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Children in need: the limits of local authority accountability

Published online by Cambridge University Press:  02 January 2018

John Murphy
John Murphy*
Affiliation:
School of Law, University of Manchester
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Abstract

This paper considers the effectiveness of the range of mechanisms open to children in need in order to make local authorities accountable in respect of their duties towards such children under the Children Act 1989, Pt III and Sch 2. By effectiveness, what is meant is either that these mechanisms help to ensure that the relevant duties are fulfilled, or that they provide adequate redress when they are not fulfilled. In simple terms, without any effective accountability, the Children Act 1989 duties count for very little.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 1 , March 2003 , pp. 103 - 134
Copyright
Copyright © Society of Legal Scholars 2003

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References

1. For present purposes, these duties shall be taken to be those contained in the Children Act 1989, Pt III and Sch 2. There are other important public authority duties, such as those of the Care Standards Commission under the Care Standards Act 2000. But as this Act is principally concerned with the supervision, registration and inspection of care homes and children's homes, the duties it contains do not receive detailed consideration here. This paper is concerned with the accountability that exists with respect to the duties owed to children before they enter local authority care. At most, then, the 2000 Act is of only limited and tangential significance in this context, affecting only children in need of (s 20) accommodation. Also, as a term of convenience, since the duties in Pt 111 of the Children Act 1989 are to be read in conjunction with those in Sch 2, I shall refer hereafter simply to those in Pt 111 to mean both sets of duties, save where otherwise indicated.

2. While it may be contended that the ideal itself is unclear on the face of the Act, the discretionary terms in which the Pt III duties are couched obscuring the precise aspirations of the legislation, it is none the less the case that these were made plain in the Review of Child Care Law (London: DHSS, 1985) on which Pt III was based.

3. For a host of historical examples, see Beddingfield, D The Child in Need – Children, the State and the Law (Bristol: Jordan Publishing Ltd, 1998) pp 1423 Google Scholar, 201–12.

4. Bailey and Bowman have highlighted three convincing reasons why public authorities make particularly attractive defendants - they have the ‘advantage of always being there and of having access … to significant financial resources’, as well as the fact that under the current rules on joint and several liability ‘a plaintiff is entitled to recover in full from any defendant’: see S H Bailey and M J Bowman ‘Public Authority Negligence Revisited’[2000] CLJ 85.

5. Pt III was also intended to reflect the obligation in Art 18(2) of the UN Convention on the Rights of the Child to ‘render appropriate assistance to parents and legal guardians in the performance of their child rearing responsibilities’: see The United Kingdom's First Report to the UN Committee on the Rights of the Child (London: HMSO, 1994) p 2.

6. For a fairly short list of useful sources, see Bainham, A Children - The Modem Law (Bristol: Jordan Publishing Ltd, 1998) p 325 n 1Google Scholar.

7. See J Thoburn ‘The Children Act 1989: Balancing Child Welfare with the Concept of Partnership with Parents’ [1991] J Social Welfare and Fam Law 331; and M D A Freeman Children, Their Families and the Law (Basingstoke: Macmillan, 1992).

8. Because this paper is concerned with local authority accountability in a broad sense , discussion of the limited circumstances in which a challenge based on s 8 orders under the Children Act 1989 would be available is eschewed. It should none the less be noted that where such orders can be obtained (see n 13 below), they may well provide the simplest mechanism available. For an account of the utility of s 8 orders in this context, see Bainham, n 6 above, pp 358–60.

9. See eg Children Act 1989, s 19. This section stipulates how, in conjunction with whom and when the provision of day-care and child-minding services are to be reviewed.

10. Here, I use the phrase ‘administrative challenge’ as a term of convenience intended to describe channels of accountability that do riot involve the courts. The term does not, therefore, include judicial review, even though judicial review is central to the operation of administrative law.

11. It is, of course, true that administrative law and private law serve markedly different functions. Yet there is also an important connection between the two: they are both fundamentally dependent upon the individual rights/interests of the litigant. By contrast, administrative channels of accountability are more likely to succeed where a class of children (as opposed to an individual child) are likely to be affected by statutory default or maladministration on the part of a local authority.

12. X (Minors) v Bedfordshire Country Council [1995] 3 All ER 353. Lord Brownc-Willinkson said (at 364–365): ‘Although regulatory or welfare legislation affecting a particular area of activity does in fact provide for those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general … The cases where a private right of action has been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.’ For further analysis in this context, see Bailey and Bowman, n 4 above.

13. Andrew Bainham points up a further potential mechanism in s 8 orders under the Children Act 1989. Technically, he has a point. Yet s 8 orders are not discussed in this paper because both the available types - specific issue and prohibited steps orders - are confined to resolving matters that could be dealt with under the auspices of parental responsibility (Children Act 1989. s 8(1)): see eg n 96 below. As such, the scope for their invocation in the context of the general accountability of local authorities in respect of Pt III duties is significantly circumscribed.

14. These include Art 6, but this Article's import has diminished significantly as a result of both domestic and Strasbourg case law: see below.

15. For a thoroughgoing and critical account of the general position, see Markesinis, B S et al Tortious Liability of statutory Bodies: A Comparative aid Economic Analysis of Five English Cases (Oxford: Hart Publishing, 1999) ch 3Google Scholar.

16. [1995] 3 All ER 353.

