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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A v London Borough of Enfield  EWHC 567 (Admin) (16 March 2016)
Cite as:  EWHC 567 (Admin), (2016) 19 CCL Rep 236,  ACD 89,  HLR 33,  1 FLR 203,  Fam Law 688
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|LONDON BOROUGH OF ENFIELD
Mr. Michael Paget (instructed by Enfield Council Legal Services) for the Defendant
Hearing dates: 18th February 2016
Crown Copyright ©
Mr Justice Hayden :
"It does not appear that this assertion was based on any assessment of the Claimant's needs but instead is based on the erroneous understanding which has characterised the Defendant's decision-making in this case: that they do not have the power to accommodate 16 and 17 year old children. In any event, it is widely acknowledged that bed and breakfast accommodation is not suitable for 16 and 17 year olds even on an emergency accommodation basis."
The Defendant's approach to its statutory obligations
"He reported that A had been in Bulgaria for 4-5 weeks and that he had funded this holiday. When I explored with him about who was looking after A in Bulgaria, he advised that she was staying on her own and this raised concerns about why he would allow a 16 year old child to travel to a foreign country on her own, however advised she needed respite, hence this arrangement."
"been running away from home due to what she reported as a volatile relationship with her parents. She reported that there had been incidents in the past where there had been physical abuse and on-going emotional abuse."
"information shared by A highlighted concerns around issues surrounding radicalisation even with the limited information we had and the fact that she has travelled to different countries on her own, managed to live in different hotels and claims that self-funding the trips."
"A is an Enfield child who is currently considered high risk due to issues pertaining to radicalisation; she has now returned to Enfield for on-going interventions and case will close."
"We have limited information regarding this young person however she appears quite vulnerable."
"Ground 1: The Defendant has undertaken a lawful s.17 assessment;
The conclusions of the Defendant are not irrational or Wednesbury unreasonable. It considered the evidence and made an evaluative judgement that the Claimant's family home was available to her and so she did not appear to require accommodation. That judgment is consistent with the Defendant's understanding that the Claimant has been living at the family home on weekdays;
The Defendant did not conclude that the Claimant had been excluded from her family home and so the guidance from Baroness Hale about sofa-surfing being a child-in-need does not apply.
It is accepted that the Claimant is vulnerable to radicalisation and is being monitored by counter-terrorism police but that has no impact on the Defendant decision that the family home is available to her."
"I have been tasked with a Children and Family Assessment for [A] and her siblings and would like to visit you at home to discuss further.
We are naturally concerned about [A's] welfare and in line with the regulations under the Children's Act 1989 we need to complete a Children and Family Assessment.
I would like to arrange a visit to see you within the next 48 hours and would be grateful if you could contact me on the above details to arrange this."
"13 May 2015- Claimant is living with her former partner in Bethnal Green ;"
22 May 2015- [Children's Services to FAST Social Worker]" I can see you have been working hard to resolve her housing need";
22 May 2015- Claimant seeks to stay in a Women's Refuge but does not meet criteria: she is refused a number of FAST providers; she is staying at the home of her ex-fiancés;
1 June 2015- the FAST Social Worker comments that A "is still homeless and reliant on others".
1 June 2015, the Defendant wrote to the Claimant's parents stating that "Enfield Children Services are unable to provide any further assistance at this stage…I hope that C is returned home safe and well."
2 June 2015- file note from Children's Services: "I can not see how Children's Services would be able to offer any further assistance that the FAST team is not already doing. She is adamant she does not want to be placed in a foster care home and I advised her that this Department do not place children in independent accommodation, this would fall under the Southwark judgment which I understand it is what FAST do."
i) 'Counter-terrorism command Channel had identified an intervention provider who support C on a one to one basis, C met with this person and then refused to engage';
ii) 'C presented at the Family Accommodation Support Team on 04.12.14 for help as she stated she was homeless and could not return to her parents house';
iii) 'Based on the limited information I have I do not believe C to be a child at risk. She is a high educational achiever who has a clear educational pathway in place. She has not reported health concerns and remains physically fit and well. Therefore her basic needs can adequately be met by Universal services which she is more than capable of accessing'.
