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Home > Judgments > 2013 archive

ET, BT and CT (Children) v Islington [2013] EWCA Civ 323

Appeal successful in judicial review proceedings, finding that the local authority approach to an assessment of risk to three children was flawed and unlawful.

Three children lived with their grandmother following concerns about the mother's relationship with a man who had convictions for sexual offences against children. The grandmother, concerned about the risk to the children by this man, sought an assessment from the local authority as to the risk the man posed to the children and care plans for the children. The local authority initially refused. The children by their grandmother issued judicial review proceedings on the basis that the local authority had failed to carry out the assessments and enquiries pursuant to s.17 and s.47 of the Children Act 1989.

Shortly after proceedings began, the local authority carried out an initial assessment and on the day of the final hearing a further assessment was completed. A finding was sought on behalf of the children that the assessment was unlawful. An order was also sought that the local authority be directed to carry out a lawful assessment and produce care plans to meet the children's needs. The court did not find the local authority's assessment to have been unlawful.

The children by their grandmother appealed. Immediately prior to the appeal, the local authority stated that they would conduct further assessments in the near future. The Court of Appeal enquired whether the appeal had any purpose. The children by their grandmother stated that it was required as the local authority's assessment would be based on the previous assessment which was flawed.

The Court of Appeal allowed the appeal and ordered the local authority to undertake a risk assessment. The Court of Appeal found that the local authority's decision was unreasonable in the Wednesbury sense. The local authority, in reaching its conclusions within the assessment, had relied upon police evidence which significantly changed over a period of time. The local authority had failed to undertake a critical and probing evaluation of this change in police evidence which it is required to do.  The local authority's approach was accordingly sufficiently flawed to render the assessment unlawful.  

The Court of Appeal confirmed that the correct test to be applied when local authorities are assessing families in this situation is pursuant to s.47 of the Children Act 1989, a more general duty than that under s.31 of the children Act 1989. The local authority had applied the right test. Although s.31 was referred to within the assessment, a full reading of the assessment indicated that the s.47 test was applied.

Summary by Laura McMullan, barrister, Coram Chambers
________________________

Neutral Citation Number: [2013] EWCA Civ 323
Case No: C1/2012/2875

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE CRANSTON
CO74622012

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 10/04/2013

Before :

LORD JUSTICE THORPE

LORD JUSTICE LONGMORE

and

LADY JUSTICE BLACK

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Between :

ET BT and CT Appellant

- and - 

ISLINGTON Respondent
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Mr Ian Wise QC (instructed by Hopkin Murray Beskine Solicitors) for the Appellants
Mr Bryan McGuire QC
(instructed by Islington Legal Services) for the Respondents

Hearing date: 15th January 2013
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Judgment
BLACK LJ :

1. This appeal is brought by 3 children, ET, BT and CT (by their maternal grandmother and litigation friend, JT) against an order of Cranston J dated 30 October 2012 in judicial review proceedings against the London Borough of Islington (hereafter "the local authority").

2. The children have been living with JT at her home in Islington since April 2012. They came to her because there were concerns about their mother's care of them and social services in Essex had intervened in the family's life.

3. The children's mother ("the mother") had a relationship with a man called MB. He has a history of sexual offending against children. MB has considerable connections with Islington. He lived there before being sentenced to imprisonment for sexual offences in 2012 and it seems that, having now been released from prison, he is likely to return to live there again. He has relatives living there, including his mother. His mother's house is said to be two streets from the JT's home and it is there that apparently MB may be living. 

4. JT is worried that the children are at risk from MB whilst living with her in Islington and considers that the local authority have not given that risk sufficient weight. The judicial review proceedings were originally launched to address what JT said was the local authority's failure to carry out the assessments and make the enquiries that were required pursuant to sections 17 and 47 of the Children Act 1989. The objective was to obtain an order requiring the local authority to fulfil their duty to assess/make enquiries and thereafter to draw up care plans for the children.

5. By the time the matter came before Cranston J, things had moved on somewhat. Not long after the proceedings were begun, the local authority carried out an initial assessment. Further assessments were produced in late September. There was an educational needs assessment of each child, there were core assessments and there was a section 47 assessment. More detail of those assessments can be found in §1.7 and 1.8 of Cranston J's judgment which is available on bailii.org.uk.  

