JO, R (on the application of) v London Borough of Ealing

The Defendant (‘the Council’) has consulted on new arrangements for some of its children’s services. The Claimant took part in the consultation on the future provision of children’s centres in Ealing. The Claimant’s objection is the vehicle for a challenge to the lawfulness of that consultation, which is supported by many others with a similar interest.

The consultation led to the decision of the Council’s Cabinet on 11th June 2025 to approve the Improved Early Help Offer and Early Help Strategy 2025-2028 (‘the decision’). The Claimant seeks the quashing of the decision, or a declaration that it was unlawful.

“What happens in a child’s earliest years lays the foundations for their lifelong wellbeing. Supporting young children and families during this time is therefore critical for individuals, families, communities, and societies more broadly to thrive and flourish”. These are the opening lines of a report which the Council commissioned to inform its strategy for early years provision. This case is about how to provide that critical support. However, I emphasise at the outset that the court’s role is limited to whether or not the decision was lawful, not its merits.

From the agreed list of issues, the court is to determine:

A key part of the Claimant’s case is the ‘Budget and Medium Term Financial Strategy’ (‘MTFS’) of 12th February 2025. Part of her case is that financial decisions drove the impugned decisions. I will come back to that after considering the earlier chronology from 2023.

The Defendant’s evidence commences prior to the MTFS. A study between June and October 2023 resulted in a report which was published in January 2024 and which highlighted the value of a place-based model for meeting families in places in which they were comfortable. The topic was ‘Integrating early support in Ealing’ and a record of insights from those leading and delivering services to children, young people and families. It is not a document which I have found it easy to summarise because it is a dense slide deck. However, the key points being made were as to provision which more closely related to those parts of the community which were hard to reach, and as to joint working between agencies. These key points were also articulated in a contemporaneous study by the Institute of Development Studies.

The ‘Ealing Childcare Sufficiency Assessment 2023/24’ (“CSA”), was published in March 2024. It identified gaps in provision including as to availability, affordability and geography. This and related work resulted in an ‘Early Help Strategy’ (2025-2028), dated April 2025. The Strategy is not primarily focused on children’s centres, but they do form an element of it. They are referred to within the Strategy in this way:

Helen Harding is Assistant Director of Early Help and Prevention at the Council. On 22nd January 2025, she submitted a report (‘the January report’) and supporting materials to the Cabinet Member for A Fairer Start, Councillor Blacker. His responsibilities include Children’s Services.

The January report started from the premise that there was a need to redesign the Council’s Early Help service to ensure that the most vulnerable residents could access the service, at the earliest opportunity. The report compared London Boroughs by reference to geographical area, population and number of children’s centres. The Council had seven ‘hub’ centres and eighteen ‘link’ centres. The proposal was to reduce the number of children’s centres to 12 alongside the creation of a community outreach strategy to deliver Early Help from community venues such as schools, libraries and places of worship.

The reasons for the decision to consult, as recorded in the January report were to review the Early Help offer and children’s centres and to review how resources are used most efficiently in the context of the MTFS.

Councillor Blacker explained in his witness statement that he was advised by senior officers of the Council that the Early Help and children’s centre provision was failing to reach ‘enough families later appearing at the statutory front door’. There was a need to reach more families and to reach them earlier. Amongst other benefits, this would mitigate the impacts of problems which can and do occur later in a child’s life, and that of the family. Councillor Blacker’s witness statement explains:

The Council approved its MTFS on 12th February 2025. Councillor Blacker’s evidence in this regard is that:

There is a report and there are minutes of the meeting of 12th February 2025. The report includes a recommendation that the Strategic Director be authorised to carry out all necessary steps to implement each of the proposals, including any necessary consultation, following which a proposal may be amended. The report explains the context that the Council must identify ways to reduce expenditure or increase income.

The Strategic Director was also tasked with considering the outcomes of consultation and determining whether to amend the proposal and the need for further reports.

The reasons for the decision of 12th February 2025 are, so far as material:

As I have indicated, the January report resulted in the decision to consult for twelve weeks on proposed changes to the Early Help offer, including the closure of some children’s centres.

