ET, BT & CT v Islington

A local authority assessing children under its general duties must examine the risk of significant harm to the children. It must not confine its task to harm attributable to parenting under Children Act 1989 section 31(2). It may rely on police and probation assessments of criminal risk, but must evaluate that evidence itself. Where a material contributor changes a risk assessment, the authority must acknowledge the change, probe its reasons and critically assess the later view against the historical facts. An assessment that fails to ask those questions is unlawful on ordinary Wednesbury principles. Judicial review can require a fresh assessment, but does not permit the court to prescribe its detailed content or decide the underlying risk.

Three children living with their maternal grandmother challenged Islington’s October 2012 risk assessment concerning the sexual-offending risk posed by their mother’s former partner. The challenge was brought in judicial review proceedings after earlier assessments and an undertaking to reassess the risk following his release from prison.

Cranston J rejected the argument that the authority had applied the wrong statutory test and declined to invalidate the assessment. The central issue on appeal was whether the authority had lawfully evaluated a significant change in the police officer’s assessment of risk and adequately addressed the risk to these particular children.

Black LJ delivered the judgment, with Longmore LJ and Thorpe LJ agreeing. The appeal was allowed.

1. Statutory task. The duties under sections 17 and 47 of the Children Act 1989 required an assessment of the children’s welfare and any risk of significant harm. Section 31(2), concerning care and supervision orders and harm attributable to inadequate parental care, supplied a different statutory context. The wording of the assessment did not show that the authority had wrongly confined itself to a section 31 approach. It explained why the authority relied on police and probation evidence concerning criminal risk. The authority nevertheless had to evaluate that evidence as part of its own assessment.
2. Wednesbury review. The court applied ordinary Wednesbury principles. Consistently with R v Ealing LBC ex p C (2000) 3 CCLR 122, the authority had to ask the right questions and take reasonable steps to obtain and assess the relevant information.
3. Changed risk assessment. The police officer’s September statement described a very high and persistent risk, whereas his later view was that the children faced no greater risk than other children in Islington. The assessment failed to acknowledge and deal explicitly with that change. The authority should have rigorously probed the explanation given for it and critically evaluated the underlying historical facts. It was not entitled simply to accept that the earlier view had resulted from pressure from the children’s representatives. This failure rendered the assessment unlawful.
4. Other matters and remedy. The suggestion that the grandmother might seek an injunction was an optional proposal, not a necessary part of the child-protection plan. The court did not need to determine the alleged factual inaccuracies separately. A lawful assessment also needed to address the nature of the children’s past relationship with the person said to pose the risk, since that could affect their fear of him, attraction to him or vulnerability to exploitation.
5. Limits of review. The court expressed no view on the actual level of risk or the protective steps required. Judicial review could require a fresh lawful assessment, but could not dictate its detailed method or content. The October assessment was declared unlawful and a fresh assessment was required.

• Court of Appeal (Civil Division): Allowed the appeal and substituted a declaration that the October 2012 assessment was unlawful, requiring a fresh assessment.
• High Court, Queen’s Bench Division, Administrative Court: Cranston J considered the judicial review challenge to the October assessment, rejected the argument that the wrong statutory test had been applied, and declined to invalidate the assessment.