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Home > Judgments > 2009 archive

EW & BW v Nottinghamshire County Council [2009] EWHC 915 (Admin)

Application for judicial review arising from alleged failure of a local authority to provide properly drafted core assessments of children in need. Application refused.

The claimants were children of a mother with significant mental health problems and unstable relationships. At the time of the hearing the daughter, aged 15 was in foster care while the son, aged 17, was living at home. In May 2007 the family was again referred to the council after an attempted suicide by the mother and the children were placed on the child protection register as being at risk of firstly of emotional harm and at subsequent meetings, of physical harm. An initial JR was made in 2007 on the grounds that the initial assessments were flawed in that they did not follow the relevant guidelines. The local authority denied the allegations but reassessed the children’s needs.

In this hearing, counsel for the claimants again alleged that the new assessments did not satisfy the relevant Framework. Mr Justice Keith, although commenting that it would have been better for a family judge to have heard the case, found that the assessments did now meet the criteria, unlike those carried out in 2007.  Any shortcomings of the local authority were those of delivery. The judgment ends with a discussion on costs and point of appeal as counsel for claimants’, requesting permission to appeal, argues that the judge’s findings were not consistent with other authorities. Permission was refused.
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CO/10559/2008
Neutral Citation Number: [2009] EWHC 915 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Thursday, 5 March 2009
 
B e f o r e:

MR JUSTICE KEITH

Between:
(1) EW
(2) BW
Claimants

v

NOTTINGHAMSHIRE COUNTY COUNCIL
Defendant
 
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Mr Ian Wise (instructed by Messrs Bhatia Best, Nottingham NG1 7FF) appeared on behalf of the Claimants
Mr Leslie Samuels (instructed by Messrs Freeth Cartwright LLP, Nottingham NG1 6HH) appeared on behalf of the Defendant
 
A P P R O V E D  J U D G M E N T
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1. MR JUSTICE KEITH:  This is a claim for judicial review.  It relates to two children in need.  EW is a girl.  She is 15 tomorrow, having been born on 6 March 1994.  BW is her brother.  He is now 17, having been born on 9 December 1991.  The original claim which was brought on their behalf alleged that the defendant, Nottinghamshire County Council ("the Council"), had failed to comply with its obligation under section 17(1) of the Children Act 1989 ("the Act") to safeguard and promote their welfare by failing to produce core assessments which properly assessed their needs and identified how those needs should be met.  That claim is still being made, both in respect of the original core assessments, and further ones which have been produced since the claim was issued.  There was, up to today at any rate, an additional claim relating to BW, which was that the Council had failed to comply with its obligation under section 20(1) of the Act to provide him with accommodation. 

2. On 19 November 2008, Mr David Holgate QC ordered that the application for permission to proceed with the claim should be heard together with the substantive claim in the event of such permission being granted.  He also ordered that the hearing should be before a judge of the Family Division, if possible.  The parties obtained the date for the hearing of these claims without informing the listing officer of that part of the order, which was unfortunate because such a judge would have had a much better feel for some of the issues which arise for determination in this case. 

3. The background facts are not in dispute.  EW and BW come from a family with many difficulties.  Their mother, AW, is 40 years old.  She has significant mental health problems, and has been described as having learning difficulties.  She claims to have been the victim of abuse as a child, and she has been abused herself by violent partners for much of her adult life.  She has attempted suicide on a number of occasions, and there are suggestions that she has used heroin.  The whereabouts of the children's father is not known.  She has been in a relationship since at least 2007 with SB, but evidence placed before the court today suggests that that relationship, which was stormy at the best of times, has recently come to an end.  SB himself is 21 years old, and has used heroin in his time.  He has a long history of offending for someone of his age, and is alleged to have assaulted both AW and EW at times. 

4. Both EW and BW are on the child protection register.  EW has been known to self harm and is at risk of sexual exploitation.  She has not attended full time education for over a year.  She has attempted suicide in her time.  BW has been known to self harm as well.  He has learning difficulties, and has now left school.  He is not in either employment or training.  He has been in trouble with the police and has a criminal record, including an offence of arson. 