6. Through the summer, MB was in prison. After the September assessments, more information became available about the terms of the licence on which he would leave prison on 31 October 2012. It was understood that the licence terms would restrict MB's movements, amongst other things excluding him from the Islington area and requiring him to live at approved premises elsewhere, but for a limited period of time only.  When the case came before the court on 23 October 2012, the local authority accepted that they would have to revisit their risk assessment in the light of this and undertook that they would prepare "an assessment of the risk posed by MB upon his release from custody" and complete care plans for the children in the light of the assessment. An assessment dated 26 October 2012 was the result.

7. The focus of the hearing before Cranston J was accordingly on the 26 October 2012 assessment. It was claimed that this was unlawful and the court was invited to make a declaration to that effect and also to grant an order requiring the local authority to carry out a lawful assessment and produce care plans meeting the children's needs, meanwhile continuing to provide education for the children at home so that they could be kept safe from the risk that JT perceived MB posed to them if they went to local schools.

8. It is necessary to give a short summary of some of the background before turning to consider the arguments advanced before Cranston J on the children's behalf.

9. The children were 14, 12 and 6 years old when the hearing took place. Whilst in the care of their mother, they encountered MB. The extent of their relationship with him was debated during the appeal hearing but there is no doubt that they all know him. MB was convicted of four sexual offences against a 7 year old boy in 2001 when he was 14 years old. In 2012, he was convicted of sexual assault on a boy of 10 for which he was sentenced to 18 months imprisonment which he was serving when these proceedings began; a Sexual Offences Prevention Order ("SOPO") was also imposed. In addition, a number of other sexual allegations have been made against him which either have not been tried (indecent assault on a boy of 9 in a park in 2000 and sexual offending between 2002 and 2004 in relation to the children of SL) or have resulted in an acquittal at trial. The detail is contained in Cranston J's judgment (§1.3).

10. The local authority sought assistance from other organisations in assessing the risk posed by MB. Important amongst the material available to them was a statement made under section 9 of the Criminal Justice Act 1967 by a police officer, DS Watson, who is responsible for the risk management of sex offenders within the Borough of Islington. The statement is dated 13 September 2012. In it, DS Watson said that in order to monitor a sex offender, a Thorntons Matrix 2000 Risk Assessment is completed to identify the level of risk the offender poses, ranging from low to very high. He said that MB's risk assessment "is categorised as VERY HIGH". He set out the details of MB's previous convictions and the previous "sexual related allegations". From this, it can be seen that the victim of the most recent offence was the son of a friend of MB's. He arrived at the friend's house one evening and asked if she would let him stay the night. Whilst she was out having a drink with a friend, he assaulted her son. It can also be seen that the allegations made between 2002 and 2004 involved rape, the victims being the children of a woman with whom MB had formed a relationship.

11. DS Watson concluded his statement with this summary:

"I believe that MB poses a significant risk of sexual harm to children and the above shows that he systematically abuses children. He seems to not only abuse children within relationships that he forms but as the recent conviction shows the children of his friends are not safe. This friend  had not had recent contact with MB and he appeared 'out of the blue'. This highlights that he is capable of grooming the victims but is also capable of spontaneous offending. MB's history clearly indicates that he develops relationships with a mother in order to gain access to the children.

MB has resided in Islington for a significant period. His extended family also reside in Islington.

Islington Social Services following discovery of his relationship with KT [the children's mother] referred MB to MAPPA in April 2011. It was identified that there were clear concerns for the children within the [T] family based on his previous relationship with SL and his sexual offending history.

This most recent conviction highlights the fact that he is willing to return to a friend with the clear intention of abusing the child. This unpredictability illustrates that no child which MB has had contact with can be judged to be 'safe'. I would strongly support any action that would assist in the protection of a child for which MB has had previous contact with
." [some minor corrections made by me]

