12.23 Does the FTT decision dictate to the family courts and vice versa?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022
Watched by 1

Answer Now

A: SenseCheck

  • 0 Yes
  • 1 No
  • 0 Other


  • 14 Feb 2022
  • No


    No. The Family Division exercising its powers under the Children Act 1989 could not dictate to the FTT how it was to exercise its statutory jurisdiction under CFA2014 in relation to a child who happened to be subject to a care order. The family court was no more bound in practical terms by a decision of the FTT than was a parent and if the family court was able to make other “suitable arrangements” for the child's education then the family court was not obliged to agree that the child be sent to the school identified in the EHCP: X CC v DW, PW and SW [2005] EWHC 162#20

    A family proceedings court did not have the power to make an order under the Children Act 1989 s91(14) to prevent a mother from applying to the FTT without permission from the family court for the further assessment of the educational needs of her son who was in care. Re: M (a child) [2007] EWCA Civ 1550#19.

    Even though her child (being M in the case above) was in care, MG could still appeal to the SENDIST against the Statement of Special Educational Needs made for him by the LA. And, where the SENDIST directed that the LA make him available for assessment, the LA (having not challenged the legality of that direction) was obliged to do so – it had no residual discretion to decide not to obey the direction in the light of its view that further assessment was “abusive” (of which, as it happened, it offered no evidence) MG v Tower Hamlets [2008] EWHC 1577#66-68.

    In Bedfordshire CC v Haslam and others [2008] EWHC 1070, the child’s parents wanted him to attend a residential special school. The LA wanted him to attend a day special school which (because his parents were no longer able to look after him) he could only do so if accommodated by the LA. The parents sought to exercise a power of veto in Children Act 1989 s20(7) over the accommodation, thus blocking the LA’s preference. The SENDIST acceded to that. The Court ducked the issue, which thus remains to be decided. [But note that the FTT did not grapple with the question of whether the fact that his educational needs could only be met where the school was combined with residential provision meant that the latter was providing education; nor was the point taken on appeal.]

    Go to Glossary

    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister