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Public Interest Lawyers, Preliminary Legal Assessment

A PLAYLINK Briefing Note, 28 June 2005

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"Of course there is some risk of accidents arising from the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone."
Lord Scott in Tomlinson v Congleton Borough Council [2004]

A preliminary legal assessment by Public Interest Lawyers (PIL) this week confirms that PLAYLINK's play policy combined with the Play Safety Forum's Managing Risk in Play Provision Statement and proper risk assessment provides:

'a robust, explicit framework for organisations to demonstrate that they have acted reasonably in offering children acceptable levels of risk in their provision for play, whether in designated play space or shared public space.'

PLAYLINK not for profit commissioned PIL to make a preliminary legal assessment of PLAYLINK's play policy. The aim was to test whether the policy, combined with the Play Safety Forum statement, provided the robust framework referred to above.

PIL drew attention to two recent judgements in particular that create a supportive legal context for authorities committed to meeting children and young people's play wants and needs.

The Law Lords judgment in Tomlinson v Congleton Borough Council [2004] 1 AC 46, supports PLAYLINK's philosophy as far as tort is concerned and the Administrative Court's judgment in Hampstead Heath Swimming Club & Another v Corporation of London and another [2005] EWHC 713 backs up PLAYLINK's approach in respect of relevant Health and Safety legislation.

PIL suggested minor revisions to the play policy which will be incorporated into PLAYLINK's play policy.

Next steps

PLAYLINK not for profit believes that it will be useful to seek authoritative Counsel's opinion on the play policy and linked documents. It will be discussing how best to proceed with other organisations and authorities.

Our view is that play providers and regulators at all levels need to understand the necessary relationship between risk and play. They must take measures to counter the tendency to engage in a negative, defensive health and safety practice that unreasonably curtails children's and young people's play opportunities and, in so doing, limits their enjoyment and causes potentially damaging consequences for their development. Too many authorities appear to believe that imposing a "grey and dull safety regime" is the best they can do for children.

Lottery and other funding for play: play strategies and policies

Local authorities and other play providers need to develop comprehensive play strategies underpinned by play policies that address key issues. These issues include, but are not limited to: assessing and managing risk; play environments; planning gain agreements; play in both designated play space and shared public space. (See http://www.playlink.org.uk/methods/play_policy.php)

Notes

1. Public Interest Lawyers are a law firm established to provide specialist and quality service on matters of public interest, human rights, environmental, planning and peace law issues.

2. The Play Safety Forum's statement forms part of PLAYLINK's play policy. PLAYLINK works with local authorities and others to develop and adopt play policies that incorporate the Play Safety Statement.

3. PLAYLINK insists that its play policy should not be 'cherry picked' for useful points and phrases. We take the view, borne out by experience, that authorities need to undertake a process of policy and strategy development that engages with all interests that have, or should have, an impact on children's play. PLAYLINK's experience has been that Health and Safety Officers, Planning, and other non-play specific interests have a major impact on the quality of play environments and what children can do in them.

Useful quotes

1. The Tomlinson v Congleton Borough Council [2004] 1 AC 46 case suggests that 'proper risk assessment' would need to consider '...not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures' and that 'even though an injury is foreseeable...it is still in all the circumstances reasonable to do nothing about it.' Lord Hoffman Paras. Nos. 34 & 37 in the case cited.

2. 'A robust, explicit framework for organisations to demonstrate that they have acted reasonably in offering children acceptable levels of risk in their provision for play, whether in designated play space or shared public space.' Quoted from PLAYLINK not for profit's brief to Public Interest Lawyers.

3. 'But the fact that Council's safety officers thought that the work was necessary does not show that there was a legal duty to do it'. Lord Hoffman in Tomlinson v Congleton Borough Council [2004] 1 AC 46

4. 'But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualistic values of the common law'. Lord Hoffman in Tomlinson v Congleton Borough Council [2004] 1 AC 46

5. For more about PLAYLINK see http://www.playlink.org.uk.