Children take fight for nursery to court: Friends aged three and four are to bring an action under the 1989 Children Act. Lynn Eaton reports

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TWO CHILDREN could make legal history in a High Court case to fight the closure of their nursery.

Chantelle Butler, four, and Wayne Hurloll, three, will be the youngest children to bring an action under the 1989 Children Act.

They argue that their local council is in breach of Part III of the Act, which includes a responsibility on the council to consult them before closing the nursery. Although the cases are in their name, the action is being brought through their parents.

Lawyers are taking Chantelle's and Wayne's cases to a judicial review in October against Barnet council in north London, which runs the Kingswood nursery in Finchley.

Parents were told of the proposed closure of the nursery, run by the social services department for children with special needs, in January. The Conservative-controlled council said the children would be moved to other nurseries.

The announcement left Chantelle and Wayne facing a move to less pleasant surroundings than Kingswood, a rambling Edwardian house. Susan Eskinazi, the children's solicitor, said: 'They obviously want the site. It's a lovely large detached house in substantial grounds.'

For the 34 children attending Kingswood, it was ideal, she said: 'The majority of them come from council estates. It's wonderful for them to get off those estates.'

Chantelle, who suffers from a rare muscle-wasting disease known as Charcot-Marie-Tooth disorder, came to the nursery two years ago when her mother, Linda, had a stroke. Chantelle has a tumour on her face and a twisted spine and can only walk on tiptoe.

Mrs Butler said: 'I was unable to walk or do anything for myself. I've had to rely on them and they have become very important to me. The nursery became Chantelle's mother. It's in a nice area. It takes the kids away from their usual environment. To put these children back into that environment is so wrong.'

Wayne is hyperactive and lives on the 14th floor of a tower block. His mother, Heather Lang, is a single parent and has also come to rely on Kingswood. She said it would be disastrous if the nursery closed. 'It's like a home from home. It's a relief to have the children go there.'

The parents claim Conservative councillors first decided to close the nursery in June last year in a party group meeting. They say they were not properly consulted; their children's needs were not taken into account in line with the Children Act; and the council's complaints procedure was not followed properly. They also allege the council was acting beyond its powers in making the decision on cost grounds alone.

After parents threatened to take out an injunction, Barnet council agreed last month to wait until after the court case before moving any children from the nursery or trying to sell it. The council told the High Court no decision had been made to close the nursery.

But according to the parents, Kingswood's closure was agreed in February as part of a detailed cuts proposal put to the social services committee and passed by councillors.

A council press release issued in May stated that Kingswood would close, as decided by the council earlier that year. Yet now, a council spokeswoman says the February decision was to approve budgetary proposals in principle. It did not necessarily mean the proposed closure of Kingswood would happen. The council is now consulting parents on the nursery's future.

Barbara Langstone, chairman of the social services committee, refused to comment, arguing the case was sub judice.

(Photograph omitted)