17. Children Act 1989, s 17.

18. (2002) 34 EHRR 3.

19. [1999] 3 All ER 193.

20. [2000] 3 WLR 776.

21. (1998) 5 BHRC 293. See also R Bailey-Harris and M Harris’ The Immunity of Local Authorities in Child Protection Functions: Is the Door Now Ajar‘?’ (1998) 10 Child and Fam Law Q 227.

22. It is clear from Z v United Kingdom (2002) 34 EHRR 3 at para [100] that is inapt to talk of an immunity in strict terms, for the Court made plain that it was ‘satisfied that the law of negligence as developed in the domestic courts … includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity’.

23. It is premature to say whether these cases represent a wholesale change in the tide of judicial attitudes towards public authority liability. First, they are only concerned with the duty of care question and are silent on the second probable stumbling block, breach of duty (on which see below). Equally, although it is true that they pave the way for inroads into the apparently blanket nature of the Bedfordshire decision, it is also clear that some of their Lordships were clearly reluctant to question the correctness of the Bedfordshire decision: see eg Lord Hoffmann's (extra-judicial) view in ‘Human Rights and the House of Lords’ (1999) 62 MLR 159; and the speeches of Lords Browne-Wilkinson and Slynn in Barrett v Enfield London Borough Council [1999] 3 All ER 193.

24. See n 66 below.

25. [1995] 3 All ER 353.

26. The children alleged breaches of s 17 (the general duty to promote and safeguard the welfare of children in need within the local authority's designated area), s 20(1) (the duty to provide accommodation for children in need of it) and Sch 2, paras 1 (1), 4(1) (the twin duties to take reasonable steps LO identify children in need and take reasonable steps to prevent them suffering ill-treatment or neglect).

27. In fact, their Lordships decided five consolidated appeals. Only the appeals involving Bedfordshire County Council and Newham London Borough Council are important for present purposes.

28. The statutory duties in issue in the Newhum case - Child Care Act 1980, ss 1 and 18 - were repealed and replaced by provisions contained in the Children Act 1989.

29. X (Minors) v Bedfordshire County Council [1995] 3 All ER 353 at 378–379.

30. For the clearest judicial account of this dichotomy see Ann. v Merton London Borough Council [1978] AC 728 at 754, per Lord Wilberforce. For academic discussion, see P Craig ‘Negligence in the Exercise of a Statutory Power’ (1978) 94 LQR 418; and S H Bailey and M J Bowman ‘The Policy/Operational Dichotomy - A Cuckoo in the Nest’ [1986] CLJ 430.

31. Note also, however, that the absolute utility of this dichotomy was seriously questioned by Lords Slynn and Hutton in the Barrett case: Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 211 and 222 respectively.

32. X (Minors) v Bedfordshire Country Council [1995] 3 All ER 353 at 371.

33. His Lordship was rightly cautious not to equate proof of such unreasonableness in the exercise of a statutory discretion with proof of negligence. He said no more than that’ if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability‘: X(Minors) v Bedfordshire County Council [1995] 3 All ER 353 at 368.

34. X (Minors) v Bedfordshire County Council [1995] 3 All ER 353 at 371. Note, however, that this approach was later qualified by Lord Hutton in Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 122: ‘[i]t is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion.’

35. Note that virtually all the duties in Sch 2 to the Children Act 1989 are couched in terms of a duty to ‘take reasonable steps’ to do certain things.

36. X (Minors) v Bedfordshire Country, Council [1995] 3 All ER 353 at 381.

37. X (Minors) v Bedfordshire Country, Council [1995] 3 All ER 353 at 380.

38. Osman v United Kingdom (1998) 5 BHRC 293 at para 139.

39. Z v United Kingdom (2002) 34 EHRR 3. Now it seems that Art 6 of the European Convention on Human Rights will be engaged in two mutually exclusive situations. First, it may be invoked 10 secure procedural guarantees where a claimant can show an arguable civil light under domestic law. Secondly, it may be invoked as a fallback where the claimant is denied access to a court by either the operation of a rule of (eg an immunity) or in fact. In the second instance, Art 6 has a distinctive role. It does not operate to ensure procedural safeguards (as in the first instance), but rather to require the state to justify the restriction in terms of a legitimate aim and a relationship of proportionality between that aim and the means employed to secure it. See further C A Gearty ‘Osman Unravels’ (2002) 65 MLR 87.

40. For criticism, see Lord Hoffmann, n 23 above; C A Gearty ‘ Unravelling Osmun ’ (2001)64MLR 159; Markesinis et al, n 15 above, pp 101–103; PCraig and D Fairgrieve ‘Barrett , Negligence and Discretionary Powers’ [1999] PL 626; Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 198. per Lord Browne-Wilkinson. Cf L Hoyano ‘Policing Flawed Police Investigations: Unravelling the Balnket’ (1999) 62 MLR 912; and Wright, J Tort Law and Human Rights (Oxford: Hart Publishing. 2001) esp ch 4 (read in conjunction with ppxxiii-xxxiii).Google Scholar

41. By virtue of s 6 of the Human Rights Act 1998 it became unlawful for a public authority - which term specifically includes a court of law - to act in a way that is incompatible with a Convention right. The relevance of this provision was recognised by Lord Browne-Wilkinson in Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 200.

42. Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 199–200.

43. He said eg that ‘the problems in applying this reasoning [of the Strasbourg court] to the English law of negligence are many and various’: [1999] 3 All ER 193 at 199.

44. In the Bedfordshire case, his Lordship had emphasized, at [1995] 3 All ER 353 at 381, that a duty of care was inapt partly because statutory decision-making in respect of children in need is ‘not the sole preserve of the local authority's social services’, but instead a ‘system [which] is inter disciplinary, involving the participation of the police, educational bodies, doctors and others’.

45. Craig and Fairgrieve, n 40 above.

46. Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 208. In similar vein (at 227), Lord Hutton opined that: ‘a local authority employs trained staff to make decisions and to advise it in respect of the future of a child in its care , and if it can be shown that decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable care, I do not think that the local authority should be held to be free from liability’ (emphasis added).

47. Children Act 1989, s 22(3)(a). This provision applies to all children ‘looked after’ by a local authority (which, under s 22(1)(a), includes children in care) provides that‘… [i]t shall be the duty of a local authority looking after any child - to safeguard and promote his welfare …’

48. Children Act 1989, s 17.

49. Children Act 1989, Sch 2. para 4(1).

50. Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 224. See also per Lord Browne-Wilkinson (at 211) who was happy to characterise the negligence in Barrett as operational misfeasance , unlike the alleged negligence in the Bedfordshire case, which was seen as a non-justiciable policy decision: ‘[only] a decision to exercise a statutory discretion is likely to be barred’, and not ‘acts done pursuant to the lawful exercise of the discretion [which] can … be subject to a duty of care even if some element of discretion is involved.’

51. Children Act 1989, s 17(1).

52. R v Barnet London Borough Council, ex p G [2001] 2 FLR 877. As Lord Wilberforce explained in relation to this kind of issue in Anns v Merton London Borough Council [1978] AC 728 at 754: ‘It is for the local authority. a public and elected body. to decide upon the scale of resources which it can make available in order to carry out its functions … It is no accident that the Act is drafted in terms of functions and powers rather than in terms of a positive duty … public authorities have to strike a balance between the claims of efficiency and thrift’ (emphasis added). Equally, in Barrett , Lord Hutton was clear that it was only policy decisions' involving the balancing oT competing public interests or the allocation of limited, financial resources that would render such decisions non-justiciable: Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 226.

53. This provision begins ‘[e]very local authority shall take reasonable steps…’ But while this would make establishing negligence very difficult, it would not, per se. render a case non-justiciable: Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 222, per Lord Hutton.

54. See n 47 above.

55. [1990] 2 AC 605. This was possible in the Bedfordshire case only because of the wealth of information that the local authority had already received about the children.

56. A-G (ex rel Tilley) v London Borough of Wandworth [1981] 1 All ER 1162.

57. R v London Borough of Barnet, ex p B [1994] 1 FLR 592.

58. Barrett v Enfield London Borough Council [1999] 3 All ER 193 at 228–229. Note that this reasoning was followed by Lord Woolf in the later Court of Appeal case of Kent v Griffiths [2000] 2 WLR 1158, where it was held (at 1170) that the statutory power granted to the defendant ambulance service to answer an emergency call crystallised into a specific duty to respond to a particular 999 call which was owed to the claimant as a particular individual.

59. [2000] 3 WLR 776.

60. The other appeals involved Anderton v Clwyd Country Council, G (A Minor) v Bromley London Borough Council and Jarvis v Hampshire County Council. In each case, damages were claimed on the basis of past and future loss of earnings.

61. All the other cases concerned strike outs.

62. [1990] 2 AC 605.

63. Phelps v Hillingdon London Borough Council [2000] 3 WLR 776 at 793.

64. Phelps v Hillingdon London Borough Council [2000] 3 WLR 776 at 808.

65. It is true, of course, that it may be easier to show proximity in cases where a referral concerning a child at risk of significant harm has been made to a social services department such that the assessment requirements contained in Department of Health Working Together to Safeguard Children (London: The Stationery Office, 1999) paras 5.13–5.17 apply. But this requires there to have been a referral in the first place, and such a referral certainly cannot be presumed.

66. Chiefly, these were: (i) the multi-agency aspect of decisions made with respect to children for whom local authority care may be considered necessary: (ii) the risk of wasteful defensive practices among social workers that potential liability might pose: (iii) the absence of any analogous duty that had ever been imposed on public bodies; (iv) the inappropriateness of courts second-guessing local authority decisions; and (v) the availability of alternative channels of redress. Certain of these factors figured, mutatis mutandis, in relation to local authorities' duties in respect of highways in Stovin v Wise [1996] AC 923.

67. Whether the use that the courts have made of these factors stands up to rigorous economic and comparative analysis is highly questionable: see Markesinis et al, n 15 above (providing evidence of the relatively problem-free experiences of France and Germany, where the policy concerns alluded to by the English courts tend not to be borne out in reality). Much also depends on the relative emphasis placed on tort as a means of achieving corrective as opposed to distributive justice. For a useful introductory account to these competing functions, see P Cane The Anatomy of’ Tort Law (Oxford: Hart Publishing. 1997) esp pp 17–18.

68. See eg L and P v Reading Borough Council and Chief Constable of Thames Valley Police Force [2001] 2 FLR 50.

69. On the role of financial restrictions in determining a breach of duty by public authorities, see Markesinis et al, n 15 above.