12. Another source of information for the local authority was JT. In addition to her other communications with the local authority, she made two statements for the judicial review proceedings. In them she set out her clear view that the children could not safely attend school in Islington because of the risk that MB and his associates posed to them. She pointed out that MB's mother and other members of his family live nearby. She described approaches and/or threats made at various times by MB and his family to her and to the father of one of the children. She said that she believed that the children's mother, KT, continued to have a relationship with MB, having written to him, had telephone contact with him and visited him in prison and also continued to use his last name from time to time. She set out her concerns about the children coming into contact with a particular friend of MB. She made reference also to an assessment document prepared by Essex County Council, the local authority for the area in which KT lived with the children. The bundle prepared for the appeal hearing was comprised of selected documents only with the commendable object of not overburdening the court with unnecessary material; this had the less desirable side effect that we were unable to look at some of the documents that would have been helpful, of which this assessment was one. JT referred to there being a suggestion in it that BT (at least) was using MB's surname and all the children called him "Dad". She also referred to Essex social services having said that it was believed that the children had spent a significant time with MB.

13. A further source of information for the local authority was such assessments as were made pursuant to the Multi Agency Public Protection Arrangements (MAPPA). A MAPPA meeting took place on 11 September 2012. The minutes of this contain some detail about MB. The following assessment is recorded: "MB was agreed as very high risk of harm". The initial plan was to place him in approved premises with a range of licence conditions "to minimise the likelihood of him being able to develop a relationship with a family with children or with children on their own".

14. The local authority were also able to seek information directly from social services in Essex. It was difficult to follow during the appeal hearing what information they had from that source at what time. Undoubtedly, more information was obtained from Essex after the appeal hearing concluded and I now need to take a detour from the central issues in the appeal to detail that and to explain a number of matters.

15. In addition to the judicial review proceedings, there are private law proceedings in relation to the children. The information provided about these proceedings has been limited but it appears that JT and KT are in dispute over where the children should live, two possibilities being a special guardianship order in favour of JT and a residence order in favour of KT. There appears also to be local authority input into those proceedings. When we heard the appeal, there was about to be a hearing in the private law proceedings. We questioned whether it was appropriate to proceed with the appeal until the outcome of that was known. We were persuaded to continue with the appeal hearing but it was agreed that the parties would update us as to the outcome of the forthcoming private law hearing before we gave judgment. The updating process proved less straightforward than one might have anticipated as the parties did not agree over what had happened and filed rival updating notes. I will not go into the detail of these here because it seems to me that the sort of issues that were joined were much more the province of the family court and no purpose would be served in airing them here.

16. From the private law order of 24 January 2013, it can be seen that the court heard evidence from a social worker from Essex and a psychologist and adjourned the matter part heard until June 2013 in order that there should be further assessment by the psychologist.

17. The local authority informed us that the reason for the adjournment was that having heard the evidence of the social worker and psychologist, the children's guardian changed her recommendation that they should remain in JT's care under a special guardianship order to a request that further evidence should be obtained before a final decision was made and the district judge was also concerned as to whether there was sufficient evidence to make a final decision. JT denies that there was any change in the guardian's recommendation which she says was for a residence order in her favour but says the district judge wanted further assessment in relation to the main order and as to whether the children's mother could be assisted to improve the consistency of her attendance at contact.

18. The local authority's updating note to us explained their perception of the issues that had been highlighted by the evidence in the private law proceedings, including matters going to the suitability of JT. It also provided further information about the extent of the children's relationship with MB. The local authority said there was no evidence in the Essex files of MB and KT having cohabited and reported that they had made further inquiries of the Essex social worker who had seen no evidence herself to suggest cohabitation. She said she was certain the children never lived with MB or regarded him as daddy. The only reference to "daddy" was said to be that one of the children linked him to her Facebook page with something such as "Daddy madman [name]". It was said that in response to enquiries in January 2013 of JT by an Islington social worker about whether the children referred to MB as "daddy", JT said they did not.

19. JT does not agree that any proper concern about her has arisen, for reasons explained in the note filed on her behalf. She questions the conclusion that there was no cohabitation between KT and MB. She questions the views expressed by the Essex social worker to the local authority which she considers conflict with the documentation prepared by Essex, although she does accept that the children no longer refer to MB as "daddy".  

20. In their first note, the local authority said that they would need to conduct further assessments in the near future and detailed the sort of issues that required fresh consideration, including some matters which were apparently potentially adverse to JT. They reiterated this in a later note in which they acknowledged "the obvious need for a review to take account of the new information gleaned during the course of the [private law] hearing and the preparation for it".

