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Cite as:  EWHC Admin 5
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Case No: CO/3745/2000
Neutral Citation Number:  EWCA ADMIN 5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Thursday 18th January 2001
THE HON MR JUSTICE HOOPER
The Queen on the application of Roda Guleed
The London Borough of Barnet
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr. STEPHEN KNAFLER and MISS BETHAN HARRIS (instructed by Messers Bindman & Partners for the Claimant)
Mr. HILTON HARROP-GRIFFITHS (instructed by London Borough of Barnet for the Defendant.
As Approved by the Court
Crown Copyright ©
MR JUSTICE HOOPER:
1. This is an application for judicial review of a decision of the defendant Borough communicated in a letter dated 9th October 2000. During the course of the hearing I granted permission and the parties had previously agreed at an earlier hearing before me that, should I grant permission, I would consider the full application.
2. The claimant is a Dutch national of Somali origin. On 9th May 1999 she gave birth to her son Bile. She has a Dutch passport issued on 30th May 2000. On 16th June 2000 she entered this country from Holland. In Holland she had been in receipt of state benefits. On about the 26th June she applied for accommodation to the defendant's Homeless Person's Unit. That application was refused on the basis that she failed the habitual residence test. After an initial refusal she and her son were provided with accommodation and subsistence pending an assessment under the Children Act 1989. Subsequently the claimant was offered financial assistance to return to Holland, an offer that has remained open. She has refused this offer.
3. The reason given by the complainant for leaving Holland was that the father of her son had abandoned her in early 1999 as soon as he had heard of the pregnancy. She claimed that her mother had felt great shame and had become hostile to the claimant as did members of the local Somali community because of the situation she found herself in. She claimed that her mother had asked to leave. The local authority made a number of inquiries seeking information about her situation in Holland. Contact was made with her social worker in Holland. The local authority reached the conclusion that the reasons she gave for leaving Holland are not true. The local authority also reached the conclusion that if she were to return to Holland with her son, she and her son would be properly looked after by the social services in Holland. During the course of the hearing Mr Knafler on behalf of the claimant accepted, for the purposes of argument, that these conclusions could not be challenged as conclusions which a reasonable decision maker could not have reached. I therefore approach this case on the basis that there is no good reason why the claimant should not return to Holland with her son and that if she were to return she and her son would be properly looked after.
4. She has given as a reason for wanting to come to this country that she is searching for Bile's father who she says she believes is in this country. Following enquiries the defendant has doubts that she is telling the truth about this. There is evidence from Holland that she does not know who the father is. It was accepted by Mr Knafler, for the purposes of argument, that the local authority was reasonably entitled to reach the conclusion it did about this suggested reason for coming to this country.
5. On 9th October 2000 the defendant wrote a letter to the claimant telling her that they were giving her 7 days notice of their decision to end her support and accommodation. The letter states that: "We are aware that you and Bile need accommodation and money to live on, and you are not at present entitled to benefits in this country ...". The letter continues:
"We continue to believe that it is in the best interests of you and Bile for you both to return to Holland where you are entitled to accommodation and benefits immediately. We also believe it would be better for you both to be in an environment where you have family support and you can speak the language. We have heard about your reasons for being in London and why you do not wish to return to Holland, however, we do not accept that these are completely truthful and we do not think that they constitute a valid reason why you may not return to Holland"
6. The conclusion that it would be in the best interests of the claimant and her son to return to Holland is a conclusion, it is accepted for the purposes of argument, that the defendant could reasonably reach. The letter spoke of the continuing offer of fares back to Holland.
7. The concessions made on behalf of the applicant were made only for the purposes of argument, it not being conceded that the conclusions reached by the defendant were lawfully reached in the light of the alleged failure to carry out a proper assessment.
8. I turn now to the paragraph which is central to this application:
"If you continue to remain here we are concerned that Bile would not have access to accommodation or subsistence. We offered to provide Bile with accommodation without yourself. You indicated that you did not wish to consider this. This offer too remains open."
In the penultimate paragraph the defendant states that if these circumstances change and the claimant wishes the matter to be reconsidered then she or her representatives should contact the defendant.