70. If the remedy obtained is that of certiorari - quashing the original decision - it is conceivable that the local authority may reach the same substantive decision a second time. This is most likely to occur where the first decision was quashed only on the basis of procedural impropriety.

71. See eg R v Devon Country Council, exp L [1991] 2 FLR 541. But note, also, that this ability to make decisions includes policy formulation decisions. It thus provides a theoretical means of challenging those decisions that are non-justiciable under the law of negligence.

72. See R v Barnet London Borough Council, ex p B [1994] 1 FLR 592. But note also the limits to which under-resourcing may be relied upon in a matter of ‘gravity’, such as ‘when the State's failure is in relation to its duty to children and their families’: Re F; F v Lambeth Borough Council [2001] 1 FLR 217 at para [42], per Munby J.

73. See eg Padfield v Minister of Agriculture [1968] AC 997.

74. See Department of Health The Children Act 1989: Guidance and Regulations, Vol 2: Family Support, Day Care and Educational Provision for Young Children (London: HMSO, 1991) para 2.11.

75. On the other hand, it is also true that the relevance of the statute's objectives may occasionally work in the applicant's favour: the overarching policy objective of safeguarding a child's best interests cannot be ignored, for example.

76. See Supreme Court Act 1981, s 31(3)Google ScholarPubMed and (6): RSC Ord 53. rr 3 and 4.

77. Nigel Lowe and Gillian Douglas supply the example of child protection conference records which are made confidential under the Foster Placement (Children) Regulations 1991. SI 1991/910: see Lowe, N and Douglas, G Bromley's Family Law (London: Butterworths. 1998) p 605 Google Scholar. For more general discussion of the problems associated with establishing the merits, see Craig, P Administrative Law (Oxford: Oxford University Press, 1998) ch 13.Google Scholar

78. Mandamus is an order requiring a public body to take a particular decision in accordance with its statutory duty. By contrast, certiorari is an order quashing a decision that has already been taken.

79. For an explanatory parallel, see R v Felixstowe Justices, ex p Leigh [1987] QB 582: and the valuable discussion of that case in P Cane ‘Statutes, Standing and Representation’ [1990] PL 307.

80. M Sunkin ‘Judicial Review and Part III of the Children Act 1989’ [1992] J Child Law 109 at 110.

81. For a thoroughgoing account of this advantage of public law over private law in the parallel context of health care provision, see Longley, D Public Law and Health Service Accountability (Buckingham: Open University Press, 1993) ch 1Google Scholar.

82. Of course, it’ the misfeasance occurred in tandem with, and perhaps partly because of, a dubious prior policy decision, it is conceivable that the local authority would adjust its policy for the future. But since policy issues are generally non-justiciable in tort, the fact that the policy was flawed may not come to light, thus reducing the chances of a subsequent change in policy.

83. This assumption is revisited. explored and explained at the end of this section.

84. Sunk in. n 80 above, has suggested (at 110) a tri-partite taxonomy which adds ‘preventive duties’ 10 the two headings suggested here. But the single example that he cites of any such duty - the duty to prevent children suffering neglect or ill-treatment – only partially paints the picture. In fact, the duty to which he refers is one that requires these objectives to be achieved ‘through the provision 01 services under Part III of this Act’: Children Act 1989, Sch 2. para 4(1). As such, it is equally appropriate to classify this as a duty to provide support services. (The relief of suffering and ill-treatment are thus merely gauges on the extent 10 which these services are to be supplied.)

85. These include duties to identify not simply those children who are in need, but also the extent to which they are in need: Children Act 1989, Sch 2. paras 1(1) and 3.

86. The vast preponderance of Pt III of, and Sch 2 to, the Act contains duties of this kind.

87. Eg Children Act 1989, s 20(6)Google Scholar(a): ‘Before providing accommodation under this section. a local authority shall, so far as is reasonably practicable and consistent with the child's welfare … ascertain the child's wishes regarding the provision of accommodation.’

88. Eg Children Act 1989, Sch 2. para 1(1): ‘Every local authority shall take reasonable steps to identify the extent to which there are children in need in their area.’ See also the duty to identify and have regard to the different racial groups to which children in need belong: Sch 2, para 11.

89. See n 87 above.

90. This provision mirrors s 20(6)(a) in so far as it requires the local authority to discover certain wishes of children it is looking after before making a decision with respect to those children.

91. An example of this latter kind is to be found in Sch 2, para 3 of the Act: ‘[w]here it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act.* See also the power to assist adults to obtain alternative accommodation where those adults, residing there, present a threat to children on specific premises: Sch 2. para 5(1).

92. Where no assessment is made, it may none the less be possible to challenge a local authority if it acted unreasonably in failing to make an ‘optional’ assessment. Where it did elect to make an assessment, its decision may equally be subjected to review if the conclusion reached could be shown to be irrational or if the local authority acted unfairly in making that assessment. See Sunkin, n 80 above, at 111.

93. [1995] 1 FLR 669.

94. Under the Children Act 1989, s 100(2)Google Scholar(b), the use of the inherent jurisdiction to such ends is prohibited.

