M (A Child), Re

Factual and Procedural Background

The mother has two children, the elder aged 13 and the younger aged 11. Full care orders were made in December 1999 placing the children in the care of the London Borough of Tower Hamlets. In May 2001, the local authority returned the children to live with their mother, where they remained until June 2005 when they ran away and were again placed in foster care by the local authority. Both children have educational difficulties and are subject to statements of special educational needs. The mother disagrees with these statements and, in relation to the younger child, commenced an appeal to the Special Educational Needs and Disability Tribunal (SENDIST) in March 2007, instructing solicitors and independent experts to assess the child’s needs.

The local authority opposed further assessments before a scheduled family hearing in April 2007, citing previous assessments and concerns about the child’s welfare. At the hearing before Mr Recorder McCarthy QC, applications relating to discharge of care orders, contact, and further assessments were considered. The Recorder rejected the discharge application and contact requests, expressed concerns about the mother’s approach to education, and imposed restrictions under section 91(14) of the Children Act 1989 on applications for further assessments without court permission. The mother appealed the restriction order.

Legal Issues Presented

1. Whether the family court had jurisdiction to impose restrictions under section 91(14) of the Children Act 1989 on applications for further expert assessments of the child’s educational needs in connection with an appeal to SENDIST.
2. Whether it was appropriate to make an order restricting the mother from making applications that were effectively precluded by section 9(1) of the Children Act 1989, which prohibits certain orders in respect of children in care.

Arguments of the Parties

Appellant's Arguments

• The mother argued that the section 91(14) order restricting applications for further assessments was inappropriate because she had not made any application to the family court for such assessments.
• She contended that, under section 9(1) of the Children Act 1989, the court could not make a section 8 order (except a residence order) for a child in care, and thus it was improper to restrict applications that she was not entitled to make.

Respondent's Arguments

• The local authority submitted that the section 91(14) direction had some "belt and braces" value, as it restricted applications even if section 9(1) did not expressly prevent the making of applications, only the granting of orders.
• The local authority argued that the restriction was justified to protect the child’s welfare and avoid unnecessary assessments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the scope and purpose of section 91(14) of the Children Act 1989, which allows the court to restrict applications for orders under the Act without leave. It noted that the mother had not made any application for further assessments to the family court, only a letter requesting assessments from the local authority. The court emphasized that section 9(1) of the Children Act prohibits the making of section 8 orders (other than residence orders) for children in care, effectively precluding such applications from being successful.

The court found that making a section 91(14) order restricting applications that the mother was not entitled to make was inappropriate. It held that the family court does not have the power to restrict assessments themselves, only to restrict applications for orders. Moreover, there was no history of improper applications by the mother justifying such a restriction. The court expressed concern that the order might misleadingly suggest the family court had power to restrict assessments directly, which it does not.

The court therefore concluded that the restriction order under section 91(14) was not properly made and should be set aside. It declined to address wider issues concerning the jurisdiction of SENDIST or the interplay between family court and SENDIST proceedings, noting those raise a broader canvas beyond the narrow issue before it.

Holding and Implications

The court ALLOWED THE APPEAL and set aside paragraph 6 of the order dated 20 April 2007, which imposed restrictions under section 91(14) of the Children Act 1989 on the mother’s ability to apply for further assessments of the child’s educational needs without court permission.

The direct effect is that the mother is no longer subject to the court-imposed hurdle restricting applications for further assessments under the Children Act. The court did not establish any new precedent regarding the broader jurisdictional issues between family courts and SENDIST, leaving those matters open for future consideration. The decision clarifies that the family court cannot restrict applications that are barred by statute and cannot restrict assessments themselves, only applications for orders under the Children Act.