O, R (on the application of) v London Borough of Hammersmith and Fulham

Under Part III of the Children Act 1989, a local authority’s evaluative choice of accommodation for a child in need is reviewed by conventional public-law standards. The court must not substitute its own assessment of the child’s best interests. A mandatory order is appropriate only where a single outcome is legally open; it is unavailable where more than one placement can lawfully meet the child’s needs. Choosing one lawful package rather than another does not, without more, interfere with Article 8 rights. Section 1(1)’s paramount-welfare rule does not convert judicial review into a welfare jurisdiction. A later decision may exceptionally be considered within an appeal for pragmatic reasons where no prejudice arises, but proper amendment and pleadings remain the normal course.

O, aged 13, had severe autism and attention deficit hyperactivity disorder. The local authority accepted that it owed him a duty under section 20 of the Children Act 1989 to provide accommodation. His parents sought a 52-week integrated care and education placement at Purbeck View School. The local authority proposed local education at Queensmill School with residential care, later revised to a full-year placement at a Croydon home.

Blair J set aside the local authority’s March decision as irrational but refused a mandatory order requiring placement at Purbeck View: [2011] EWHC 679 Admin. O appealed, and the local authority sought permission to appeal the irrationality finding. During the appeals the local authority made the May decision. The central questions were whether Purbeck View was the only lawful placement, whether Article 8 or section 1(1) altered the judicial-review approach, and whether the May decision could be considered in the appeal.

Black LJ, with whom Lloyd and Rix LJJ agreed, dismissed O’s appeal, refused permission for the local authority’s appeal, and dismissed O’s challenge to the May decision.

1. The Court of Appeal could consider the May decision. It had no original judicial-review jurisdiction, but its judges could act as High Court judges under section 9 of the Senior Courts Act 1981. It could also admit fresh evidence relating to the later decision. The course was permitted for pragmatic reasons, including urgency and cost, and because the local authority suffered no prejudice. Proper applications to amend and orderly pleadings remained necessary, and this flexibility should not be treated as generally available in appellate proceedings.
2. The local authority remained the primary decision-maker on the evaluative question of how O’s needs should be met. The court’s function was to review legality by conventional public-law standards, not to substitute its own assessment of O’s best interests. The evidence established a powerful case for Purbeck View, but the local authority’s package also had rational advantages, including local family links and the possibility of a future return home. Neither proposal was misguided, impractical or inappropriate. Purbeck View was therefore not the only lawful placement.
3. Article 8 was not infringed merely because the local authority selected one lawful way of meeting O’s needs rather than another. Section 1(1) of the Children Act 1989 did not apply because these were judicial-review proceedings concerning the local authority’s activities, rather than proceedings in which the court determined a question about O’s upbringing. O’s interests remained relevant to the legality review, but the court was not exercising a welfare jurisdiction.
4. A mandatory order could issue only where the court concluded that only one result was legally open, applying the principle recognised in R v Ealing LBC ex parte Parkinson (1995) 29 HLR 179. The revised local-authority plan supplied a lawful alternative, so mandatory relief was unavailable.
5. The cross-appeal issues concerning the weight given to the First-tier Tribunal’s decision and the intensity of judicial review were academic or insufficiently argued. The question whether judicial review involves a sliding scale of scrutiny was left for another case.

• Court of Appeal (Civil Division) — O’s appeal was dismissed. Permission was refused for the local authority’s appeal. O’s challenge to the May decision was also dismissed, so that decision stood.
• High Court, Queen’s Bench Division, Administrative Court — Blair J set aside the March placement decision as irrational but refused mandatory relief requiring placement at Purbeck View: [2011] EWHC 679 Admin.