9. In argument before me, Mr Knafler submitted that the proper role of social workers was to assess need and not (in effect) to make "immigration decisions". He cited the case of R v Wandsworth LBC ex parte O  3 CCLR 237. I see no merit in this argument. I am satisfied that the decision contained in the letter of 9th October would have been the same if a mother and young child had arrived in London from Manchester and refused with no good cause to return to Manchester where they would properly be looked after.
10. It follows that the issue which I have to resolve in this case may be stated in the following way:
What are the obligations of a local authority under the Children Act 1989 towards a young child who is within the area of the local authority because the parent refuses without good reason to take the child to a place outside the area of the local authority where that child would be properly looked after?
11. There is no dispute that the claimant is a good mother, ignoring her refusal to return to Holland. Apart from that refusal there is no issue as to her suitability to look after the child. Nor can there be any doubt that it would not be in this child's best interests to remove him at this young age from his mother. If the claimant remains in England and the defendant pursues the course outlined in the challenged letter, Bile will be put into the care of foster parents.
12. I start by setting out the relevant provisions of the Children Act, 1989, as amended:
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 of level of services appropriate to those children's needs.
(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.
(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.
(11) For the purposes of this Part a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part-
`development' means physical, intellectual, emotional social or behavioural development; and
`health' means physical or mental health.
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.
(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.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
22. General duty of local authority in relation to children looked after by them- (1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is-
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970.
23. Provision of accommodation and maintenance by local authority for children whom they are looking after-
(1) It shall be the duty of any local authority looking after a child-
(a) when he is in their care, to provide accommodation for him; and
(b) to maintain him in other respects apart from providing accommodation for him.
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by-
(a) placing him subject to subsection (5) and any regulations made by the Secretary of State with-
(i) a family;
(ii) a relative of his; or
(iii) any other suitable person on such terms as to payment by the authority and otherwise as the authority may determine;
(b) maintaining him in a community home;
(c) maintaining him in a voluntary home;
(d) maintaining him in a registered children's home;
(e) maintaining him in a home provided in accordance with arrangements made by the Secretary of State under section 82(5) on such terms as the Secretary of State may from time to time determine; or
(f) making such other arrangements as-
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State.
(3) Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(4) A person falls within this subsection if he is-
(a) a parent of the child;
(b) a person who is not a parent of the child but who has parental responsibility for him; or
(c) where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made.
(5) Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the Secretary of State.
(5A) For the purposes of subsection (5) a child shall be regarded as living with a person if he stays with that person for a continuous period of more than 24 hours.
(6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with-
(a) a person falling within subsection (4); or
(b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare.
(7) Where a local authority provide accommodation for a child whom they are looking after, they shall, subject to the provisions of this Part and so far as is reasonably practicable and consistent with his welfare, secure that-
(a) the accommodation is near his home; and
(b) where the authority are also providing accommodation for a sibling of his, they are accommodated together.
13. Mr Harrop-Griffiths accepted during the course of argument that Bile is a child in need within the meaning of section 17(10). The fact that he would have "the opportunity of achieving or maintaining" "a reasonable standard of health or development" in Holland did not, so Mr Harrop-Griffiths conceded, prevent him from being a child in need.
14. In R v Hammersmith and Fulham LBC ex parte Damoah  2CCLR 18 the facts (as taken from the headnote) were:
"Mrs Damoah was a Swedish national of Ghanaian descent with two sons aged 15 and 9 years. On 26 September 1998 she travelled to the United Kingdom with her sons; fleeing domestic violence, seeking employment as a nurse (in the exercise of her European Economic Area (EEA) rights) and intending to start a new life. Mrs Damoah was refused income support and housing assistance because she failed the habitual residence test. Accordingly, when her own resources and those of her relatives in the United Kingdom were exhausted, Mrs Damoah sought assistance from the respondent authority under Children Act 1989 (CA) s17. Initially, the respondent authority provided the family with housing and subsistence payments, while Mrs Damoah continued to look for employment. Ultimately, however, the respondent authority decided that it was in the best interests of Mrs Damoah's children to return to live in Sweden. Its reasons related to the availability of housing and welfare benefits in Sweden (but not in the United Kingdom) for which the family was eligible, the fact that the children had been educated in Sweden, spoke Swedish better than English and missed Sweden and the fact that, at the time of the decision, no concrete offer of employment had been made to Mrs Damoah. Accordingly, and despite Mrs Damoah's clear statements that she would under no circumstances return to Sweden, on 27 October 1998 the respondent authority offered to fund the cost of the family's return to Sweden and made it clear that `the Department is not prepared to financially assist your Client and her children to remain in the country beyond 28 October 1998'."
