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X County Council v DW and Others [2005] EWHC 162 (Fam)

Guidance as to the respective functions of the family court and the Special Educational Needs and Disability Tribunal (‘SENDIST’).

X County Council v DW and Others [2005] EWHC 162 (Fam)

Family Division: Munby J (11 February 2005)

Summary
Guidance as to the respective functions of the family court and the Special Educational Needs and Disability Tribunal ('SENDIST').

Background
This case concerned a 10-year-old boy who was assessed by the local education authority as having special educational needs; the local authority made a statement of special educational needs, identifying a particular special school that he should attend, although his parents disagreed strongly with the assessment and were educating him at home. Further, the judge had made an interim care order which provided for the child to be educated at the named special school.

The judge reviewed the applicable statutory provisions and case-law, and expanded on some observations made during the hearing, with the following aim: to address the concerns of the local authority and the guardian as to the consequences if the boy's parents were to exercise their right of appeal to SENDIST under section 326 of the Education Act 1996, and SENDIST were to exercise its powers under section 327 in such a way as to conflict with the care plan that had been approved.

Key principles
The key principles identified by the judge can be summarised as follows:

(1) Deciding where a child should go to school is an aspect of parental responsibility.

(2) Where the court has made either an interim or a final care order, parental responsibility is shared with the local authority. Ultimately, it is for the local authority and not for the parent to decide where a child in care should go to school, although a parent can exercise the right of appeal to SENDIST.

(3) A parent can decide where a child is to go to school only in the sense of deciding as between two or more schools, each of which is willing to accept the child as a pupil. A parent cannot compel a school to accept a pupil whom the school is, for any reason, unwilling to admit.

(4) Neither a local authority nor the family court is in any better position than a parent to compel a school to accept a pupil. The Family Division, even when exercising its powers under the inherent or wardship jurisdiction, cannot compel an unwilling private organisation to provide a ward of court with education. And any dispute as to whether the education authority is exercising its powers properly raises matters of public law to be determined by reference not to the principles of family law but to the principles of substantive public law applied by the Administrative Court.

(5) In the same way, the Family Division cannot dictate to SENDIST how it is to exercise its statutory jurisdiction in relation to a child who happens to be a ward of court or subject to a care order. The functions of the family court under the Children Act 1989 and of SENDIST under the Education Act 1996 are, by and large, separate and distinct. So far as concerns SENDIST, the matter is regulated by sections 324 and 326 of the Education Act 1996. In contrast, the family court has to apply the principle in section 1(1)(a) of the Children Act 1989 that the child's welfare is the paramount consideration.

(6) Given that the ultimate questions for both the family court and SENDIST are so similar, there is no reason to jump too readily to the conclusion that they will end up coming to different conclusions. If they do, then the resulting problem becomes one of public law, to be resolved by reference not to the principles of family law but to the relevant principles of substantive public law.

(7) The family court cannot dictate to SENDIST how it is to determine an appeal under section 326 of the Education Act 1996. Nor, of course, can SENDIST voluntarily surrender to the family court its statutory obligation to determine such an appeal. But, in practical terms, SENDIST will have to take into account any order made or views expressed by the family court, to avoid the risk of its decision being reviewed by the High Court, either by way of statutory appeal or on an application for judicial review.

(8) However, the Administrative Court cannot strike down a decision of SENDIST, nor will a statutory appeal to the High Court necessarily succeed merely because SENDIST's view as to where and how the child should be educated differs from that of the family court judge.

(9) This means that there may end up being a theoretical impasse, the family court taking one view as to where and how the child should be educated and SENDIST (or the High Court following a statutory appeal or a judicial review) taking another. But, in the light of section 324(5) of the Education Act 1996, this impasse is more theoretical than real.

Read the full text judgment here