Sort

• 01 Nov 2024

• No

  Complex

  No. The ETW and any Family Court proceedings are separate and distinct.

  However, where decisions of the Family Court amount to a change in circumstances that may lead the LA to undertake a review. Such a review would then have to consider the updated position in light of any relevant conclusions arrived at by the Court.

  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 para 20. As the ETW has a broadly analogous statutory jurisdiction in Wales Nodi thinks it likely that a similar approach would apply here.

  It would appear equally likely that the Family Court does not have any power to prevent parents from accessing the ETW. The Court of Appeal found that 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 para 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 para 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 in respect of both the English and Welsh regime.

  Nodi glossary:  Education Tribunal Wales

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

0 This is helpful

|

Comment

Post