iv) 'In respect of housing needs it is my understanding that under the Southwark judgment if a young person does not have additional needs other than housing then housing providers should be sought. Again numerous efforts have been made to access semi independent accommodation however they have all concluded that C poses too much of a risk because of information that I am not at liberty to disclose in this assessment'
v) 'C's mother has been very clear she would be prepared to have C come home and therefore given the fact that the department has no concerns in respect of this family I can see no reason why C should not return home'.
THE STATUTORY FRAMEWORK
"(10)For the purposes of this Part a child shall be taken to be in need if—
(a)he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b)his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c)he is disabled,
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
"17 Provision of services for children in need, their families and others.
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(4)The [appropriate national authority] may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there.
(4A)Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a)ascertain the child's wishes and feelings regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
20 "Provision of accommodation for children: general.
(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a)there being no person who has parental responsibility for him;
(b)his being lost or having been abandoned; or
(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(4)A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.
(6)Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a)ascertain the child's wishes [F1and feelings] regarding the provision of accommodation; and
(b)give due consideration (having regard to his age and understanding) to such wishes [F1and feelings] of the child as they have been able to ascertain."
"Approaches and referrals to children's services."
2.15 Where a 16 or 17 year old seeks help from local authority children's services or is referred to children's services by some other person or agency (including housing services) as appearing to be homeless or at risk of homelessness, or they are an 6
unaccompanied asylum seeker without a parent or guardian with responsibility for their care, then children's services must assess whether the young person is a child in need, and determine whether any duty is owed under section 20 of the 1989 Act to provide the young person with accommodation.
2.16 Where a 16 or 17 year old seeks help or is referred, and it appears he or she has nowhere safe to stay that night, then children's services must secure suitable emergency accommodation for them. This will mean that the young person will become looked after (under section 20 (1)) whilst their needs, including their need for continuing accommodation and support, are further assessed. Bed and breakfast accommodation is not considered suitable for 16 and 17 year olds even on an emergency accommodation basis. Where the young person is accommodated under section 20 they will not be eligible for welfare benefits, including housing benefit2 and children's services will have a duty to maintain them (including meeting the cost of accommodation)."
"Para 28…(5) Is that need the result of: …:(c) the person who has been caring for him being prevented from providing him with suitable accommodation or care? As Lord Hope pointed out in the Barnet case  2 AC 208, (c) has to be given a wide construction, if children are not to suffer for the shortcomings of their parents or carers."
"26 In my view, the intensity of Wednesbury review is also heightened under the Children Act 1989 in circumstances like the present, where the consequences of the council falling into error is the possible sexual abuse of children and young people. The profundity of the impact, to use that phrase, is equivalent, indeed potentially greater, than in community care cases such as R(KM) v Cambridgeshire County Council . In my view, a notion of heightened review does not undermine the Wednesbury test. The court is simply saying that the public authority must exercise its discretion with a due appreciation of its responsibilities. In effect, given the context, the public authority must tread more carefully than usual. Heightened review calibrates Wednesbury unreasonableness to the matter at issue."
" 32. I am fortified in my view that section 17 imposes a duty in respect of the individual child by noting the consequences of the alternative approach. On the local authorities' approach, since section 17(1) does not impose a duty in relation to an individual child, it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1). That cannot be right. That would go far to stultify the whole purpose of Part III of the Children Act 1989. The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need. Failure to carry out this duty may attract a mandatory order in an appropriate case, as occurred in R (on the application of AB and SB) v Nottinghamshire County Council  EWHC Admin 235 (2001) 4 CCLR 295. Richards J ordered a local authority to carry out a full assessment of a child's needs in accordance with the guidance given by the Secretary of State in 'Framework for the Assessment of Children in Need and their Families' (March 2000).
