A's Application For Judicial Review

Under section 47 of the Children Act 1989, a local authority investigating suspected significant harm may take consequential steps which it otherwise has power to take, including communicating its belief to relevant persons. The provision does not require the evidential standard applicable when a court makes a care order. The authority must nevertheless have material on which it can properly arrive at its view, and its conclusion is reviewable for Wednesbury unreasonableness. Social workers may consider allegations and suspicions which would not alone satisfy the evidential requirements for a court order. Judicial review tests the lawfulness and fairness of the decision made, rather than reassessing it by later evidence. Employment disciplinary proceedings are not automatically biased because the panel comprises senior representatives of the employer or receives legal advice from the employer’s legal department.

The applicant, a suspended head teacher, sought judicial review of two decisions by a local education authority. A school governors’ disciplinary panel recommended his dismissal (decision A). Social workers concluded that there was reasonable cause to believe that he posed a risk of significant harm to children (decision B), and later reached the same conclusion on reconsideration (decision C).

Maurice Kay J rejected the challenges. Permission to appeal had been refused on the documents by Hale LJ. On a renewed application, the Court of Appeal considered whether the authority had power under section 47 of the Children Act 1989 to communicate its belief, whether the evidential standard in [1996] AC 563 applied, and whether the disciplinary process was legally unfair or improperly constituted.

1. Decision B and decision C. Permission to appeal was granted only on the issue whether the authority had power under section 47(8) of the Children Act 1989 to communicate its conclusion to the education authority and school governors. Section 47(8), on its face, did not limit the authority’s consequential action to seeking a court order. The words in parentheses indicated that the authority could take any step which it otherwise had power to take.
2. The evidential standard required for a local authority’s investigation or consequential action was not the standard required before a court could make a care order. The authority needed material on which it could properly arrive at a view. The court’s review remained one of Wednesbury reasonableness.
3. The material before the meeting, including an unwithdrawn allegation, surrounding evidence concerning pupils taken on the applicant’s barge, and apparent breaches of written instructions, provided an adequate factual basis for the belief that the applicant posed a risk. The challenge to the substance of that belief therefore disclosed no real prospect of success.
4. Decision A. The alleged communication from social services could not have tainted the disciplinary proceedings because it was neither before nor referred to by the disciplinary panel. Counsel’s references to possible sexual impropriety or grooming did not establish unfairness or an irrelevant consideration absent evidence that the panel relied on them.
5. Judicial review assessed the lawfulness and fairness of the decision made in November 1999. Later evidence concerning the disciplinary complaint could not invalidate that decision; the appropriate route was the disciplinary appeal procedure.
6. A disciplinary panel composed of school governors was not inherently biased. The panel could obtain legal advice from the employer’s legal department. Permission to appeal against decision A was refused. Permission concerning decision B was granted only on the section 47 power point, with expedition ordered. The application was allowed in part and costs were costs in the appeal.

• Court of Appeal (Civil Division): On 18 January 2001, the renewed application was allowed in part. Permission to appeal against decision A was refused. Permission concerning decision B was granted only on the issue of the authority’s power under section 47(8) of the Children Act 1989; all other grounds were rejected.
• Queen’s Bench Division: Maurice Kay J dismissed the applicant’s judicial review challenges to decisions A and B. The citation of that decision is not stated in the judgment.
• Permission stage: Hale LJ refused permission on the documents before the renewed application.