5. When these proceedings were issued on 4 November 2008, EW was living with her mother in a three bedroom council flat which was in significant disrepair.  BW had left recently to live with an aunt in view of the tension at home, but the domestic circumstances of EW and BW are fluid.  Since 3 December 2008, EW has been living in foster care.  She does not wish to return home to live with her mother.  She wants to live in the future with one of her mother's former partners and his current partner, or with her maternal grandmother.  These potential placements are being assessed, and those assessments are due to be completed by 6 April 2009.  In the meantime, EW is said to be content to remain in her current foster placement. 

6. EW is unwilling to attend the school at which she is currently enrolled, even though a new curriculum was arranged for her some time ago.  The hope is that she will now attend an educational programme which prepares children for employment, E2E.  EW was due to start there recently.  If that does not work out, contingency plans are in place for her to attend a different educational resource.  Financial support is being provided to her foster carers, and personal support is available to her from a variety of professionals, including, of course, the social worker who has been allocated to her. 

7. As for BW, he has now returned home and lives with his mother.  He is said to be unwilling to engage with the Council or other agencies, though he denies that.  He wants to live in accommodation of his own, and he has been accepted as suitable for semi independent accommodation in a supported setting provided by an outside agency.  There is a waiting list for that accommodation, and it is thought that such accommodation will become available within the next two to four months.  At one stage he was telling social workers that in the meantime he wanted to stay with his mother.  He rejected the option of living in different semi independent accommodation in a town 14 miles away, and said that he did not want to move into bed and breakfast accommodation.  He has never denied telling social workers that, though in the last few days he has made a witness statement explaining the kind of accommodation which he would currently be prepared to accept.  He was at one time in the same educational programme which prepares children for employment which EW was recently due to start, but his attendance was irregular.  He has recently said that he would consider returning to that programme, and his suitability to return to it is currently being assessed   at least that was the position a week or two ago, and I have not been told otherwise since. 

8. With all that in mind, it is necessary to see what steps have been taken by the Council to assess EW's and BW's needs and to identify how those needs should be met.  The Council's involvement with the family goes back to July 1993 when concerns were expressed that AW was allowing BW to have contact with inappropriate adults, but for present purposes it is unnecessary to go back further than May 2007 when the family was referred to the Council's Children and Young People's Department because of the fragile state of AW's mental health.  She had recently attempted suicide, and the children, including an older girl, LW, were living with members of their extended family.  Core assessments on EW and BW were completed in June 2007.  Those assessments referred to a plan of action which had been agreed for the children at a multi agency meeting on 3 May 2007, though the view was expressed that AW and her children might not adhere to that plan of action, and that it was a matter of waiting to see what happened.  The author of those core assessments said that she could not see a particular role for the Children and Young People's Department other than monitoring the situation, though that may have been because the appropriate initiatives were already in the plan of action agreed at the multi agency meeting.  That plan of action was not included in the evidence before me on the first day of the hearing of this claim, but I have now been provided with it. 

9. It was apparent that AW was unable to manage EW's and BW's behaviour.  However, she failed to attend the meetings which had been arranged to discuss her parenting skills.  Moreover, EW and BW failed to attend a meeting which had been arranged for them to see the social worker who had been assigned to them.  Nevertheless, social workers visited the family's home on 31 August and 19 October 2007, and eventually a child protection strategy discussion took place on 23 October 2007.  The Council must have had reasonable cause to suspect that EW and BW were likely to suffer significant harm, because it was decided to conduct enquiries under section 47(1) of the Act to enable it to decide whether any action needed to be taken to safeguard their welfare.  Following a child protection conference on 8 November 2007, both EW and BW were placed on the child protection register.  They were categorised as being at risk of emotional harm. 

10. A series of meetings, three in all, of the core group concerned with the family took place in November and December 2007 and in January 2008.  A further child protection conference on 8 February 2008 continued to address the children's problems.  A lengthy report on the family had been prepared by the social worker assigned to EW and BW.  This was a multi disciplinary conference, and a child protection plan emerged from it which identified a series of initiatives to be undertaken or continued to promote the children's welfare.  These initiatives were to be progressed without the support of AW.  She had failed to attend either of the child protection conferences, having expressed the view that they were "a waste of time", and that EW and BW did not "need protection plans". 