95. The Act prohibits their use’ to achieve a result prohibited by s 100(2)’: Children Act 1989, s 9(5).

96. Strictly. s 100(2)(b) of the Act only prohibits the court from exercising its inherent jurisdiction ‘so as to require a child to be accommodated by or on behalf of a local authority’. In order to be forced to accommodate the child, the local authority would have to find (a) that he was a child in need arid that he was in need of accommodation for one of three reasons specified in the Act. Since the order sought related only to the first of these issues – whether he was a child in need - it did not necessarily mean that the court was being asked to require the local authority to accommodate him. That would necessitate the further finding that he was in need of accommodation for one of the specified reasons. None the less, the outcome in the case is almost certainly correct, since what the court is entitled to resolve by way of a specific issue order is constrained by the statute to that which a parent would be able to do. Deeming a child to be a child in need for the purposes of Pt 111 of the Act is assuredly not within the range of recognised parental powers. Thus, the court would have been obliged to decline leave to apply for a specific issue order on this footing.

97. [1995] 1 FLR 669 at 673. per Wall J.

98. [1995] 1 FLR 669 at 673, per Wall J.

99. R v Harrow London Borough Council, exp D [1990] 3 All ER 12 at 17. Note that in subsequent cases this dictum was soon taken to be of general application: see eg R v Devon County Council, ex p L [1991] 2 FLR 541; R v Lewisham London Boroug Council, ex p P [1991] 3 All ER 529.

100. See eg R v Lancashire County Council, ex p M [1992] 1 FLR 109; R v Royal Borough of Kingston-upon-Thames, ex p T [1994] 1 FLR 798; Rv Northavon District Council, ex p Smith [1994] 3 All ER 313; Re T (Accommodation by Local Authority) [1995] 1 FLR 159; R v Birmingham City Council, exp A [1997] 2 FLR 841. For two notable exceptions, see R v London Borough of Barnet, ex p B [1994] 1 FLR 592 (concerning the provision of day care under s 18 of the Act): and R v Enfield London Borough Council, exp J [2002] 2 FLR 1 (concerning the provision of financial assistance under s 17 of the Act).

101. Eg s 18(1).

102. Eg Sch 2, paras 8(b) and 9(1).

103. Eg Sch 2, para 10.

104. Eg s 20(1).

105. For some discussion of the significance of the wording differences, see Sunkin, n 80 above, at 111.

106. See Department of Health, n 74 above, para 2.11.

107. This duty is contained in the Children Act 1989, s 18.

108. See Associated Provincial Picture Houses v Wednesbury Corpn [1948] 1 KB 223.

109. It might also be irrational to ignore a large volume of representations made under the s 26 procedure indicating a preference for the provision of service X over service Y (or combination of services A over combination of services B). In this context, note the view of one local authority studied by Catherine Williams and Helen Jordan that the s 26 procedure exists in part so ‘that users should be enabled to comment on the service received, that their preferences and choices should be fully acknowledged and [that] the service … [be] adapt[ed] as a consequence’: C Williams and H Jordan The Children Act 1989 Complaints Procedure: A Study of Six Local Authority Areas (Sheffield: Faculty of Law, University of Sheffield. 1996) p 18.

110. [1994] 1 FLR 592.

111. [1994] 1 FLR 592 at 611 (emphasis added).

112. R v Brent Housing Benefit Review Board. ex p Connery (1989) 22 HLR 40; Taylor v Munrow [1960] 1 WLR 151.

113. [1994] 1 FLR 592 at 611–612.

114. [1994] 1 FLR 798. Ward J opined (at 817): ‘I am satisfied … that the financial restrictions which confronted this local authority, as they confront local authorities up and down the length and breadth of the land … were legitimate and proper factors to take into account.’

115. While it is true that in Re F: F v Lambeth Borough Council [2002] 1 FLR217, the tone of Munby J's judgment was sympathetic to consequences of allowing resources to be taken into account in this way, he none the less re-asserted their relevance (at para [34]) and went no further than to state that the ‘tax-paying, rate-paying and council tax paying public should be forced to confront what the State is doing or leaving undone’ (at para [84]).

116. See s 26(7)(b)(iii).

117. Sunkin. n 80 above, at 112.

118. Children Act 1989, s 26(3): Department of Health The Children Act 1989: Guidance and Regulations. Vol 3: Family Placements (London: HMSO, 1991) para 10.8. There are. however, a few rather exceptional issues that fall out with Pt III and Sch 2 to which the procedure does apply: see eg Representations Procedure (Children) Regulations 1991, SI 1991/894, reg 12(2). See also Williams and Jordan, n 109 above; and M J Lindsay ‘Limits of Complaints Procedures’ [1991] J Social Welfare and Fam Law 432.

119. As to why, see the point made in R v Puddington Valuation Officer, ex p Peachey Property Corpn Ltd [1966] 1 QB 380 at 400, per Lord Denning MR.

120. In R v London Borough of Burner, ex p B [1994] 1 FLR 592, Auld J said (at 613):'s 26(3) of the Act provides an individual remedy to a child in need, including a right to make representations. and to complain, about failure by a local authority … Given the express statutory provision in s 26(3), there is no reason … why the applicants should not have pursued their statutory remedy‘ (emphasis added).

121. [1995] 1 FLR 159.

122. See R v Avon County Council, ex p M [1994] 2 FLR 1006 at 1019, per Henry J; R v London Borough of Brent, ex p S [1994] 1 FLR 203 at 211, per Peter Gibson LJ; Department of Health, Listening to People: A Consultation Paper on Improving Social Services Complaints Procedures (London: Department of Health, 2000); and C Willimas ‘The Practical Operation of the Children Act 1989 Complaints Procedure’ [2002] Child and Fam Law Q 25 at 40–42.

