 2021 refused on the papers to grant it permission in November 2021. The judge also ordered the claimant to pay the Secretary of State and the defendant councils’ costs of £66,500.

In its original application for permission the Good Law Project had 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).

The Good Law Project 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 where 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”.

However, this renewed application was rejected at an oral hearing this week (29 March).

Responding to the decision, Jo Maugham, director of Good Law Project, said: “Looked-after children are amongst the most vulnerable in the country. And we know that the choice by certain local authorities to save money by dumping them in accommodation far from everything they know places them at increased risk of criminal or sexual exploitation.

“We have yet to decide whether to appeal. But, come what may, we intend to continue to fight for the many children whose parents cannot look after them and who, tragedy on tragedy, are also being let down by the local authorities who are supposed to help them.”