The Court of Appeal has overturned the decision of Cranston J in R (ET) v (1) Islington LBC and (2) Essex CC  EWHC 3228 (Admin) (summarised here). The case concerned the lawfulness of Islington LBC’s assessment of the risk posed to three children by a sexual offender, MB, who had a relationship with their mother. The assessment stated that the conclusions were based upon trusted information obtained from the police and probation services. In this respect there was a significant difference between what DS Watson told the local authority in September 2012 and in October 2012. Cranston J dismissed the application for judicial review, finding that the assessment carried out by the local authority was lawful.
The Court of Appeal disagreed. Black LJ (with whom Thorpe LJ and Longmore LJ agreed) stated (at para 40): "I consider that the approach taken by the local authority to DS Watson's contributions was sufficiently flawed to render the assessment unlawful. The local authority did not ask themselves the right questions including whether DS Watson's more recent view of risk was reliable and what the risk to these particular children from MB really was."
In the course of his judgment at first instance Cranston J remarked that the intensity of Wednesbury review is "heightened under the Children Act 1989 in circumstances like the present, where the consequence of the council falling into error is the possible sexual abuse of children and young people" (at para 26).
The respondent’s notice filed by Islington LBC argued that the judge should have taken a conventional Wednesbury approach. Unfortunately, there was insufficient time for the Court of Appeal to hear argument on this point. Black LJ stated that "My own consideration of the case has been shaped by ordinary Wednesbury principles and I have no doubt that the problems over DS Watson's contribution to the assessment are such as to cause the assessment process to fail the ordinary Wednesbury test" (at para.48).
The Court of Appeal’s judgment in this case confirms that where a local authority receives information from external agencies, it must properly analyse that information before relying upon it in performance of its statutory duties. It is regrettable that the Court of Appeal did not hear argument on the intensity of review to be carried out by the court in such cases. The answer to that question continues to await authoritative determination.