ET, R (on the application of) v London Borough of Islington & Anor

In judicial review of child-safeguarding decisions, the intensity of Wednesbury review may be heightened where an error could expose children to sexual abuse. This does not replace the Wednesbury test. It requires the authority to exercise its discretion with a due appreciation of its responsibilities and to tread more carefully in light of the consequences.

A local authority must make its own assessment of risk under the Children Act 1989, informed by relevant agencies. It may rely on specialist police and probation evidence, but it cannot treat assessment of criminal risk as exclusively belonging to those agencies. An imperfect assessment will not necessarily be unlawful where its overall reasoning and conclusion remain rational and are supported by multiple accurate considerations.

Three children living with their grandmother in Islington sought judicial review of the London Borough of Islington’s assessment of the risk posed by MB, a convicted sex offender who was shortly to be released from prison. The children had stopped attending school because of their grandmother’s safety concerns and had received home tuition.

The council had undertaken assessments under the Children Act 1989, consulted the police, probation service and other agencies, and concluded that the risks could be managed through existing safeguards and a child in need plan. The claimants argued that the council had applied the wrong statutory test, failed to exercise its own judgment, overlooked important questions and relied on material factual errors. The central issue was whether the 26 October risk assessment was unlawful.

1. The claim was dismissed. The court applied a heightened intensity of review because the possible consequence of error was sexual abuse of children. This remained a Wednesbury review. Heightened scrutiny calibrated that test to the seriousness of the matter and required the authority to exercise its discretion with a due appreciation of its responsibilities.
2. The council had not applied the wrong test. The reference in the assessment to harm attributable to care or parenting described the usual work of social workers and did not displace the statutory inquiry under section 47. The council had consulted the CAIT, MAPPA, probation, housing and learning-disability services. The assessment therefore represented the council’s own considered judgment, informed by those agencies’ evidence.
3. The council was not required simply to adopt the police assessment of MB’s criminal risk. Its statutory task was to reach its own evaluation of the risk to these children and the measures required to address it. The fact that the assessment could have explained more fully why the police officer’s evaluation had changed did not make the conclusion irrational.
4. The reference to an injunction being a necessary addition to the child in need plan was infelicitous but, read in context, addressed the grandmother’s perception of risk and reflected a suggestion from the CAIT. It did not flaw the assessment.
5. Some factual conclusions were questionable, but the assessment rested on many other accurate and accepted considerations. Taken as a whole, the assessment of risk and the proposed means of addressing it were not Wednesbury unreasonable, even under heightened review.
6. The claim was dismissed. The defendant obtained the costs of the present proceedings, subject to enforcement only with the court’s permission; the previous costs order was not altered.

First-instance judicial review decision. The court refused permission to appeal, stating that the case was fact-sensitive and that the issue concerning the applicable test was for another day.