E, R (on the application of) v London Borough of Islington

Article 2 of the First Protocol requires a pragmatic, fact-specific assessment of whether a child has been denied effective access to the educational facilities ordinarily provided by the state. The court must aggregate relevant acts and omissions by all public authorities before allocating responsibility between them. Domestic-law unlawfulness is a separate question.

Repeated term-time failures to provide mainstream education may deny the essence of the right, particularly where the child has significant individual vulnerabilities and no alternative provision is offered. A local authority transferring a homeless child out of borough retains continuing responsibilities to safeguard educational welfare, including effective liaison with the receiving authority.

E, a nine-year-old child, challenged decisions of Islington concerning her education and the family’s care needs. Following domestic violence, homelessness and several temporary accommodation moves, E missed three substantial periods of schooling between June 2015 and June 2016.

Ground 1 concerned Article 2 of the First Protocol and responsibility for the educational disruption, including the effect of an out-of-borough placement. Ground 2 challenged assessments under the Care Act 2014 and the Children Act 1989, including whether E was a child in need and a young carer.

Ground 1 succeeded. The court applied the approach in A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363 and A v Essex County Council [2010] UKSC 33. The first question was whether the cumulative acts and omissions of the relevant authorities denied E effective access to the ordinary educational facilities provided by the state. Only after answering that question was the court to examine domestic law to allocate primary responsibility.

School holidays carried substantially less weight than term-time absences, although they formed part of the background. E missed about 20 term-time weeks, approximately half of the available schooling. Her age, repeated school moves, her mother’s deafness and illiteracy, the absence of home-based educational support, and the absence of any alternative provision made the disruption particularly serious. The court rejected Islington’s generalised resources argument.

Islington remained primarily responsible during the out-of-borough placement. Under section 11(2)(b) of the Children Act 2004, delegation of functions did not divest the sending authority of its continuing obligation to safeguard the child’s welfare. It was required to liaise with the receiving authority, ensure suitable educational arrangements, maintain contact and keep contemporaneous records. The notice under section 208 of the Housing Act 1996 was insufficient.

The breach was unlawful under section 6 of the Human Rights Act 1998. Damages were necessary for just satisfaction and were reserved for assessment after a two-month stay to allow settlement discussions. E’s Article 14 argument was left undecided.

Ground 2 partially succeeded. The care-needs and young-carer assessments concerning E were quashed. The assessments concerning C, F and J were upheld. Islington was ordered to conduct a fresh young-carer assessment for E. E was awarded her costs in full.