11. The core group continued to meet to discuss the family.  A total of four such meetings took place in March, April, June and July 2008, and these were followed by a further child protection conference on 24 July 2008.  AW attended this conference with the solicitor who represents EW and BW in these proceedings.  At that meeting, it was decided that EW and BW should remain on the child protection register, but they were categorised as being at risk of physical harm as well as emotional harm.  A further child protection plan was drawn up which again identified a series of initiatives to be undertaken or continued.  Since then the core group continued to meet in 2008, with meetings taking place in September, October and November. 

12. It is in the context of these meetings and conferences that a wide range of services have been offered to the family.  They are set out in the evidence, and it is not necessary to repeat them here.  In addition, regular contact has been maintained with the social worker assigned to EW and BW since the initial core assessments, and she has apparently met the family no less than every four weeks, and often more frequently. 

13. The original claim for judicial review attacked the June 2007 core assessments.  Since local authorities are required by section 7(1) of the Local Authority Social Services Act 1970 to act under the general guidance of the Secretary of State in exercising their social services' functions, the core assessments had to be prepared in accordance with such guidance, unless there was good reason not to do so.  It is not suggested that the relevant guidance   which is contained in a document headed "Framework for the Assessment of Children in Need and their Families" and issued by three government departments   should not have been followed in this case. 

14. It is unnecessary for me to spell out the many paragraphs in the guidance on which Mr Ian Wise for the claimants relies.  This is ground which has been well travelled in the authorities.  For example, in R (on the application of AB and SB) v Nottingham City Council (2001) 4 CCLR 295, Richards J (as he then was) said at [41] that "the whole tenor of the Framework document [and of other guidance to which he had been referred] is that the outcome of the child protection path for a child in need should be something equivalent to a core assessment", and that such an assessment "should be a systematic analysis of needs which takes into account the three domains (child's developmental needs, parenting capacity, family and environmental factors) and involves collaboration between the relevant agencies so as to achieve a full understanding of the child in his or her family and community context."  The three domains were the three "domains" which the Framework requires core assessments to focus on, and within each of those domains there are a number of "dimensions" which the Framework requires core assessments to address.  At the end of the process, said Richards J at [20], "it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help".  Striking down the equivalent of the core assessment in that case, Richards J described it at [43] as "essentially a descriptive document rather than an assessment, and in any event sufficient detail was still lacking both as regards the assessment itself and as regards the care plan and service provision. There was no clear identification of needs, or what was to be done about them, by whom and by when."

15. The Council did not acknowledge that the June 2007 core assessments on EW and BW were flawed, but in view of the claim for judicial review it decided to assess their needs again.  Whether those assessments should be described as updated assessments or fresh ones does not really matter.  Two such assessments were completed for each child.  Initial assessments were prepared on 11 December 2008 by Claire Sampson, a team manager in the Council's Children and Young People's Department, and core assessments were prepared on 28 January 2009 by Jayne Hall, who has been the social worker responsible for EW and BW since the end of 2007, but who was not responsible for the June 2007 core assessments.  In addition, up to date care plans for the children were produced on 19 February 2009. 

16. There is no doubt that the June 2007 core assessments left much to be desired.  The Council does not now suggest otherwise.  They give the appearance of having been prepared either quickly or without much care.  They are very brief, and at first blush they were little more than a narrative of information which the social worker who compiled them had been given.  There was little, if any, analysis of the children's precise needs, or of how those needs were to be met. 

17. However, the Council contends that these core assessments have to be seen in the context of all the steps taken by the Council to safeguard and promote the welfare of EW and BW since then.  The support they have received has to be considered holistically, and it would not be right to look at the June 2007 core assessments in isolation.  It is true that the core assessment is a critical part of the process in deciding how a child in need can be helped, but in an appropriate case it is possible for any shortcomings in a core assessment to be neutralised by other action which properly identifies the child's needs and how they are to be met. 

