[2024] UKUT 201 (AAC)

I am not persuaded by the local authority’s argument that the section 19 obligations cannot apply to the First-tier Tribunal because they are high-level strategic functions that could not have been intended to apply to the Tribunal. They are not strategic functions. They are obligations which apply to and are designed for the benefit of specific children and young persons.

Nevertheless, this was an appeal brought by a young person. It was Robbie’s appeal. Dealing with his case inevitably involved the Tribunal having regard to his views, wishes and feelings. I do not accept that the Tribunal failed to give adequate reasons for not following his wishes. While the Tribunal did not in terms explain why it would not implement his wishes, it explained why it rejected his case which amounts to the same thing. This ground does not succeed.

The participation and enabling aspects of section 19 did not feature prominently in argument. However, if the First-tier Tribunal discharges its obligations under its procedural rules, including the overriding objective, it will be doing as much as would be required if it were subject to the section 19 obligations.

For the above reasons, by way of general guidance to the First-tier Tribunal I do not see any need for it to complicate its business by expressly seeking to act in accordance with section 19 of the CFA 2014. It should simply act in accordance with the overriding objective and, if it does, will be acting in the spirit of section 19.

My attention has not been drawn to any legislative provision that expressly requires the First-tier Tribunal to take into account, or have regard to, a child’s views (or views, wishes and feelings) about the subject-matter of an appeal. Nevertheless, I am satisfied that such a requirement exists. If the full legislative context is considered, we see that:

As I understand it, the authority argues that, in dealing with L’s parents’ case, the First tier Tribunal of necessity took into account, or had regard to, her views, wishes and feelings. I have found this a difficult point.

On the one hand, it may be said that the authority’s stance reduces the requirement to take into account a child’s views, wishes and feelings to a dead letter. In my experience, at any rate, a child’s views tend to be broadly aligned, and rarely inconsistent, with the parental case. If the requirement to take into account a child’s views etc is satisfied by simply deciding an appeal, the child’s voice may be lost.

On the other hand, is it in a child’s interests for a tribunal’s decision to be set aside where (a) it deals properly with all the relevant issues but the only flaw is that it failed to show that the child’s views, wishes and feelings were taken into account; and (b) had the child’s views been expressly taken into account, the result would have been exactly the same (on the assumption that the child’s views and parental case were aligned)? If the tribunal gave an otherwise sound decision, there must be a real chance that all will be achieved is the same decision on remission to the First-tier Tribunal but only after some months have passed.

However, as I explain below, I need not, in this case, decide whether the local authority’s argument is correct. I will say though that there is a simple way of avoiding the issue recurring, which is for First-tier Tribunal statements of reasons expressly to deal with a child’s views, wishes and feelings. I do not wish to add unnecessarily to the burdens faced by that tribunal but would not expect this to take up too much time. A paragraph or two should normally be sufficient or perhaps even less if there is no mismatch between the child’s views etc and the parental case.

Whatever the reason, it seems to me that if there was inadequate information, the tribunal should have taken steps to obtain it, if necessary adjourning to do so. Tribunals, so it seems to me, cannot proceed on a purely adversarial basis, but have a duty to act inquisitorially when the occasion arises by making sure they have the necessary basic information on which to decide the appeal before them, rather than rely entirely on evidence adduced by the parties. The tribunal will usually have much greater expertise than the parents who appear before them.