12. Kay J stated at page 138:
"I have no difficulty at all in concluding that in deciding to limit its powers in this way the respondent was in breach of its duties to the children under the Act. Although the respondent might have concluded that it was in the best interests of the children to return with their mother to Sweden, it had to recognise the possibility that the mother, whose stated opposition to the proposal was as clear anyone could make it, might not accept the offer. In such circumstances the children would remain in this country and would still be in need by reason of their homelessness. In such circumstances the respondent would have to consider how best to meet those needs and the decision that it would not assist the children financially beyond the following day was one that excluded one of the ways that the respondent had to consider to meet those needs. Indeed the way that was excluded was one, having regard to the requirement contained in section 17 of the Act `to promote the upbringing of such children by their families', from which it could only depart if it was exceptionally persuaded that some other course was appropriate.
During argument I suggested that the position might have been very different if the letter had stated the respondent's conclusion that the children's needs would be best met by the family returning to Sweden and made the offer to provide funding for the return giving the mother a reasonable opportunity to assess her position, and then indicated that if the offer was not accepted the respondent would reconsider its position when all its powers under the Act would be open to it. Mr Elias accepted that, as he put it, the letter as sent was not very happily worded. I have no doubt at all that the letter went way beyond an unfortunate choice of language and that the decision to withdraw all funding from the children if they remained in this country was manifestly a decision that the respondent could not properly make."
13. Mr Knafler accepts that the defendant has not made the error made by the local authority in Damoah. In that case there was a blanket refusal to give any help should the children remain in this country. In this case the defendant is not saying "go back to Holland and, if you do not, we will provide no assistance under the Children Act" but "go back to Holland and, if you do not, we will provide accommodation for Bile alone." Mr Knafler submits, however, that the decision to accommodate Bile alone is not a decision, on the facts of this case, which the defendant could properly reach. He submitted that, in an appropriate case after a full assessment had been carried out and after a care plan had been produced, a decision to provide accommodation to a child alone in these kind of circumstances could be a reasonable and proper decision to reach. Mr Knafler submits that there was no proper assessment and care plan and that, in particular, no assessment of the consequences of removing Bile from his mother has been made. I do not need to resolve that issue because there is no dispute that it would be in the best interests of Bile to remain with his mother.
14. Mr Harrop-Griffiths did not argue that the decision in Damoah was wrong. He referred me particularly to section 20(1)(c) and (4) and submitted that, on a true construction of section 20, the provision of accommodation is for the child only and that there is only a duty to accommodate a child in need if the provisions of section 20(1) apply.. Whilst accepting that these provisions impose no duty to accommodate the mother in circumstances like these, there remains a power to accommodate the child with his mother rather than with foster parents (see e.g. R. v Tower Hamlets ex parte Bradford  1 CCLR 124). The decision not to exercise that power must be reasonable.
15. Mr Harrop-Griffiths submits that:
"As a general principle, it cannot be right that a mother who can reasonably have access to the means of meeting [the needs of her child] but refuses to pursue this, should be able to rely on this refusal as the basis for the child's need and so in effect require a local authority to provide her with such support."
I have considerable sympathy with this submission. However, if the child is "in need" by virtue of section 17(10) (and it is conceded by Mr Harrop-Griffiths that Bile is) and if it is in the best interests of the child to live with his mother (as it is in this case), it seems to me that the local authority, exercising its Children Act powers, has no alternative but to place him with his mother assuming that it is reasonably practicable to do so. Given the duties imposed on the local authority under section 17(1) (a) and (b) and the powers granted to it by section 23 and bearing in mind the decision in Damoah, it is difficult to see what other course is open to the local authority even though the mother (as in this case) is, in the view of the local authority, acting in an unreasonable manner. It may be that local authorities would be better advised to take the course suggested by Kay J in Damoah, namely make the offer of free travel and indicate that, should the offer not be accepted, the local authority would reconsider its position in the light of its obligations under the Children Act.
