About this case:

• Citation:
  [2023] NIKB 91
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

Delivering the judgment, Mr Justice David Scoffield highlighted that the decision to remove funding was based on a rational and lawful approach by the trust, which considered the welfare of the children as well as professional opinions.

Background

The applicants here were a mother and her two children, C1 and C2, who were aged six and three years old respectively. They sought to challenge a decision of the Southern Health and Social Care Trust to cease funding the provision of day care for C1 and C2 from September 2022.

The two minor applicants were ‘children in need’ according to the Children (Northern Ireland) Order 1995. There had been domestic violence at the hands of the children’s father, which resulted in the children being placed on the child protection register (CPR) since 2018.

The family moved from their home in Newry to a new area, on the advice of the trust, to distance the family from the father and so that he would not be aware of where they lived. As part of this move, the trust determined that, in order to safeguard and promote the children’s welfare, they should be provided with additional services, including day care at Nursery A.

This was provided twice a week, but in June 2022 a case conference decision was made to stop funding the day care provision. The trust believed that the children’s social needs would be met at pre-school in the case of C2, and at school in the case of C1.

Challenge to the case conference decision

The applicant completely refuted claims that the removal of funding had been discussed with her in advance. However, a social worker averred that she told the applicant that the day care funding was under review, and claimed that the applicant understood this. The court reviewed a report which noted “this service provision has been reviewed and will end in September 2022”.

A ‘parent copy’ of this report was also allegedly provided to the applicant on the day before the case conference. The court accepted that this was not provided as far in advance of the conference as it ought to have been.

The applicant contended that she was not given a fair opportunity to be heard at the case conference, claiming that she was “spoken over” and that her concerns were irrelevant, as the matter had clearly already been decided. This was denied by the respondent.

Ultimately, the applicants’ case was one of procedural unfairness. The mother claimed that she was taken by surprise about the withdrawal of funding, and that she had no effective opportunity to argue during the case conference, as the decision had already been made. She contended that other professionals should have been consulted, and that the trust applied the wrong test when determining whether or not to withdraw funding.

The respondent claimed that there was adequate engagement with the applicant in advance of, and during, the conference and that, overall, there was no unfairness in the process.

Consideration

This challenge related to the 1995 Order, which, at Article 18(1), imposes a general duty on an authority to provide personal social services for children in need and their families. Article 19 further makes specific provision in relation to the provision of day care.

The court first noted that a parental contribution form is included with a parent invite to a case conference, which provides an opportunity for a parent to make a written contribution. In the present case, the applicant was sent this invitation, but did not return the form.

The court also accepted evidence that the issue of the review of day care was raised during a prior home visit. However, the court was also willing to accept that the applicant may not have appreciated the significance of this at the time.

The trust also highlighted that the applicant could have sought more time to prepare for the conference, or to have brought a solicitor, but made no such requests.

Further, the court did not accept that the applicant was ‘cut off’ from making points during the conference, or that she was removed from the meeting, as her evidence suggested. The court was not satisfied that this occurred in the way in which she alleged, and this reflected on her credibility more generally in the judge’s view.

For these reasons, the judge did not consider that the applicant was unfairly deprived of an opportunity to make representations in relation to the proposal to reduce day care funding. She was aware of the proposal in advance, and had an opportunity, which she took, to make clear her opposition to the proposal.

In relation to the trust’s obligation to consult with professionals involved in the welfare of the children, the court found that this arose here as an obligation to take into account the appropriate information from the various disciplines when making any recommendation in the report, and when making decisions during the case conference.

In this case, the social worker had appropriate involvement with all relevant professionals before compiling her report, which included the recommendation to reduce funding for day care provision.

Finally, in light of the improvement in the boys’ circumstances in a range of ways, the amount of time they had had to settle in their new surroundings, and the additional supports which were available or soon to be made available to them, the court found that it was a rational and lawful decision that it was no longer appropriate to their needs to continue the funded day care.

Conclusion

Ultimately, the court did not accept that there was unfairness or illegality in the manner in which the trust decided to reduce the level of day care funding in this case. The judge accepted that “parents may often be disappointed where the level of support with which they are provided is reduced”.

However, the court did not find any of the applicants’ grounds of judicial review to be made out and, accordingly, dismissed the application.