123. See eg Leech v Deputy Governor of Parkhurst Prison [1988] AC 533. Note also that s 26(3) being more in the nature of a complaint facility than a statutory appeal led Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 3 All ER 353 to say (at 382) that: ‘the statutory complaints procedures … now available under the 1989 Act provide a means to have grievances investigated, though not to recover compensation’ (emphasis added). Since then, of course, s 92(1) of the Local Government Act 2000 has made the payment of compensation possible in cases that would, or may. amount to maladministration. But in cases falling short of maladministration, the point made in X (Minors) v Bedfordshire County Council appears intact. Recall also that a similar rationale underpinned the finding in R v London Borough of Brent, ex p S [1994] 1 FLR203: the existence of the Secretary of State's default powers under s 84 of the Children Act 1989 does not debar an application for judicial review.

124. R v Inland Revenue Commissioners, ex p Preston [1985] AC 835; and N Lewis, ‘The Exhaustion of Alternative Remedies’ [1992] CLJ 138.

125. For such an argument see R v Royal Borough of Kingston-upon-Thames. ex p T [1994] 1 FLR 798 at 811, per Ward J.

126. See R v Birmingham City Council, exp A [1997] 2 FLR 841. But see also C Williams ‘Rv Birmingham City Council, exp A: An Unsuitable Case for Judicial Review'?’ (1998) 10 Child and Fam Law Q 89.

127. R v Wandsworth London Borough Council, ex p S [2002] 1 FLR 469.

128. Z v United Kingdom (2002) 34 EHRR 3.

129. (2002) 34 EHRR 3 at para 73.

130. (2002) 34 EHRR 3 at para 73.

131. Art 8 affords respect for family and private life.

132. Art 8(2) provides: ‘There shall be no interference by a public authority with the exercise of this right [to respect for private and family life] except such as is in accordance with the law and is necessary … for the protection of health or morals, or for the protection of the rights or freedoms of others.’

133. Z v United Kingdom (2002) 34 EHRR 3 at para 74.

134. (2001) 34 EHRR 3 at para 76.

135. The detailed mechanics of ss 7 and 8 are yet to be fully worked out by the courts. But for some informed conjecture as to how these provisions may be interpreted, see N Bamforth ‘The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies’ [1999] CLJ I S9 at 163–48. One thing that does seem clear is that Wright's prediction (n 40 above. p 45) that ‘awards tinder Is X 011 the Act are likely to be modest’ was borne out by the fact that each child received only £32,000 in respect of the abuse suffered in Z v United Kingdom (2002) 34 EHRR 3, whilst £70.000 was awarded for bullying and abuse in the negligence action in C v Flintshire County Council [2001] 2 FLR 33 (comparative figures highlighted in R Bailey-Harris and M Harris ‘Local Authorities and Child Protection-the Mosaic of Accountability’ [2002] Child and Fam Law Q 117 at 131).

136. Under s 6 of the Human Rights Act 1998, the duty on local authorities to comply with the Convention is somewhat tortuously worded: public bodies are required ‘to act in a way compatible with the rights embodied in this Convention’.

137. Bailey-Hams and Harris, n 135 above, have argued that Art 8 - the right to respect for private and family life - may also he engaged in this context: at 121–23. Yet its applicability must not be overstated. For a start, the Strasbourg court found there to have been no breach of Art 8 in Z v United Kingdom (2002) 34 EHRR 3. Equally, as the authors readily concede, it is highly probable that local authorities will enjoy considerable (exculpatory) latitude with respect to the fulfilment of their Art 8 obligation under the ‘margin of appreciation’ doctrine: see eg Scott v United Kingdom [2000] 1 FLR 958: S and G v Italy [2000] 2 FLR 771. On the other hand, it has been said that where a local authority has the discretionary power to provide financial assistance under s 2 of the Local Government Act 2000, the power becomes a duty where the infringement of a claimant's Art 8 rights would otherwise occur: R v Enfield London Borough Council. ex p J [2002] 2 FLR 1. But this can be distinguished from Pt III of the Children Act 1989 where the language is in terms of duties - albeit not absolute duties - in the first place. Equally, it is noteworthy that the court held there to be no breach of s 17 of the 1989 Act in this case.

138. (1978) 2 EHRR 25.

139. Series A no 25 (1978) at para 167. Note also that successful applications by children have tended to turn on severe physical ill-treatment: see eg Costello-Roberts v United Kingdom (1993) 19 EHRR 112; and A v United Kingdom (Human Rights: Punishment ofChild) [1998] 2 FLR 959.

140. See J Wles ‘Human Rights and Child Protection’ (2001) 13 Child and Fam Law Q 431 at 438–40.

141. Human Rights Act 1998. s 22(4).

142. Human Rights Act 1998, s 7(6). This period is extendable where the court considers it equitable to do so.

143. Re S (Minors) (Care Order) (Implementation of Care Plan) [2002] 1 FLR 815 at para [62].

144. Thus far, the most authoritative statement of the Significance of Art 13's non-inclusion is that of Lord Nicholls in the recent decision of the House of Lords in Re S, Re W [2002] UKHL 10 at para [61]: ‘[A]rticle 13 is not a convention right as defined in section 1(1) of the Human Rights Act. So legislation which fails to provide an effective remedy for infringement of [one of the rights in the Convention1 is not. for that reason, incompatible with a Convention right within the meaning of the Human Rights Act.’