There was a consultation document. It rehearsed the points in the Sufficiency Assessment. On financial matters it said:

Clare Welsby provided a detailed witness statement on behalf of the Claimant. Formerly, she worked for the Council’s Children’s Services department. She was closely involved with groups which were formed to respond to the consultation and to campaign against the closure of children’s centres. There was significant opposition, with large numbers of people signing petitions to the Council. She and the campaign groups encouraged parents to respond to the consultation. Requests were made for attendance data. The Claimant’s concerns about the consultation include:

There were detailed criticisms of failures to guide the provision to the locations of greatest need, for example:

Over 2,300 people responded to the consultation. They have been helpfully catalogued and I have read them. They range widely in terms of their detail and their content. Most were strongly opposed to the proposed measures. Ms Welsby summarised the nature of the parents’ concerns:

The Claimant’s father and litigation friend (CJ) has also provided a witness statement. It is clear that children’s centres have been very important to him, his daughter and his partner. The Claimant was eighteen months old at the time that the witness statement was drafted. She benefited from a range of services which ensured she had a good start, regardless of her parents’ financial position. She was taken to the most proximate children’s centre. If that were to close, it would have a significant impact on family life. They provide a trusting environment in which parents feel able to accept assistance. The centres also provide information which is helpful to first-time parents.

On the consultation, CJ said:

CJ shares the concerns about alternatives and explanations as expressed by Ms Welsby.

The evidence and the Claimant’s skeleton argument include forensic analysis of the documents which supported the decision. For example, there were graphs purporting to show comparisons of the Council’s provision in comparison to other London Boroughs. The data for some of the comparator London Boroughs are agreed to be in error. Ms Welsby’s witness statement provides a detailed comparison of provision and contests the Council’s data. However, these points were not pursued strongly in argument. The general point being made remains the same and these materials were a part of a wider body of materials. The suggested legal consequence of those errors was not clear to me.

The consultation ended on 27th April 2025. Towards the end of the consultation period and before the decision, there were meetings: (1) a Scrutiny Panel meeting on 15th April 2025; (2) a presentation to the Labour Group on the proposals, on 19th May 2025; (3) A full Council meeting on 10th June 2025 at which Clare Welsby asked questions, followed by the Council’s Cabinet meeting on 11th June 2025 at which the decision was made. There was also a Scrutiny Committee meeting on 3rd July 2025.

As Ms Welsby explains, as a result of the concerns raised during consultation, the Council confirmed in its cabinet report that it had decided to keep open 3 of the children's centres that were earmarked for closure (Jubilee in Ealing, Petts Hill in Northolt, and Dormers Wells in Southall). This meant that 15 centres would now remain open, with 10 centres (rather than 13) being closed, or de-designated.

The report to Cabinet confirmed that the number of children’s centres would be reduced, but that the consultation results indicated that Jubilee, Petts Hill and Dormers Wells children’s centres should be and would be retained instead of being de-designated. In addition, it would be a strengthened outreach offer:

The section on ‘Financial Impact’ stated:

At the Scrutiny Committee meeting on 3rd July, the chair invited two public speakers to address the Committee. Ms Welsby was one of them. She raised the issues which she explains in detail in her witness statement. Councillor Blacker responded and the Committee asked questions. The Committee recorded its view as:

The Scrutiny Committee upheld the decision of the Council’s Cabinet.

Each of the witness statements contain material which argues the merits of the proposals and the value of children’s services. Perhaps because both parties relied on witness evidence which went further than may properly be admitted in judicial review proceedings, neither party objected. However, I have had regard to only those parts of the evidence which are necessary in order to decide the legal issues.

The purpose and objectives of the Childcare Act 2006 (‘the 2006 Act’) are evident from s.1(1) & (2), which provide for the two-fold objectives of improving well-being and reducing inequality:

By s.1(5), the Secretary of State may produce guidance and local authorities must have regard to it. I turn to the guidance below.

Mr Dunlop KC, who appeared for the Council, submitted that the specific provisions of the 2006 Act are to be read and understood in the context of the overarching purpose of the statute as disclosed by s.1. In my judgment, that should be an uncontentious submission and is consistent with the way in which the 2006 Act is set out because s.3 has the heading ‘Specific duties of local authorities in relation to early childhood services’, and it provides, so far as material:

There is, again, reference to guidance from the Secretary of State in s3(6), to which I turn below.