18. That, in essence, was what Richards J decided in the cases of AB and SB. Core assessments had not been produced in that case, and at [40] Richards J said that there had been “no error in approach in moving to a section 47 inquiry, a child protection conference, registration on the child protection register and then the preparation of a child protection plan and subsequent reviews of that plan”.  However, he added at [41] that "where an authority follows a path that does not involve the preparation of a core assessment as such, it must nevertheless adopt a similarly systematic approach with a view to achievement of the same objectives. Failure to do so without good cause will constitute an impermissible departure from the guidance."  It is therefore necessary to see whether the Council met this standard, though it would not be right to look for slavish adherence to every feature of the Framework.  One should guard against setting Elysian standards for local authorities or setting the bar too high.  What is important is whether the outcome of the process on which the Council was engaged included a proper analysis of EW's and BW's needs, and a clear identification of how those needs were to be met, including by whom and by when. 

19. With that in mind, Mr Leslie Samuels, the Council's counsel, has prepared a document which identifies, by reference to each of the domains and dimensions which the Framework requires core assessments to address, what the relevant documents say about (a) EW's and BW's needs, and (b) how those needs are to be met.  In addition to the original core assessments themselves, those documents are (i) the minutes of the child protection conference on 8 November 2007, including reports prepared for the conference by Rosalind Nelson Jordan (EW's and BW's social worker) and Beth Sheen (the school nurse) and the child protection plan which emerged from that conference, (ii) the minutes of the child protection conference on 8 February 2008, including a report prepared for the conference by Jayne Hall, who had taken over as EW's and BW's social worker by then, and the child protection plan which emerged from that conference, and (iii) the minutes of the child protection conference on 24 July 2008, including reports prepared for the conference by Jayne Hall, Beth Sheen and Sue Benson, the parenting case manager in the Nottinghamshire Youth Offending Service, together with the child protection plan which emerged from that conference.  There were other reports on EW and BW which the conferences considered, but those were the principal ones. 

20. By way of response, Mr Wise has helpfully prepared a note for the hearing today, in which in paragraph 5.4 he comments on each of the passages in Mr Samuels' document under the relevant domain and dimension.  I have therefore taken time out to read each of the passages in Mr Samuels' document in the light of Mr Wise's comments on them. 

21. It is not practicable for the court to embark on a detailed analysis of each of the passages relied on and Mr Wise's comments on them, but I can take the dimension of "education" in the domain of "child's developmental needs" as an example, because that topic was the only topic debated at any length before me.  Looking at them overall, EW's and BW's needs which the passage on that topic identified was the need for both of them to return to full time education, bearing in mind that their attendance at school in the past had been erratic to say the least. 

22. In relation to BW, what emerged at the three child protection conferences was as follows.  At the child protection conference on 8 November 2007, the conclusion was that a "normal" school was not right for him.  A statement of his special educational needs, and what was described as "a programme" (which I assume means a programme of measures designed to meet his special educational needs which the statement had identified), would be prepared within six months.  At the child protection conference on 8 February 2008, BW's dyslexia was noted, and the point was made that the extent of it would be difficult to test in view of his absence from school.  In other words, it would be difficult to tell whether any increased dyslexia in the future was the product of an inherent condition, or whether it was the result of his continued lack of education.  However, it was also noted that BW was frustrated by what was described as "the lack of education provision", and it was acknowledged that it would be beneficial for the whole family if BW, and EW for that matter, were to be out during the day doing something constructive.  The minutes of the conference referred to BW's wish to have a job in gardening, and that was a reference to a comment in the social worker's report, which referred to a discussion at a meeting of the core group on 23 January 2008 about the possibility of BW going on a gardening course.  The social worker had not yet had an opportunity to discuss that with the relevant teacher.  The report also referred to the education welfare officer's involvement in attempting to get some kind of education for BW, and it was noted that Sue Benson remained concerned that "the education department is failing to offer [BW] a service". 