33. Where does such an assessment lead? According to the local authorities, nowhere as a matter of legal obligation, so far as an individual child is concerned beyond, presumably, an obligation on the part of the authority to consider the assessment and decide whether to exercise any of its statutory powers. That would be a surprisingly weak outcome. That would represent a lacuna in the law relating to children in need. I cannot think Parliament intended this should be so. I prefer a different approach. If section 17(1) is apt to impose a duty on a local authority to take reasonable steps to assess the needs of an individual child in need, it is equally apt to impose the duty mentioned above to provide a range and level of services 'appropriate' to those needs."
"36…However, I would like briefly to summarise my views on the interrelationship between the duty under Part VII of the Housing Act 1996 and the duty under section 20 of the Children Act 1989 in the case of children aged 16 or 17, who "require accommodation".
37 The borough's argument, which was accepted by the majority of the Court of Appeal, is as follows. At the time G approached the borough's children's services authority, he was a child aged 16 or 17 who was "homeless", "eligible for assistance", and not "homeless intentionally". Accordingly, he had priority need for housing under Part VII of the 1996 Act, as a result of the Homelessness (Priority Need for Accommodation) (England) Order 2002 . Consequently, as the local housing authority thereby had a duty to house him, the children's authority could perform its duty under section 20 of the 1989 Act by making arrangements with the housing authority to ensure that G was provided with housing.
38 Apart from being inconsistent with the thrust of the reasoning of this House in R (M) v Hammersmith and Fulham London Borough Council  1 WLR 535 , I consider that this argument is unsatisfactory, for two connected reasons. First, and most importantly, the 2002 Order expressly excludes from priority those children aged 16 or 17 to whom a children's authority owes a duty under section 20 of the 1989 Act. Secondly, the argument could not have been advanced before the 2002 Order came into force.
39 The fact that children to whom a children's authority owe a section 20 duty are excluded from the ambit of the 2002 Order seems to me to render the borough's argument circular. On the face of it, G "require[s] accommodation" and therefore must be "provide[d with] accommodation" by the children's authority under section 20 of the 1989 Act. In order to avoid that conclusion, the borough argues that G has a priority need claim *1313 on the housing authority under the 2002 Order. But the only basis on which G falls within the scope of the 2002 Order is if the children's authority has no duty under section 20 of the 1989 Act. So, the reasoning on which the borough relies to avoid the duty which is prima facie imposed by section 20 effectively involves asserting that there is no such duty.
40 Not only is this reasoning circular, but it appears to me to be inconsistent with the purpose of the 2002 Order in relation to children aged 16 and 17. Until the order came into force, a child aged 16 or 17 would not have been treated as being in priority need under Part VII of the 1996 Act unless he or she was "vulnerable as a result of … [some] other special reason"—see section 189(1)(c) . If a child of that age fell within section 20 of the 1989 Act, he or she would be provided with accommodation. However, if such a child did not fall within section 20 , no accommodation would be provided, unless he or she was found to be "vulnerable"—and even then there might have been an argument that being aged 16 or 17 was not a "special reason". The purpose of the 2002 Order was, as I see it, to fill that lacuna, not to enable a children's authority to divert its duty under section 20 to the housing authority, thereby emasculating the assistance to be afforded to children of 16 or 17 who "require accommodation".
"in relation to the child's developmental needs and the other domains of the assessment framework, with objectives and plan of action, person or agency responsible, date by which objectives is to be achieved, and outcome. It serves to highlight the detail required for a core assessment, the process of carrying out such an assessment (including the involvement of parents or carers, children and other relevant family members), and the fact that in completing the record, it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help."
"… There should be a systematic assessment of needs which takes into account the three domains (child's developmental needs, parenting capacity, family and environmental factors) and involves collaboration between all relevant agencies so as to achieve a full understanding of the child in his or her family and community context. It is important, moreover, to be clear about the three-stage process: identification of needs, production of a care plan, and provision of the identified services. It seems to me that where an authority follows a path that does not involve the preparation of a core assessment as such, it must nevertheless adopt a similarly systematic approach with a view to achievement of the same objectives. Failure to do so without good cause will constitute an impermissible departure from the guidance."