21. In the light of the fact that the local authority were intent upon assessing the case again in any event, we enquired of JT's representatives whether the appeal still had a purpose, given that the most that could result from our determination would be a fresh assessment. We suggested that attempts should be made to resolve the case without the need for a judgment. We were invited to give time for that to be explored and did but agreement was not achieved. It appears that negotiations may have foundered over the setting of the parameters of the fresh assessment or the costs of this appeal or both. 

22. The local authority formed the view that the appeal was by now in any event academic. JT's representatives did not agree because they considered that the local authority's fresh assessment would be predicated on the previous assessment which they considered to be flawed as they indicated in a letter to the court dated 25 February 2013. Any attempt to resolve who was right about this would no doubt have required everyone, including the court, to expend a considerable amount of time and would inevitably have generated significant further cost. In the circumstances, it seemed that the simpler course was to give judgment on the appeal as we are now doing. 

23. I return at last to the October 2012 assessment and the criticisms of it made by JT. The assessment is expressed to be an addendum to the earlier risk assessment but the earlier risk assessment was not filed with the court for the appeal so it can be assumed that nothing turns on it.

24. The conclusion of the October assessment was that the risk posed by MB was manageable for 15 reasons which were summarised in the concluding paragraph of the assessment document and to which I will need to return.

25. The introduction to the assessment said that the local authority

"would like to respectfully emphasise that despite the order of the court it is not often in our remit to assess and comment on levels of criminal risk posed by members of the public to children unrelated to them. Accordingly in this case we have paid careful regard to the Police evidence available. We acknowledge that MB was in a relationship with the children's mother; however the children have been living with their grandmother for 6 months now, who is not and has never been in a relationship with MB. Our remit regarding assessing risk of significant harm is harm which is attributable to care or parenting.

2. In this case, it is widely acknowledged that the grandmother is able to act protectively; in the view of [the local authority] she has in fact been over-protective. As such, although we offer our opinion as to the levels of risk posed by MB, we assert that it is the role of probation and the police to actually assess his risk of offending, and our conclusions are therefore based on the trusted information provided by these services and our assessment of the grandmother's capacity to protect."

26. Counsel for the children, Mr Wise QC, argued that this introduction revealed that the local authority had adopted the wrong test in carrying out their assessment.

27. Three provisions of the Children Act 1989 are relevant to this argument. Section 17 sets out the general duty of the local authority to safeguard and promote the welfare of children in their area who are in need; this involves them determining what, if any, services to provide for a particular child. Section 47 imposes on the local authority, when they have reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, a duty to investigate, making such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare. Section 31 is a less general section, concerned with care and supervision orders. Section 31(2) provides that the court may only make such an order if it is satisfied that the child is suffering or is likely to suffer significant harm which is attributable to the care given to him or likely to be given to him if the order were not made not being what it would be reasonable to expect a parent to give to him.

28. Counsel's argument is that the statement in the assessment that the local authority's "remit regarding assessing risk of significant harm is harm which is attributable to care or parenting" shows that the local authority took a section 31 approach which was not appropriate as the context was not care proceedings. They should, he says, have looked at matters from the perspective of their more general duties in sections 17 and 47, applying the test in section 47.

29. Cranston J did not accept that the wrong test was applied. He thought that the social worker's allusion to the words of section 31 was simply an assertion that that form of assessment "is what the council's social workers usually do" whereas assessing criminal risk, here the risk of sexual offending, is not central to their work and is usually the task of the criminal justice agencies. I agree with him. A careful reading of this paragraph and of the remainder of the report shows that Ms Forbes, the author of the report, was not announcing that she was going to approach her assessment as if this were a section 31(2) issue but explaining why reliance would be placed on other agencies. She said explicitly, earlier in the paragraph, that it is not often the local authority's remit to assess and comment on criminal risk posed by members of the public to children unrelated to them and that accordingly they had paid careful regard to the police evidence. Paragraph 2 of the assessment made a similar point, explaining that the local authority's conclusions were based on "trusted information" provided by probation and the police plus their own assessment of JT's capacity to protect the children. The assessment then went on to identify the material obtained from a number of sources, including the police Child Abuse Investigation Team, DS Watson, and the MAPPA panel. It was not, however, limited to parroting the information provided by those sources. The local authority clearly set themselves the task of evaluating the information, concluding (§34 o)) that the view of the other agencies "has been arrived at reasonably and proportionately", although I will come shortly to the question of whether their view about that was sustainable. We can also see that the information was then incorporated into the local authority's assessment and conclusions together with other factors such as JT's capacity to protect the children, the children's awareness of the risks and the work that will continue to be undertaken with them. Accordingly, I do not accept that the local authority confined themselves to investigating the risk attributable to parenting or in any other way misconstrued their role in assessing the risks for the children.