23. At the child protection conference on 24 July 2008, it was noted that a place had been found for BW in an educational programme which prepares children for employment, E2E.  He was going there one day a week initially with the intention that it should become full time, and although he attended the first couple of sessions since transport was provided, he stopped going when that transport ceased.  The report from his social worker said that the difficulty was that BW was no longer of an age when school was compulsory, though if BW wanted to return to the educational programme he had been in or wanted to be considered for an alternative to that, he would be supported in that endeavour. 

24. In relation to EW, what emerged at the three child protection conferences was as follows.  At the child protection conference on 8 November 2007, it was noted that, despite EW's erratic attendance at school in the past, a new curriculum had been negotiated with her and that was working well.  However, at the child protection conference on 8 February 2008, it was noted that EW was not going to school.  She had been disruptive in class and had been excluded for a while.  It does not look as if anything positive emerged from that conference about how to get EW back into full time education, though the child protection plan spoke of her school and the educational welfare officer pursuing such educational options as there were.  Finally, at the child protection conference on 24 July 2008, it was reported that EW was still not going to school.  She had been spoken to on a one to one basis, but she was not prepared to return to school.  It was recognised that that could not go on.  The report from her social worker showed that an attempt had been made for EW to see Sarah Roberts, who worked at an educational facility called "Connections", in the hope that she would forge a relationship with EW which might get EW back to school. 

25. I am the first to acknowledge that none of this focused on what would conventionally be regarded as EW's and BW's educational needs, by which I mean what was needed to inform and encourage their cognitive development.  Nor was there any attempt to identify what steps needed to be taken to address what were acknowledged to be BW's learning difficulties, nor to identify what needed to be done to assess whether EW had learning difficulties of her own.  But the practical realities were that EW and BW were not engaging with the educational process at all, and before you can begin to address whether the education which they ought to be receiving was addressing their needs, the important thing was to get them back into full time education.  In any event, what had to be addressed were the causes for their lack of engagement with the educational process, and that could only be addressed along with all the other domains and dimensions which the Framework referred to.  The fact of the matter is that their educational needs could only be expressed in the context of getting them back into full time education, and it is difficult to see how, without looking at what the child protection conferences had to say about all the other domains and dimensions, it can be said that the assessment of their educational needs was deficient. 

26. I believe that a similar analysis can be applied to many of the other passages in Mr Samuels' document which addressed the other domains and dimensions.  Many of EW's and BW's needs could only be expressed in very general terms, and as a result, many of the ways in which those needs were to be met inevitably lacked the precision which one would have liked.  It is true that their needs were not analysed at the time by reference to the domains and dimensions laid down by the Framework, but when one stands back and looks at whether the domains and dimensions were in fact addressed, it is plain that they were.  It may be that there were failings in delivery, i.e. as to what was actually done to implement what the care protection plans said should be done.  After all, it was not until the claim for judicial review was lodged that EW was placed in foster care, and BW was accepted as suitable for semi independent accommodation.  The Council says that that was not because the assessments were deficient.  The issue of the claim happened to coincide with a time of crisis for the family, and although the issue of the claim may have appeared to have been the catalyst for those initiatives, it was not.  That is disputed by Mr Wise, but whatever view is the correct one, this claim focused on the assessments, and although the initial core assessments were plainly deficient, as the Council belatedly accepts, their shortcomings were, in my view, met by what was done thereafter to identify EW's and BW's needs and how they were to be met, given the particular difficulties which EW and BW presented, so as to meet the objectives which the core assessments were intended to achieve. 

27. I turn to the core assessments prepared on 28 January 2009.  Those core assessments were compiled with the domains and dimensions laid down by the Framework in mind.  Since those assessments were completed because of the allegation (which the Council now accepts was well founded) that the original core assessments were deficient, one would have expected that the utmost care would have been taken to ensure that they at least would survive judicial scrutiny.  It is here that the experience of a judge of the Family Division would have been helpful.  Such a judge would have been able to recognise from his or her own experience of core assessments relating to the welfare of children whether these core assessments were of the quality which are conventionally regarded as satisfying the requirements of the Framework.  For my part, I have concluded that they do.  Again, some of EW's and BW's needs are expressed in general terms, but that is because their needs are such that it is difficult to be more precise, and that feeds into such lack of precision as there may have been in identifying precisely how those needs are to be met. 