1. The young person's health and development;
2. Needs for education, training or employment;
3. The support available from family and other relationships;
4. Financial needs;
5. The extent to which he or she possesses the practical and other skills necessary for independent living; and
6. Needs for care, support and accommodation.
"In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs."
(a) A declaration that from the date of assessment on 25 June 2015 the A was a child in need and a quashing order in respect of this decision;
(b) A declaration that the Defendant unlawfully failed to accommodate and support the Claimant pursuant to their obligations under s. 20 CA 1989 from 25 June 2015;
(c) A declaration that, but for the errors of the Defendant, the Claimant would have been accommodated for at least a 13 week period and would therefore upon turning 18 have been as a matter of law been a "former relevant child";
(d) An order that the Defendant consider the exercise of their discretion in relation to whether to treat the Claimant as if she was a former relevant child, including by consideration of their powers to do so, including inter alia under s. 1 of the Localism Act 2011;
(e) It is ordered that the Defendant shall pay the Claimant's costs to be taxed if not agreed.
(f) Such other relief as the Court sees fit.
(g) The Claimant's publicly funded costs be subject to detailed assessment.
"44 So far as principle is concerned, there seems to me no good reason to hold that a child who has not in fact been looked after by a local authority should be treated as if he had been, so as to be able, on that account, to become a former relevant child. The purpose of the provision is to provide some continuity of care and assistance after a child who has been looked after by the local authority becomes 18. The draftsman cannot, I think, be taken to have contemplated that provisions intended to have that effect should create a right, after the child was 18, on account of the fact that he should have been, but was not, accommodated for the relevant period before then."
"53. If, as I think, R could not be deemed to be a former relevant child, the best that he could hope for would be that the local authority should treat him as if he was a former relevant child. For practical purposes that might be regarded as amounting to the same thing. But there is a critical difference. If R was to be deemed to be a former relevant child, he would be entitled to the whole range of duties applicable to such a person. If, however he was to be treated as if he was such a child, this could only be on the basis that the local authority should exercise its discretion to act in this way. Any such discretion, if it fell to be exercised at all, would have some flexibility. The local authority might, for instance, decide to provide some but not all of the services that it might have been obliged to provide if R was, in fact, a former relevant child. "
"54 I accept that a local authority may use its discretionary powers to make good any unlawfulness that it has committed in the past and may, in some circumstances, be obliged to do so. In R (S) v Secretary of State for the Home Department  Imm AR 781 this court drew attention to the fact that the Secretary of State had a residual discretionary power to grant indefinite leave to remain to someone no longer entitled to refugee status as such; that the grant of indefinite leave might provide a remedy for unfairness; and that it was open to the court to determine that a legally material factor in the exercise of the discretion was the correction of injustice. In an extreme case the court could hold that the unfairness was so obvious, and the remedy so plain, that there was only one way in which the Secretary of State could reasonably exercise his discretion. (That appears to be what Thirlwall J decided in R (R) v Croydon London Borough Council  EWHC 4243.) The court recognised that the Secretary of States decision would fall to be made on the basis of present circumstances but those circumstances might include the present need to remedy injustice caused by past illegality: para 47."
"55 There is no general rule that, wherever it has acted unlawfully, a local authority must undo its past errors to the fullest extent that it can. Much will depend on the circumstances, including whether or not the claimant had sought interim relief and been refused (as here), whether he was guilty of unacceptable delay, and whether and to what extent the authority or the claimant should be regarded as blameworthy. There may be countervailing considerations of public interest which would entitle it to refuse any relief at all. It may be relevant to consider what other remedies are open to the claimant. The matter would be one for the discretion of the local authority, to be determined in the light of whatever application is made and in the circumstances applying when it is invoked".