Law Report: Foster parent can appeal over school needs

LAW REPORT v 25 July 1996
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F v Humberside County Council; Queen's Bench Division (Mr Justice Laws) 16 July 1996

A foster parent, with whom a child had been placed by the local authority exercising parental responsibility, was a "parent" for the purposes of section 169 of the Education Act 1993 so as to enable her to appeal against the authority's refusal, as the local educational authority, to make a statement of the child's special educational needs.

Mr Justice Laws ruled in favour of the appellant, a foster parent employed by Humberside County Council, on a preliminary issue in relation to her appeal against a decision of the Special Educational Needs Tribunal on 26 April 1995.

Paul Greany (Langleys, York) for the appellant; Roger McCarthy QC (County Solicitor) for the council.

Mr Justice Laws said the child, D, born in April 1988, had been placed with the appellant by the council, in whose favour a care order in relation to D had been made under section 31 of the Children Act 1989. The appellant had looked after him since December 1989.

Unfortunately D suffered from defective vision, learning difficulties and communication problems. But after carrying out an assessment and obtaining experts' reports, the council decided not to make a statutory statement of D's special educational needs under section 168 of the Education Act 1993. That decision was confirmed in a letter dated 25 November 1994.

The appellant appealed to the tribunal under section 169(2) of the 1993 Act, by which: "In such a case, the child's parent may appeal to the tribunal against the decision."

The tribunal held that D had special educational needs but they could be sufficiently provided for at his present school. It dismissed the appeal and the appellant appealed to the High Court under the Tribunals and Inquiries Act 1992.

The council now submitted that the appellant had had no legal right to appeal to the tribunal because she was not a "parent" as defined for the purposes of the Education Act 1993. She therefore had no right to appeal to the High Court either, since such an appeal might only be brought, under section 11(1) of the Tribunals and Inquiries Act, by a "party" to the tribunal proceedings, and a "party" must mean one having proper locus standi.

The definition of "parent" had come into the Education Act 1993 by a somewhat circuitous route. Section 114(1D) of the Education Act 1944, as inserted by paragraph 10 of Schedule 13 to the Children Act 1989, provided:

In this Act, unless the context otherwise requires, "parent" in relation to a child or young person, includes any person (a) who is not a parent of his but who has parental responsibility for him, or (b) who has care of him . . .

That definition was incorporated into the Education Act 1993 by section 305(3), which provided that the 1993 Act was to construed as one with the 1944 Act.

It was accepted for the council that the appellant plainly had care of D. But it was argued that the words "unless the context otherwise requires" meant that where there existed a person, be it the local authority or a natural parent, who was actively exercising parental responsibility, it was inappropriate for section 114(1D) to apply to some other person, such as a foster parent, who simply had care of the child.

In his Lordship's judgment, the expression "unless the context otherwise requires" naturally referred to a statutory context in which the word "parent" appeared: if the terms of any provision containing the word "parent" were such that, as a matter of language and general sense, the word must bear a meaning different from that prescribed in section 114(1D), then pro tanto the statutory definition was disapplied.

In the context of section 169 of the 1993 Act, while it was obviously not intended to apply to a nanny or baby-sitter, the definition must apply to someone involved in the full time care of the child on a settled basis.

As regards a local authority having parental responsibility, it was by no means obvious, that where the authority disagreed with the foster parent about a matter touching the child's education, it was undesirable for the foster parent to be allowed to test the issue before the tribunal. Otherwise, the only proper appellant to the tribunal would be the authority itself, against its own decision.

For these and other reasons, his Lordship concluded that the appellant was indeed a "parent" enjoying the right of appeal to the tribunal.