Law Report: Closure of day nursery was lawful 17 November 1993 Regina v Barnet London Borough Council, Ex parte B and others. Queen's Bench Division (Mr Justice Auld) 15 November 1993.

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The weight to be given to financial constraints when a local authority considered, under the Children Act 1989, the appropriate range and level of day care services for children in need in its area was a matter for the authority's judgement and experience and one on which the court would rarely be competent to intervene.

Mr Justice Auld dismissed applications by six children for judicial review of the council's decision to close Kingswood Day Nursery. The council provided the nursery pursuant to its responsibilities under sections 17 and 18 of the Children Act 1989 to provide day care to young children in need. The nursery accommodated about 50 children, including the applicants. The council, in a January 1993 internal report recommended the nursery's closure. In June 1992, the council began its review of day care provision pursuant to its duty under section 19. In its December 1992 draft report, it did not recommend closure.

However, in March 1993, the council proposed to close the nursery for financial and other reasons. It decided to reduce its capacity pending a decision. The parents were informed. Following five weeks of consultation between July and September 1993, when there were only 11 children attending the nursery, the council decided to close the nursery.

Jane Hoyal and Tracey Bloom (Simons Levine & Co) for the applicants; Roger McCarthy (Borough Solicitor) for the council.

MR JUSTICE AULD said that the question was whether the consultation exercise in the summer of 1993 was genuine and fair. The council was willing to reconsider its proposal and to give the applicants an adequate opportunity to make representations about it. There was no basis on which this was not a genuine consultation exercise by the council and it was not properly open to the applicants, having willingly participated in it, to maintain that it was all a charade because of what had gone before. As to whether the council, in deciding to close the nursery, was in breach of any general duty under sections 17 and 18, the council was not required to consider the individual circumstances or views of each child and/or his family. The council owed a general duty under section 17 to promote the welfare of the children in need in its area. Whether it fulfilled that general duty, in particular by the provision under section 18 of appropriate day care for such children, could not be tested on a child by child basis. There would be instances where the overall provision was appropriate yet not ideal for certain children.

The particular circumstances of any individual child must therefore be looked at in the context of the general 'range and level of services' provided. It was essentially a matter for the local authority, not the court, to decide what consideration and what weight should be given to the circumstances of any individual child or children when his or their needs might conflict with the appropriate provision overall.

The weight which a local authority should give to the general circumstances of children in need for which it must provide day care, when balancing them against its financial and budgetary contraints, must also be a matter for its judgement and experience. It was a matter on which the court would rarely be competent to intervene on the ground of irrationality. The fact that the decision of a local authority was by majority and as a result of voting largely on party lines would not per se amount to irrationality.

Any breach by the council of its duty under section 19 to review its provision of day care under section 18 did not, of itself, put it in breach of its duty under section 17 and 18 to provide an appropriate range and level of day care. Even if the applicants had made out a case for judicial review, no relief would have been granted because section 26(3) provided a remedy. There was no reason why the applicants should not have pursued their statutory remedy. The applications were dismissed.