X County Council v DW & Ors

The family court and the Special Educational Needs and Disability Tribunal perform separate statutory functions when deciding issues concerning a child’s education. The family court applies the child-welfare principle under the Children Act 1989; the Tribunal applies the statutory scheme governing statements of special educational needs and appeals. Neither body may dictate to the other. A local authority with parental responsibility may determine where a child in care attends school, subject to the statutory framework. A Tribunal decision must nevertheless be taken into account, and failure to do so may expose the decision to statutory appeal or judicial review. A difference of view alone does not establish unlawfulness. In practical terms, a Tribunal’s decision does not compel the family court to adopt the specified educational arrangements where suitable alternative arrangements can be made.

The local authority was pursuing care proceedings concerning a ten-year-old child with autistic spectrum disorder and associated behavioural difficulties. It had made an interim care order and, in its capacities as local authority and local education authority, had prepared a care plan and statement of special educational needs identifying the same special school.

The parents could appeal against the statement to the Special Educational Needs and Disability Tribunal under section 326 of the Education Act 1996. The issue was the legal relationship between the family court’s jurisdiction under Part IV of the Children Act 1989 and the Tribunal’s statutory jurisdiction, particularly if their conclusions about the child’s education differed.

1. Functions and applicable tests. The family court and the Special Educational Needs and Disability Tribunal exercise different jurisdictions. The family court must treat the child’s welfare as paramount under section 1(1)(a) of the Children Act 1989. The Tribunal applies sections 324 and 326 of the Education Act 1996. Similar ultimate concerns about the child’s education do not make the tests identical.
2. Parental responsibility and school placement. Deciding where a child should attend school is an aspect of parental responsibility. Where a care order is in force, parental responsibility is shared with the local authority. Subject to sections 33(4) and 33(6), section 33(3)(b) gives the local authority power to determine the extent to which a parent may exercise parental responsibility. Accordingly, the local authority ordinarily determines the school placement of a child in its care.
3. A parent’s choice is limited to schools willing to accept the child. Neither a parent, a local authority acting as corporate parent, nor the family court can compel an unwilling school or education authority to provide education unless legislation creates that power. A dispute about the proper exercise of an education authority’s statutory functions is a public-law matter.
4. The family court cannot dictate the outcome of an appeal to the Tribunal, and the Tribunal cannot dictate how the family court exercises its powers under the Children Act 1989. The Tribunal must take into account relevant orders and judgments of the family court. Ignoring them may expose its decision to statutory appeal on a point of law or judicial review for illegality, procedural irregularity or irrationality.
5. A difference between the family court’s conclusion and the Tribunal’s conclusion is not, by itself, unlawful. In light of section 324(5) of the Education Act 1996, the practical impasse is limited: parents are not compelled to accept the educational provision in a statement if suitable alternative arrangements are made, and the family court is in no worse position than a parent. The family court should hesitate before departing from a carefully considered Tribunal decision, but is not bound by it.