28. I turn finally to the new claim that the Council has been in breach of its duty under section 20(1) of the Act to provide accommodation for BW as a child in need.  The duty to accommodate a child in need under section 20(1) arises when it appears to the local authority that the child requires accommodation as a result, inter alia, of the person who has been caring for them being prevented, whether or not permanently and for whatever reason, from providing them with suitable accommodation or care. 

29. The Council now accepts, even if it has not done so in the past, that its duty to provide accommodation to BW has been engaged because the flat in which he lives with his mother is not suitable for him.  As it is, BW has now said that which the Council says he has not said before, namely that he is prepared to move into accommodation which is now available for him, pending the accommodation for which he has previously been accepted becoming available.  In these circumstances, Mr Wise realistically does not ask for any order on this part of the case, and it can be put to one side. 

30. For these reasons, I do not think that EW and BW have a sufficiently arguable chance of success on their claims to warrant the grant of permission to proceed with their claim for judicial review.  This application for permission to proceed with the claim must therefore be refused. 

31. That, though, is not quite the end of the matter.  At the same time as the judicial review claim form was amended to allege that the new core assessments were flawed as well, and to allege that the Council was in breach of its duty to provide suitable accommodation for BW, particulars of claim were filed on EW's and BW's behalf alleging negligence on the part of the Council.  Those particulars were filed in the current proceedings.  They amount to a free standing claim because they do not depend on the unlawfulness of the core assessments.  Paragraph 7 of the particulars of claim shows that the allegations go back to 1995.  It is acknowledged that it would be inappropriate for this aspect of the case to be litigated in the Administrative Court, and I therefore direct that this claim be transferred out of the Administrative Court into the normal Queen's Bench Division list. 

32. However, none of the steps which the pre action protocol requires to be taken before proceedings are commenced were taken before the particulars of claim were served, and the action should therefore be stayed for some time to enable the parties to take stock of the allegations of negligence in the light of this judgment, for the parties to decide where they go from here, and for public funding authorities, on the one hand, and insurers, on the other, to be engaged in that process.  In the circumstances, I direct that the claim be stayed for three months from today.  Save for that, I do not propose to give any directions for the future conduct of the case.  The timetables laid down by the Civil Procedure Rules will apply, at any rate for the time being. 

33. MR SAMUELS:  My Lord, I think on my part it only leaves the issue of costs to be determined.  I appreciate that the claim is publicly funded and therefore there are two options if the court is minded to consider costs.  First, on the usual basis not to be enforced without permission.  The other matter I am asked to ask your Lordship to consider is whether there could be a set off against any future damages award in relation to the costs of these proceedings.  So, my Lord, the application is for costs but on those two bases. 

34. MR JUSTICE KEITH:  Thank you. 

35. MR WISE:  On costs, my Lord, it would be unrealistic to make any order for a set off given that at present there is nothing to set any such costs off against and  

36. MR JUSTICE KEITH:  A contingent set off is what is being asked for.

37. MR WISE:  Yes, but of course that is unpredictable and one does not know if that is likely to arise.

38. MR JUSTICE KEITH:  I think what Mr Samuels is saying is that in the event of damages being awarded to your clients, then a set off should apply.

39. MR WISE:  That would be up to the court at that juncture, in our submission, my Lord.  My clients are, as you will see, publicly funded.  The usual order at first instance would be for no order for costs in a case such as this.  Your Lordship will appreciate that my clients are children.  They bring this action through the official solicitor and in those circumstances there should not be any penalty against them for bringing this action.  No costs order should be made which is in vain, as your Lordship is aware, and therefore the appropriate costs order, in our submission, should be no order for costs save for publicly funded assessment.

40. MR JUSTICE KEITH:  You say the usual order as to costs in these circumstances is no order as to costs.  Do you mean that is the usual order in a case in which the unsuccessful litigant is publicly funded, or do you mean that is the usual order in a case in which the unsuccessful litigant is a child assisted by the official solicitor and is publicly funded?