On 12th January 2010 the 2006 Act was amended by insertion of ss. 5A to 5G. These provisions added to the specific duties under s.3. They introduce ‘children’s centres’ and set out the role of local authorities in respect of this particular means of providing for the well-being of children. S. 5A is particularly relevant in this case because it is the foundation of the second issue via which the Claimant contends that there has been a failure to provide sufficient children’s centres, or at least the Council has not lawfully assessed that provision:

In summary, therefore, s. 5A establishes a statutory scheme for the provision of children’s centres. Children’s centres are places to provide early childhood services. Those services are provided in an integrated manner. Local authorities are to make reasonably practicable arrangements to provide sufficient children’s centres to meet local need.

The s.3 arrangements so far as children’s centres are concerned are to be the subject of consultation. The requirements in that regard are set out in s.5D which provides:

In this regard, I note from R (Breckland DC) v Electoral Commission [2009] PTSR 1611 at [43] that a statute which includes the words “take such steps as they consider sufficient” imports flexibility into consultation requirements. By similar reasoning, “such consultation as they think appropriate” are words which also import flexibility and give a degree of discretion to the Council.

The statutory guidance was published by the Secretary of State in April 2013. The parts of the guidance which are germane to this case include:

The purpose of the 2006 Act, to which I have already referred is further explained by reference to improvement of outcomes and reduction of inequalities:

The role of children’s centres is key and there is reference back to the core purpose:

The local authority’s role in commissioning sufficient children’s centres to meet local need is to be guided by these considerations:

There is guidance on consultation in respect of significant changes to children’s centre provision:

The guidance emphasises the purpose of children’s centres in meeting the objectives of the 2006 Act. Consistent with the definition of well-being in s. 1(2), the guidance addresses physical and mental health and emotional well-being; protection from harm and neglect, education, training and recreation, the contribution made by children to society, and social and economic well-being.

Local authorities are not told how to do this. Rather, they are guided to give effect to the purpose and objective of the scheme, using resources to the best effect having regard to the improvement which can be achieved, and for which families, looking for the best value for money.

Chapter 2 of the Guidance focusses on the outcome of sufficient children’s centres to meet need, particularly to those whose need is greatest. The guidance emphasises accessibility. It also states that local authorities should not close an existing children’s centre unless it can demonstrate that the outcomes for children would not be adversely affected, taking account of views of local families and communities. The guidance says that the starting point should be a presumption against the closure of children’s centres.

The principles in R (Gunning) v Brent London Borough Council (1985) 84 LGR 168 were approved in R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947:

I have been assisted by the summary of the law in R (Clifford) v Secretary of State for Work and Pensions [2025] EWHC 53 (Admin) at [23-26], per Calver J:

I was referred to three first instance cases in which local authorities had been challenged on their compliance with these or related provisions.

In R (L) v Buckinghamshire Country Council [2019] EWHC 1817 (Admin) Andrews J dismissed the claimant’s claim on consultation and sufficiency grounds. The Council in that case was facing a need to make £3.1M of savings in its budget. Andrews J held as follows as to the principles to apply to consultation, at [36, 37 and 40], and which I adopt:

In R (B) v Oxfordshire County Council [2016] EWHC 2419 (Admin) Langstaff J gave judgment in another challenge which originated from a budgetary problem. In that case, the Council set out a “medium term financial plan” (‘MTFP’) which indicated reduction in the amount of money spent on early intervention services for children. Central to the argument before Langstaff J was whether Cabinet regarded the MTFP as a given, rather than as an indicative financial plan, within which there would be some flexibility. He held that there was indeed such flexibility in the budget.

Langstaff J cited with approval the dicta of Kenneth Parker J in R (JG) v Lancashire County Council [2011] EWHC 2295 (Admin) at [50] in which he held that the budget decision was preliminary and made in the knowledge that specific policies in the budget were, for shorthand, a work in progress.