16. For these reasons this application succeeds.
MR JUSTICE HOOPER: Miss Burt, I am afraid Mr Harrop-Griffiths did not send me any corrections nor did he send me what is called a nil return, which I think he is required to do.
MISS BURT: My Lord, I have no instructions regarding the judgment. Given that, I assumed----
MR JUSTICE HOOPER: Have you read it?
MISS BURT: I have.
MR JUSTICE HOOPER: Did you find any typographical errors?
MISS BURT: My Lord, I did not.
MR JUSTICE HOOPER: I have adopted your corrections, Mr Knafler. I put in a new paragraph to explain why it was that you were making these concessions.
MR KNAFLER: I am very grateful, my Lord.
MR JUSTICE HOOPER: I made one other change, apart from the others which you mentioned which were purely typographical errors. When I dealt with the words in paragraph 15, "no alternative but to place him with his mother, assuming that it is reasonably practical to do so". That word comes from one of the sections in the Children Act. I will hand down my approved judgment, thank you. Anything further?
MR KNAFLER: Uncontroversially, I ask your Lordship to quash the decision of 9th October and to order the respondent to pay costs.
MR JUSTICE HOOPER: Yes.
MR KNAFLER: Controversially, I ask your Lordship to order the respondent to continue to accommodate the claimant until seven days after any further assessment. There has been a change of circumstances. I understand this morning that she is now deemed to be habitually resident by the DSS, but she, as I understand it, is still in local authority accommodation and does not yet have anywhere else to go so, to that extent, B still has the need for health although, hopefully, one that will disappear shortly.
MR JUSTICE HOOPER: What order do you want me to make?
MR KNAFLER: An order requiring the respondent to continue to provide accommodation and assistance under section 17 of the Children Act 1989 until seven days after any further assessment.
MR JUSTICE HOOPER: That is not controversial?
MR KNAFLER: That is controversial.
MISS BURT: My Lord, only in so much as, I have attempted to make a telephone call to those instructing me to clarify the position. My instructions in coming to court this morning were that income support had been provided since 11th January and that they had in fact been backdated until December. I was clarifying whether, in fact, the claimant had now been provided with accommodation but, unfortunately, I have not been able to ascertain that information prior to coming into court. So, my Lord, save to say----
MR JUSTICE HOOPER: I shall make the order unless, within two hours, you have telephoned my clerk to say that the order should not be made, is that all right?
MISS BURT: Yes, my Lord.
MR JUSTICE HOOPER: I am not particularly anxious to come back into court today, but if I need to do so I will at
2 o'clock. I am anxious that you sort this out between the two of you and that you also tell the associate.
I will make the other orders you asked for. Do you want permission to appeal?
MISS BURT: My Lord, yes. I hope you have had the opportunity to consider it.
MR JUSTICE HOOPER: I have. Mr Knafler, my inclination is to grant this on the ground that it is a matter of considerable public interest. What is the test?
MR KNAFLER: Arguable grounds of appeal or of considerable public interest.
MR JUSTICE HOOPER: What are the exact words?
MR KNAFLER: I do not have the precise wording at my fingertips, but it is essentially considerable public interest, as your Lordship has formulated.
MR JUSTICE HOOPER: That is the category I feel it is in. Do you wish to oppose that?
MR KNAFLER: I think your Lordship indicated at the last hearing, I know Miss Burt was not there, that you would be minded to grant permission to appeal by the way. I would only say this: in my respectful submission, your Lordship has, on different facts, essentially followed the principle found in Demara (?). There was not an appeal in that case even though the council was represented by eminent leading counsel, as he then was, and also that your Lordship is plainly right.
MR JUSTICE HOOPER: I do take the view that it is a very important point which could have a significant impact on local authorities and I certainly grant permission to appeal.
MR KNAFLER: My Lord, I simply ask for an order for detailed assessment of the claimant's public funding costs.
MR JUSTICE HOOPER: Yes. What I have done is say it is a case of public interest. It is to be considered by the Court of Appeal, given the possible financial implications. I do not think I need view your actual grounds.
MISS BURT: My Lord, I am obliged.
MR JUSTICE HOOPER: Is there anything further? I hope not to see you at 2pm.