41. MR WISE:  The latter, my Lord.

42. MR JUSTICE KEITH:  I see.  Well, if that is the usual order in this type of case then the last thing I want to do is make an order which contradicts that.  Do you agree that is the usual order in this type of case?

43. MR SAMUELS:  I have never seen, I have to say, that sort of order being the usual order.  If my learned friend can assist as to the reference to it in the White Book.  I have to say, I think it depends on the circumstances.

44. MR JUSTICE KEITH:  Do you have any experience yourself?

45. MR SAMUELS:  I do not have experience myself. 

46. MR JUSTICE KEITH:  Mr Wise, it is an area of the law that you know well.  I see your name in virtually every reported case.

47. MR WISE:  I have to say, it is all subject to the judge's discretion.

48. MR JUSTICE KEITH:  Of course, of course.  But if you say that that is the order that the judge in his discretion usually makes in this class of case, and that is what your experience tells you  

49. MR WISE:  Yes.

50. MR JUSTICE KEITH:     and Mr Samuels is not in a position to dispute that, then that is what I shall go along with. 

51. MR WISE:  I am obliged, my Lord.

52. MR JUSTICE KEITH:  In any event, if I had made the order that Mr Samuels had asked for, I would not myself have ordered that there be a contingent set off.  I would have reserved that issue to the trial judge who decides the damages claim, and it is of course still open to the Council, if they lose in the damages claim, to ask the judge to reflect, in such order for costs that he makes, the costs of the proceedings.

53. MR WISE:  Of course, and one understands that.

54. MR SAMUELS:  Can I ask one point.  If that is my Lord's intention it may be that the costs of these proceedings could be reserved to any such proceedings.

55. MR JUSTICE KEITH:  I do not think so.  I do not think so.  I have said what I have said.  It will be on the record and it can be drawn to the attention of the judge who decides the negligence claim, if it ever gets that far.

56. MR SAMUELS:  My Lord, yes.

57. MR WISE:  As your Lordship appreciates, it is usual for courts to make costs order with respect to the discrete aspects of cases and not to reserve costs to a later date, as my learned friend suggests.  But your Lordship has dealt with that. 

58. The other matter is appeal, my Lord.  It is always unattractive to ask a judge for permission to appeal against a judgment they have given.  But nevertheless we do, and for this important reason  

59. MR JUSTICE KEITH:  Yes.

60. MR WISE:  Your Lordship has been referred to a number of cases which have said that the assessments in care planning of needy children, such as my clients, must be done with precision and in such a way that there is clarity as to what their needs are and how those needs are going to be met.  Your Lordship's judgment is not consistent, we would say, with those judgments, albeit that they are first instant judgments and your Lordship of course is not bound by them.  Your Lordship has said in particular in the judgment in the present case that it was sufficient for the local authority to address the dimensions and domains and plainly the latter documents do show that the authority did address their mind to it    in the main, at any rate.  We would contend that the guidance requires local authorities to go further than merely to address these issues but to have very specific assessments of need which result in the detailed plans that both Richards J (as he then was) and Munby J have referred to in the cases.  There is a further issue as well    that of course is of some wider application.  There is a further issue which is of some wider import as well and that is that the contention of the local authority in this case is that a range of documents can cumulatively be considered to meet the demands of the statutory guidance and they have succeeded in that submission.  The public importance of that is that that means that authorities generally will be entitled to have a number of disparate documents    and your Lordship has seen the difficulty in pulling those together even during these proceedings    rather than putting the assessments and care plans all in one document, as we would contend that the statutory guidance envisages.  The implications are very significant so far as other authorities and other children in need are concerned. 

61. So for those two reasons principally, my Lord, I would invite your Lordship to grant permission to appeal.

62. MR JUSTICE KEITH:  Thank you, Mr Wise.  I do not think that the grounds of appeal you have identified are sufficiently arguable to warrant my granting permission to appeal, and you will have to go to the Court of Appeal itself for permission.

63. MR WISE:  Very well, my Lord.

64. MR JUSTICE KEITH:  Thank you both for the help you have given me.