Lastly, in Baird v Environment Agency [2011] EWHC 939 (Admin) Sullivan LJ (sitting at first instance) drew attention to the principal purpose of consultation in drawing attention to those factors which the decision-maker has, or may have, overlooked [40-41]:

Thus, the result of a consultation may assist in deciding whether it was doing the job intended.

The question arising under this issue is ‘was the consultation undertaken at a sufficiently formative stage, or not, i.e. in breach of Gunning 1?’

The Claimant commences her attack by reference to the MTFS: the Strategic Director could amend the funding proposals, but the starting point had been determined.

The Claimant’s case is that the consultation was defective from the start because there was a pre-existing decision to save £750,000 by closing children’s centres. It was also not at its formative stage because some options had been eliminated from consideration. These two flaws made the consultation unfair at the outset.

The Claimant argues that s. 5D(1)c of the 2006 Act is relevant to the budgetary decision because consultation must be undertaken before anything is done which results in closure of a children’s centre.

I start with the text of the 12th February report and recommendation. Both the report and the recommendation refer to proposals and to future consultation. Those proposals are introduced as elements of a requirement to agree a balanced budget with the pressures on the budget being noted and explained. The natural reading of the report and the reasons for the decision is that the elements of the budget remain proposals, not final decisions. This is plain from the recommendation that the Strategic Director be tasked with consultation. There are implications to be worked through. I do not accept that the MTFS determined or limited the options. It was, however, an express part of the context in which the Council was working.

Change to service provision in respect of children’s services, as for many other types of service, is necessarily iterative and has to start somewhere. The fact that there is a process of budgeting for the extensive range of services to be provided is the product of the Council’s budgetary duties and not an indicator that funding is the sole determinant of future provision. Moreover, there is nothing in the report, the reasons nor the supporting detailed budgetary tables which suggests that there was a financial fetter, save that there were overall constraints in balancing the budget. It does not limit alternatives but expressly leaves open the question of alternative approaches.

The budgetary process was not a thing that was done which required prior consultation by reason of s. 5D(1)c of the 2006 Act. This is because ‘the thing’ had not been ‘done’. Rather, it was proposed and was the subject of consultation. The discretion afforded to the Council is wide, as explained by Andrews J in the Buckinghamshire case. Budgetary decisions are likely to be preliminary in nature, as was held in both the Oxfordshire and Lancashire cases. In my judgment, this budgetary decision as made by the Council in this case was not intended to be, and was not, something which went beyond budgeting. It was a compilation of budgetary proposals across the Council’s areas of activity and responsibility. Indeed, it would be surprising if the Council did not undertake this work at the outset, not least because the Council was required to set its fees, charges, council tax and business rates.

It is not correct that the Council’s financial planning impaired the consultations which the Claimant and others participated in. In my judgment, that finding is reinforced by what happened after the consultation, namely that three children’s centres were added back into the proposal, as a result of the analysis which was undertaken of the consultation responses. I accept that is not the extent of change which many objectors were seeking, but it is nevertheless strong evidence that the consultation was conducted on a genuine basis and that the outcome was not pre-determined by the MTFS. The MTFS said that its elements were proposals for consultation and that proved to be the case as a matter of fact.

However, that is not the end of the considerations of the budgetary background. The Claimant’s further contention is that the consultation failed to draw attention to the financial background and so was misleading. I return to this aspect of the case on the second issue.

I now turn to the topic of alternatives, on which the Claimant contends that the consultation was unfair by reason of the absence of alternatives. Less intrusive measures were not consulted upon, some of which were obvious.

I do not accept these arguments because: (1) the consultation questionnaire invited consultees to contribute alternative options. I do not consider that a consultation will generally be unlawful for taking this approach. It is an open invitation to others to take part in the process of settling on solutions to the issues which present themselves; (2) public law objections on the basis of alternatives are inherently fact-sensitive. Those who object to the outcome will usually have a variant to promote. Of itself, the existence of a variant or a wholly different solution to an issue does not indicate illegality. Consultation is an opportunity to communicate to the decision maker. The case law on when discarded options must be included in a consultation, or at least referred to in the consultation documents, pulls in different directions, reflecting the fact that fairness in this context is highly fact-sensitive. In so far as the authorities conflict on issues of principle, the leading authority is Moseley (see Lang J. in R (Possible) v Secretary of State for Transport [2026] Env LR 2 at [129]; (3) a preferred option will often be in play, but that does not make the consultation unlawful providing the consultation materials are not misleading: Sardar v Watford BC [2006] EWHC 1590 (Admin) at [29]. To have a stated preferred option may assist consultees in providing focussed responses on the merits of that preference.