30. However, the fact that the local authority set out with the correct understanding of their task is not the end of the matter. Mr Wise also argued that their evaluation of the material made available to them was flawed. This submission focussed particularly on the position of DS Watson. It was submitted that DS Watson's evaluation of the risk posed by MB underwent a material change and the local authority failed to explore the reasons for this and/or the implications of it.

31. Mr Wise submitted that the situation was like that in R v Ealing LBC ex p C (2000) 3 CCLR 122. That case concerned the local authority's assessment of the housing needs of a disabled boy. The local authority concluded that the boy's accommodation was suitable provided aids and adaptations were put in place and that fresh accommodation for him was not needed. However, the Court of Appeal found that the local authority's decision and decision making process were both flawed. There was no analysis of the accommodation problems faced by the boy and his family, no account taken of a report from a doctor which emphasised the need for larger accommodation, and no proper reasoning process. Judge LJ, as he then was, said that:

"The decision was therefore susceptible to judicial review on the basis that it is unreasonable in the Wednesbury sense. To adapt Lord Diplock's observation in Tameside:

Did the council ask themselves the right question and take reasonable steps to acquaint themselves with the relevant information to enable them to answer it correctly?

The answer to the first is no: the right question or questions were not asked. The answer to the second question equally is no: reasonable steps were not taken by the council to enable the question to be answered correctly." (page 130E)

32. Mr Wise argued that the local authority's decision was equally unreasonable in the Wednesbury sense here.

33. Counsel for the local authority, Mr McGuire QC, submitted that the local authority's obligation when faced with two inconsistent contributions such as DS Watson made here was to recognise the discrepancy and seek a sufficient explanation of it. He submitted that they had done that here. One of the features on which he submitted they were entitled to rely is that further information was available about how the risk was to be managed by the time DS Watson gave his later opinion. He further submitted that the assessment was based on a good deal more information than that emanating from DS Watson and was not therefore undermined by any difficulties in DS Watson's position. 

34. To explore these rival contentions, I need to go into the circumstances of DS Watson's contributions in a little more detail.

35. It will be recalled that DS Watson provided a statement on 13 September 2012 in which he spoke in strong terms of the risk posed by MB, see §10 above. Ms Forbes reported in the October assessment document that she spoke to DS Watson on 25 October 2012 and his position was that "there is nothing in MB's history to suggest that the T children are at more risk than any other child in the Islington area". The assessment went on to say that:

"10. DS Watson informed me that there is nothing in MB's history that would suggest any risk of 'snatching' a child and that he has not been known to seek out children once his relationships with their mothers has ended.

11. DS Watson emphasised that in his belief MB would need to be alone with a child in order to sexually abuse them within his community."

36. This view of DS Watson was reflected in the final reason given in the summary concluding the assessment document which said:

"p) The children are considered by the police to be at no more risk than any other child in Islington."

37. It appears that that was where matters stood in relation to DS Watson's contribution until the hearing before Cranston J. Ms Forbes was at court for that hearing and, as she explained in a statement produced during the course of the hearing on 29 October 2012, it had become apparent to her that she should have set out some further information about DS Watson in the assessment. It is clear from that statement that she was conscious that what DS Watson had said to her about risk at the time of the October assessment was quite different from what he said in his September statement. She said that she had queried with him at the time why this was and he said that he had felt under considerable pressure from the children's solicitor to support them in their pursuit of alternative accommodation. He told her that he stood by his later view. She said that she telephoned DS Watson again later that day and told him that she intended to refer in her assessment to what he had told her earlier in the day. He asked her to remove this from her draft. Plainly, she did.