145. See G Marshall ‘Patriating Rights - With Reservations’ in J Beatson et al (eds) Constitutional Reform in the United Kingdom: Practice and Principles (Oxford: Hart Publishing. 1998) p 77. For further shortcomings associated with the failure of the Human Rights Act 1998 to give effect to Art 13, see Keenan v United Kingdom (App no 27729/95), Judgment dated 3 April 2001.

146. Miles, n 140 above, at 452.

147. Re WaridB; Re W (Care Plan) [2001] 2 FLR 582 at para [55], per Hale LJ: Re F; F v Lambeth Borough Council [2002] 1 FLR 217 at para [13]. per Munby J.

148. Children Act 1989, s 26(3).

149. Children Act 1989, s 26(8). Unfortunately, this provision does not prescribe the manner in which the procedure is to be publicised, stating merely that ‘[e]very local authority shall give such publicity to their procedure … as they consider appropriate’. In fact, it seems that publicity of the complaints procedure has been far from satisfactory: see Williams and Jordan, n 109 above, pp 122–23; C Williams and H Jordan ‘Factors Relating to Publicity Surrounding the Complaints Procedure under the Children Act 1989’ (1996) 8 Child and Fam Law Q 337 at 338; Social Services Inspectorate, SSI Inspection of Complaints Procedures in Local Authority Social Services Departments - Third Overview Report (London: HMSO, 1996).

150. For details of the limited extent to which complaints procedures existed in relation to the provision of social services prior to the Children Act 1989, see S Cretney and J Masson Principles of Family Law (London: Sweet & Maxwell, 1997) pp 864–65.

151. A danger with this provision is the scope for the (token’?) independent voice to be drowned out by others, potentially more partisan, who are also considering the complaint: see Bainham, n 6 above, p 356. However, findings in a valuable empirical study seem to indicate that this danger has not materialised in practice: see Williams and Jordan, n 109 above, pp 18–19.

152. Department of Health, n 118above, para 10.8.

153. The Act allows complaints to be made us of right by the relevant child, the child's parents (including the unmarried father), any other person with parental responsibility and local authority foster parents: Children Act 1989, s 26(3)(a)–(d). Exceptionally, a complaint can also be made by ‘such other person as the authority considers has a sufficient interest in the child's welfare to warrant representations being considered by them’: s 26(3)(e).

154. [1997] 2 FLR 841.

155. [1997] 2 FLR 841 at 846.

156. [1994] 1 FLR 798 at 814.

157. See alsoR v Avon County Council. Ex p M [1994] 2 FLR 1006 at 1019. per Henry J. For cases not covered by the complaints procedure and cases in respect of which this procedure would be manifestly useless, see below.

158. Representations Procedure (Children) Regulations 1991, SI 1991/894.

159. Representations Procedure (Children) Regulations 1991, SI 1991/894. regs 5, 8(3).

160. The study conducted by Catherine Williams and Helen Jordan found that apologies and explanations at this pre-informal hearing stage might often satisfy the complainant: see Williams and Jordan, n 109 above, pp 21 (regarding’ Area 1‘) and 38 (regarding’ Area 3.).

161. Williams and Jordan. n 109 above, ch 2.

162. Representations Procedure (Children) Regulations 1991, SI 1991/894, reg 6.

163. Representations Procedure (Children) Regulations 1991, SI 1991/894. reg 8(2). Note that by no means all complaints are pursued as far as this formal hearing: an apology at the earlier stage often suffices.

164. Representations Procedure (Children) Regulations 1991, SI 1991/894, regs 8(5) and 9(1), (2).

165. Representations Procedure (Children) Regulations 1991, SI 1991/894. reg 9(3).

166. Children Act 1989, s 26(7)Google ScholarPubMed(b).

167. See Williams and Jordan, n 109 above, ch 3. These findings vindicate the suggestion made in R v London Borough of Brent, ex p S [1994] 1 FLR 203 by Peter Gibson LJ that it would be ‘an unusual case when a local authority acted otherwise than in accord with the panel's recommendations’: at 211.

168. Williams and Jordan, n 109 above.

169. R v Kingston upon Thames Royal Borough Council, ex p T [1994] 1 FLR 798.

170. R v Barnet London Borough Council , ex p B [1994] 1 FLR 592.

171. Children Act 1989, s 84(1), (2).

172. Children Act 1989, s 84(3).

173. Children Act 1989, s 84(4).

174. Recall the suggestion in R v Barnet London Borough Council, ex p B [1994] 1 FLR 592 that the Secretary of State's default powers should be used where the local authority's representation and complaints procedure is inadequate and fails to comply with the Regulations (but note that this case involved an allegation about inadequate day care provision for the fives and under). See also J Logie ‘Enforcing Statutory Duties: the Court and Default Powers’ [1988] J Social Welfare Law 185.