For these reasons, I find that the consultation was undertaken at a sufficiently, and lawfully, formative stage.

Did the Council’s consultation give sufficient reasons to permit of intelligent consideration and response? For the Claimant, Ms Richards submits that it did not. The Claimant contends that there was a failure to explain why any specific children’s centre was selected for retention or closure. The ‘guiding principles’ are not enough because they provide insufficient information or real explanation.

For the Council, Mr Dunlop submits that the second Gunning requirement does not go that far. What is required is to explain which children’s centres would be repurposed and which would not, along with the principles which have guided the proposal which is consulted upon. The principles are the reasons and they are sufficient to enable a lawful consultation.

In my judgment, the sufficiency of the information supplied in the consultation material can best be tested in this case by the nature and the content of the material which the consultation prompted. That material is notable for the quality of its engagement with the same issues which the Council had studied during 2023 when it was formulating its approach to these issues. The results of the consultation provide information to the Council on: (1) the real benefits to parents of particular children’s services and the centres at which they are to be found; (2) the importance, or otherwise, of proximity; (3) whether there is a sense of connection to a location or whether there is some reticence to attend, and why.

I find that the description of the proposal, the related explanation and the reference to the guiding principles to be adequate material on which to consult. I accept Councillor Blacker’s evidence as to the Council’s assessment of a need to change the model of provision in the Borough. That was what the consultation explained. The consultation produced many articulate and intelligent responses which engaged fully with the issues, which in turn prompted material changes in the proposal.

Ms Richards submits that the connection between the guiding principles and the key aspects of the proposal was not discernible. She called this a disjuncture and gave the example of the Jubilee children’s centre, which was the best used of the children’s centres. Three points arise from that submission. First, it is not sufficient to show that there are good reasons to disagree with a part of a scheme which is the subject of consultation in order to establish that the consultation is unlawful. That is to miss the point of consultation, namely to enable consultees to express support or opposition or to add information to be considered, and thus to influence the decision. Second, there was no inhibition in consultees making this point, so the fact that consultees were able to make this point undermines this ground of review. Third, the Jubilee children’s centre was one of the three centres which were re-instated, which tends to illustrate the effectiveness of the consultation as a matter of fact.

In this case, the thrust of the consultation was in respect of a change to the balance of the provision of children’s services with a smaller number of children’s centres and greater outreach. In my judgment, that was clearly and sufficiently explained in the consultation document and in the other consultation materials, such as the questionnaire and the materials which were presented at consultation meetings. That information enabled reasons to be given by consultees to explain why the proposal should be varied. It enabled the provision of more information, i.e. evidence, for the Council to consider in preparing the next iteration of its proposals. The consultation produced a two-way flow of information, which is the essence of the process. This is consistent with Sullivan L.J.’s characterisation of consultation in Baird (see paragraph 54 above). I do not find there to have been any material inhibition to that process taking place which would offend the second Gunning requirement.

The objectives of the consultation and the underlying proposals need to be borne in mind. Part of the objective was to learn the views of those who were affected, positively or negatively, by that part of the proposal which was local to them. Part of the process of consultation was concerned with the interaction between children’s centres and outreach programmes. A further part of the consultation, and a perspective to be addressed, was concerned with the overarching approach as a solution for provision of these services across the Borough. However, there is only one consultation for all potential consultees and it is therefore important that any critical analysis of the consultation keeps these different perspectives in mind. Not everybody had Ms Welsby’s expertise and background. I moderate the weight which I have given to her evidence and criticisms accordingly.