38. Cranston J did not consider that the treatment of DS Watson's position in the October assessment was unreasonable. He said:

"As I have said, there are flaws [in the assessment]. It is evident that DS Watson changed his evaluation from his section 9 statement. His up-to-date account, as set out in the 26 October assessment, raised a number of obvious questions. Perhaps the council's risk assessment could have contained a fuller explanation as to the reasons for the turnaround. However, it should not be forgotten that it is the council's assessment, not DS Watson's, which is what the legislation requires. Indeed, that is what the 26 October risk assessment amounts to: the council's evaluation of risk, having taken into account DS Watson's views, along with those of a range of other agencies."

39. I do not share Cranston J's view of this issue. I have no doubt that the assessment needed to acknowledge and deal explicitly with the change in DS Watson's position. However, that was not all. To my mind, the change in his position required rigorous probing and critical evaluation by the local authority. His September statement revealed that MB had a persistent history of sexual offending/allegations and that on more than one occasion the incidents had concerned children of people known to MB. Not only did DS Watson express the view in it that no child with whom MB had had contact could be judged safe, he also set out facts which were capable of supporting this view. Pressure from the children's representatives (which I should say is denied) might, I suppose, explain him expressing a view of risk which was more pessimistic than he really felt to be the case. However, it could not have affected the historical facts that he provided. I do not therefore think that it was open to the local authority simply to accept DS Watson's explanation for what they recognised was a significant change in view. This was particularly so when, for the reasons they explained, they were relying so heavily upon the risk assessments of others in formulating their own assessment and bearing in mind what an important component in these external assessments DS Watson's view was. We can see that their own view of the situation was considerably influenced by the idea that these children were no more at risk than any other children in Islington not only from the conclusions of the assessment but also from §25 which said:

"The risk has been assessed as being no higher for these children than any other in Islington. The Local Authority cannot reasonably be expected to consider re-housing every child in Islington who either has or has not come in to contact with MB in the past."

40. In my view, therefore, this ground of appeal is made out and I consider that the approach taken by the local authority to DS Watson's contributions was sufficiently flawed to render the assessment unlawful. The local authority did not ask themselves the right questions including whether DS Watson's more recent view of risk was reliable and what the risk to these particular children from MB really was. It follows from this that another assessment will have to be done. 

41. Mr Wise argued that the assessment was also flawed by the local authority's approach to the question of JT obtaining an injunction against MB. In the section of the assessment dealing with the advice from DS Wood of the Child Abuse Investigation Team, there appeared the following:

"Ms Wood advised that one further option available to the children's grandmother, if she felt it was necessary, was to speak with her solicitor about applying for an injunction."

42. In the overall conclusion of the assessment is the following passage:

"31. Notwithstanding all the above, in the interim period i.e. from the end of October when MB is released until the outcome of the final hearing is known, the Local Authority would like to invite JT to seek a further exclusion order or injunction via the private Family proceedings if she wishes, to reassure the grandmother and to avoid the children coming into contact with MB." [my italics in this quotation and the previous one]

43. Mr Wise submitted to Cranston J that this showed that an injunction was considered by the local authority to be a necessary part of the child in need plan and criticised the local authority for putting the burden of dealing with this on JT, especially when it was far from clear she was able to address the problem. Cranston J did not accept this submission. He accepted that the phraseology was infelicitous but it seemed to him that read in context, what was said about an injunction was addressed to JT's perception of the risks rather than the local authority's own assessment.

44. Mr Wise submitted to us that Cranston J was wrong in taking this approach. However, I share the judge's view. I note that §31 of the assessment does refer to the injunction being "to reassure the grandmother and to avoid the children coming into contact with MB" but that was immediately preceded by the local authority indicating that they would like "to invite" JT to seek an order "if she wishes". The whole passage must in my view be read together. When this is done, it is clear that seeking an injunction is an option that the local authority are suggesting for JT's consideration, not requiring as a necessary part of any child protection plan.

45. Finally, it was argued that Cranston J had wrongly failed to recognise the significance of factual errors in the assessment report. Cranston J did not accept that the three points that Mr Wise identified as factual inaccuracies were all actually wrong but he said that in so far as there were errors, they did not undermine the conclusion of the assessment as "there are many bases to the conclusion ….which are accepted on all sides as being accurate".

