JG & Anor v Kent County Council & Ors

A local authority’s general duty to safeguard children in need does not ordinarily create an individually enforceable duty to meet every child’s assessed needs. The statutory duties to investigate suspected significant harm and to provide accommodation may nevertheless be enforceable where their conditions are met.

The Article 3 operational duty requires a real and immediate risk of ill-treatment reaching the minimum severity required by Article 3, together with knowledge or constructive knowledge and a failure to take reasonable protective measures. Violence and fear may amount to harm without reaching that high threshold.

For special educational needs purposes, a child has “moved” between local authority areas only where responsibility has genuinely shifted. A temporary absence, viewed in context, does not necessarily transfer responsibility.

The claimants, the parents of TG, sought judicial review of Kent County Council’s response to TG’s violent conduct towards family members and the consequent risks to his siblings. They alleged breaches of Article 3 of the ECHR and duties under the Children Act 1989.

TG, through the Official Solicitor, brought a related claim concerning his statement of special educational needs. After TG and his father temporarily left Kent for Sunderland, Kent transferred the statement to Sunderland on the basis that TG had moved there. The central issues were whether Kent had breached its social services duties and whether the transfer decision was lawful.

1. Social services duties. The local authority breached section 20 of the Children Act 1989. By the end of August 2015, TG’s parents were prevented from providing him with suitable full-time accommodation because his violence placed his siblings at risk and they could not adequately control it. The authority had failed properly to assess that question.
2. The authority also breached section 47. The threshold for investigation is deliberately low. The authority should have followed the statutory safeguarding guidance, brought the relevant agencies together and developed a structured plan addressing the risks. A child protection conference would not have been superfluous merely because the parents were not responsible for the abuse.
3. Section 17 imposed a general duty, rather than an individually enforceable duty to meet every assessed need. That issue was immaterial because the breaches of sections 20 and 47 were established.
4. The Article 3 claim failed. Although TG’s conduct was frightening and sometimes painful, it did not reach the minimum severity required for inhuman or degrading treatment. Nor was the risk of more serious violence shown to be real and immediate in the Article 3 sense. Declarations were appropriate for the statutory breaches, but not for Article 3.
5. Education claim. Regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 must be read with sections 321 and 323 of the Education Act 1996. The phrase “moves” concerns a change in responsibility between authorities. Ordinary residence is a useful indirect guide, but it is not the statutory test.
6. The question whether a child has moved is reviewable under conventional public law principles, rather than being a precedent fact for the court to determine independently. Kent’s decision was nevertheless unlawful. It treated a temporary departure, prompted by the authority’s earlier breaches and intended to last only until housing or residential schooling was secured, as a permanent move. The authority also misdirected itself by relying on irrelevant “Belonging” Regulations.
7. The decision transferring the statement to Sunderland was quashed. The court invited submissions on the precise terms of the order.

First-instance judicial review proceedings. The court granted declarations concerning breaches of the Children Act 1989, refused relief on the Article 3 claim, and quashed Kent County Council’s decision to transfer TG’s statement of special educational needs to Sunderland.