The consultation did not proceed from a starting point of the need for saving money. It explained its approach by references to the nature of the issues in the Borough and the way that officers considered that they would be most effectively addressed. However, I do not accept that the financial considerations were in some way hidden from consultees. As I set out at paragraph 63, there was reference to costs and efficiencies within the consultation document. The Council’s aim, as recorded in the financial impact section in the report to the Cabinet meeting at which the decision was made, was to create a strong and improved Early Help offer. This would produce better outcomes. In turn, this would avoid more costly social care intervention, avoiding future demand and costs. In my judgment, there was no legal defect in the consultation in this regard and the consultation, and the decision are factually aligned.

I do not find the consultation to have been unfair. In my judgment, there was compliance with s. 5D of the 2006 Act. It requires that the consultation which the Council thinks appropriate, having regard to the guidance, should be carried out. I consider that the consultation was consistent with the statutory scheme, both as to children’s centres and as to the objectives of the 2006 Act which are more generally stated in ss. 1 and 3.

Therefore Ground 1 does not succeed.

Ms Richards particularly emphasised the guidance not to close a children’s centre unless it can be demonstrated that outcomes for children would not be adverse and that there would be sufficient centres to meet local needs. The starting point is a presumption against closure (paragraph 43 above).

This aspect of the guidance is directive and positively drafted and Ms Richards was right to emphasise it. It is against this background that she submits that the evidence to meet this guidance was not produced by the Council and so there are gaps which make the decision irrational. She submits that the matters in ss. 1 and 3 of the 2006 Act are mandatory considerations, namely to identify need and to meet it. The Council has not related the data on need to the provision which it proposes, she submits.

I agree that the Council was to have regard to the purposes within ss. 1 and 3 of the 2006 Act. I find that it is clear from material which preceded the proposal that the Council was addressing its mind to how to achieve those purposes. It is similarly clear from the consultation documents and from the reasons given for the decision, which include the reasons given in the report to Cabinet. I refer to the background to the decision which I have sought to summarise above at paragraphs 5 to 31, and what follows below is to be read in that full context.

First, the Council obtained evidence of the value of a place-based model for meeting families in places in which they were comfortable. Some parts of the community are hard to reach. The Council was directing its mind to how to address the purposes of the 2006 Act for those parts of the community. This was backed up by the CSA; the sufficiency assessment which identified gaps in availability, affordability and geography.

Second, these points were taken forward in the January report and the need for redesign. This resulted in a combined consultation on Early Years Help generally, and children’s centres specifically. I have accepted Councillor Blacker’s evidence as to the Council’s assessment of a need to change the model in the Borough in order to deliver what was actually needed.

Thirdly, the decision is more than a decision on children’s centres. It is expressly concerned with a combination of children’s centre provision and other modes of meeting the purposes of the 2006 Act, and strengthened outreach.

As I have set out at paragraph 34 above, the specific duties are to be read consistently with the general duties. The reason that sufficient children’s centres are required is to ensure that purposes of the 2006 Act are met. The two cannot be divorced. The Council’s proposal was based, in part, on a different form of engagement with parents and parents in particular circumstances. That part of the proposal evidently had an impact on local needs for children’s centres, which impact could go either way (increase in number of children’s centres or decrease).

As Andrews J addressed the matter in Buckinghamshire at [58], it is a matter for the Council to assess and decide what would be sufficient provision of children’s centres to meet local needs, subject to public law principles. Neither the 2006 Act nor the guidance specify a methodology, but it was sensible for the Council to have one consultation on the proposed revision of its overall Early Help Strategy, of which children’s centres were one important component.

It is an assessment which entails weighing of many factors, from the geographical to the demographic, building in experience of operation and what is reasonably practicable. Financial considerations are relevant, as is acknowledged by the guidance’s reference to value. The Claimant has identified no obvious logical error nor mistake of fact which would permit this court to intervene. There are no gaps in the analysis, and the outcome is one which, in my judgment, is plainly open to the Council having regard to the purposes of the 2006 Act, its associated guidance and the combination of means which the Council identified as the solution which it wished to adopt. There were undoubtedly other solutions which would also be lawful and which some people would prefer, however that is not territory into which this court may venture.

Therefore Grounds 2 and 4 do not succeed.

The claim is dismissed.

I am grateful to all counsel and their instructing solicitors for their preparation of the materials and arguments in this case.