46. In the light of my view that the assessment was fundamentally flawed by the approach taken to DS Watson's change of view and in the light also of the fact that a new assessment may already be underway pursuant to the local authority's ordinary duties or, if that is not so, will have to be carried out as a result of our determination, I do not think anything would be gained by going into the alleged factual inaccuracies. During the argument before us, more factual material potentially relevant to the question of risk was emerging and it has continued to do so since the hearing. I find myself somewhat confused as to which bits of this material were available to the local authority at the time of the October assessment (for instance in such material as Essex provided to them) but had not yet been digested or were simply not mentioned in the assessment and which bits only become available for the first time after the assessment was concluded. It may well be that this confusion arose from the use of an abridged bundle for the appeal hearing. In any event, Mr McGuire recognised during argument that the emerging material would need to be considered by the social worker and it is clearly incumbent on the local authority to carry out each assessment that they do with full attention to the facts as they appear to be at the time of the assessment.

47. I will only make specific mention of one factual matter. Mr McGuire rightly conceded in argument that the assessment did not describe the nature of the children's past connection with MB in the way one would wish. It is implied in the assessment document that they knew him but the question is not dealt with expressly as, in my view, it should have been. It is difficult to see how one can evaluate risk to the children without an understanding of the nature of their relationship with MB as this would, for example, affect whether they would be fearful of him or perhaps drawn to him and open to exploitation. It will be recalled that the October assessment was an addendum to an earlier risk assessment and Mr McGuire hoped to find more reference to this issue in that document (which we have not seen ourselves). However, having studied it, he indicated to us that it did not provide him with as much comfort as he would have wished, as he put it. I have no doubt, however, that the issue will be covered properly in the forthcoming assessment.

48. Cranston J held that "the intensity of Wednesbury review is ….heightened under the Children Act 1989 in circumstances like the present, where the consequence of the council falling into error is the possible sexual abuse of children and young people" (§1.26 of the judgment). He approached his review of the October assessment from this perspective. A Respondent's Notice was filed by the local authority arguing that the judge should have taken a conventional Wednesbury approach. The time estimate for the appeal hearing was insufficient to permit argument on this point and we indicated that we would have to reconvene to deal with it if a determination of the issue was necessary for our decision. As it turns out, it is not. My own consideration of the case has been shaped by ordinary Wednesbury principles and I have no doubt that the problems over DS Watson's contribution to the assessment are such as to cause the assessment process to fail the ordinary Wednesbury test. Our decision in this case does not therefore develop the law on this point, or indeed on any other point, turning as it does on its own facts.

49. Before I conclude, it might perhaps be helpful to underline the limitations of the judicial review process and indeed of the appeal process. It seemed to me that the expectation of those representing the children may not have taken into account those limitations. They appeared to be seeking not only to displace the October assessment, thus requiring the local authority to conduct a fresh assessment (an objective consistent with the limits of judicial review), but also to dictate how the local authority should go about that assessment on the facts of this particular case (which was not). I may be mistaken about this of course and I have noted that in their letter to the court of 25 February 2012, the children's solicitors said expressly that they were mindful of the limits of what can be achieved for these children by court order. However, I also noted the exchange of correspondence that took place between the solicitors for the parties when the court contacted them suggesting that the matter may have become academic. In this correspondence, the children's representatives proposed that the risk assessment should be carried out by an independent social worker and set out a detailed list of the matters that it should cover and it was the lack of progress in agreeing this that led to their subsequent request that judgment should be given. It was also noteworthy that we were provided with information as to what had been happening in the children's lives both in the letter of the 25 February (an update with regard to schooling) and in a further letter from the children's solicitors of 21 March (information on very recent developments said to be relevant to sexual risk to the children). I can understand that these matters were thought to be of importance in relation to the children's welfare but the appeal concerns the October assessment and recent material of this sort is not relevant to the determination of the questions that arise. I have no doubt that the information provided to us will also be provided to the local authority who will consider its implications in terms of the risk to the children. It can, of course, also be adduced before the family court dealing with the private law proceedings.

50. Although I would be minded to allow the appeal and to substitute for the judge's order a declaration that the October assessment was unlawful for the reasons I have given, I would like to stress that this should not be taken as an indication that I have reached any view as to the proper conclusion on the risk posed by MB to the children and the steps, if any, required to address it. It will be for the local authority to assess these questions in accordance with their duties. 

LONGMORE LJ:
51. I agree.

THORPE LJ:
52. I also agree.