175. R v London Borough of Brent, ex p S [1994] 1 FLR 203 at 211, per Peter Gibson LJ.

176. R v London Borough of Brent, ex p S [1994] 1 FLR 203 at 214, per Peter Gibson LJ.

177. See eg C Crawford ‘Where Judges Fear to Tread’ [1982] J Planning Law 619; M MacPherson ‘Local Ombudsmen or the Courts?’ [1987] J Planning Law 92.

178. R v Local Commissioner for Administration for the North and East Area of England, exp Bradford Metropolitan City Council [1979] 2 WLR 1. Lord Denning MR said (at 22): ‘In the nature of things a complainant only knows or feels that he has suffered injustice. He cannot know what was the cause of the injustice … he cannot know what took place behind the closed doors of the administrator's office’. For commentary, see N Lowe and H Rawlings ‘The Local Ombudsman and Children in Care’ (1979) 42 MLR 447.

179. Local Government Act 1974, s 34(3); R v Local Commissioner for Administration. exp Eastleigh Borough Council [1988] 3 WLR 113. See also s 26(1) of the Local Government Act 1974, which permits Local Ombudsmen to investigate only ‘action taken in the exercise of [the] administrative Sanctions of [an] authority’ (emphasis added).

180. See Craig, n 77 above, pp 233–34; and M Jones ‘Local Ombudsmen and Judicial Review’ [1988] PL 608 at 615–18. In the light of such definitional obscurity, it is arguable that the term ‘maladministration’ is overly emotive, conjuring too negative an image of the local authority's wrongdoing: see N Lewis et al Complaints Procedures in Local Government (Sheffield: Centre for Criminological and Socio-Legal Studies, University of Sheffield. 1986) p 228; and C Crawford ‘Complaints, Codes, and Ombudsmen in Local Government’ [1988] PL 246 at 256.

181. R v Local Commissioner for Administration for- the North and East Area of England, ex p Bradford Metropolitan City Council [1979] 2 WLR 1 at 20–21, per Lord Denning MR. See also Craig, n 77 above, p 233.

182. The Local Government Act 1974, s 26(6) provides: ‘A Local Commissioner shall not conduct an investigation … in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law … [unless he is] satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort or to have resorted to it.’ For judicial consideration of this discretion, see R v Local Commissioner for Administration, exp Croydon London Borough Council [1989] 1 All ER 1033. And for academic discussion of the parallel discretion invested in the Parliamentary Commissioner for Administration, see D Foulkes ‘The Discretionary Provisions of the Parliamentary Commissioner Act’ (1971) 34 MLR 377.

183. See Drewry, G ‘The Ombudsman: Parochial Stopgap or Global Panacea?’ in Leyland, P and Woods, T (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (London: Blackstone Press Ltd, 1997) ch 4, esp p 102Google Scholar.

184. Local Government Act 1988, b 29, Sch 3, para 5.

185. In 1997–98, nearly half of all complaints received were dealt with in ten weeks or less, while practically all complaints were dealt with within 40 weeks: see Craig, n 77 above, p246.

186. See Lewis et al, n 180 above, p 231.

187. Local Government Act 1974, s 26(5).

188. Enforceability by the courts has been advocated in some quarters - see eg JUSTICE Administrative Justice: Some Necessary Reforms (Oxford: Clarendon Press, 1988) pp 128–29 - although the preponderance of academic opinion opposes such enforceability. The main reason for resisting such an approach seems to be the damaging effects it is believed this would have on local government-local Ombudsman relations. As Norman Lewis and his colleagues put it, ‘enforcement would imperil that [hitherto harmonious] relationship and make local authorities both minimalist in their response [to the Commissioner] and particularly defensive’: Lewis et al, n 180 above, p 39. See also Crawford, n 180 above, at 261.

189. See Department of Health, n 117 above, para 10.22. See also Simons, K I'm Not Complaining But… Complaints Procedures in Local Government (York: Joseph Rowntree Foundation, 1995) p 92 Google Scholar; Williams and Jordan, n 109 above, p 136; and, more generally, Lewis, N and Birlunshaw, P When Citizens Complain: Reforming Justice and Administration (Buckingham: Open University Press, 1993)Google Scholar.

190. Williams and Jordan, n 109 above.

191. Williams and Jordan, n 109 above, ch 2.

192. X (Minors) v Bedfordshire Country Council [1995] 3 All ER 353.

193. See Bailey-Harris and Harris, n 135 above.

194. Human Rights Act 1998, s 3.

195. Wright, n 40 above, p 134. But for criticism of this view, see J Murphy (review of) Wright Tort Law und Human Rights’ (2002) 65 MLR 486.

196. So long as the roles of administrative personnel and the discretionary language of statutes continues to be uncertain, there will also be obscurity as to the precise hopes we may hold for them, in which case a sense of disappointment in many cases is almost inevitable.

197. See C Barton ‘Adoption - The Prime Minister's Review’ [2000] Fam Law 731.

198. ‘Significant harm’ is the threshold condition for compulsory action under s 31 of the Children Act 1989.

199. Gibbons, J et al Operating the Child Protection System A Study of Child Protection Practices in English Local Authorities (London: HMSO, 1995)Google Scholar.

200. For details, see C Barton ‘Adoption and Children Bill 2001 - Don't Let Them out of Your Sight’ [2001] Fam Law 431.

201. See Markesinis et al, n 15 above.

202. There is some recognition of this in Pt IV of the Care Standards Act 2000, which seeks, inter alia, to raise standards among social care workers.