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Cite as: [2007] EWHC 2364 (Admin)

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Neutral Citation Number: [2007] EWHC 2364 (Admin)
CO/5263/2007

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL
26 September 2007

B e f o r e :

MR JUSTICE BURTON
____________________

Between:
THE QUEEN ON THE APPLICATION OF L Claimant
v
NOTTINGHAMSHIRE COUNTY COUNCIL Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr I Wise (instructed by Bhatia Best, Nottingham 6) appeared on behalf of the Claimant
Mr L Samuel (instructed by the Legal Department for Nottinghamshire County Council) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE BURTON: The applicant L was born on 2 August of 1989. She was accommodated by the defendant, the Nottinghamshire County Council, for the first time under section 20 of the Children Act 1989 Act, when aged five in February 1995. She had a fraught and difficult childhood with an evanescent father, and a mother with whom her relationship was strained and spasmodic. She ran away from home aged six. She was expelled from school aged 7. She was placed on a child protection registrar. She was injured and allegedly abused by her stepfather, although her mother blamed her for the alleged assault and refused to have her back at home when she was aged 11.
  2. In November 2000, after a period in what was called "Police Protection", she was taken under the wing of the defendant council again under section 20 of the 1989 Act aged 11 through to aged 15. During that period she was reported to be in a relationship with a Schedule 1 offender when she was 13. At aged 14 to be in a relationship with two 19 year old males. She attempted to selfharm and to commit suicide on two separate occasion. She was in the care home under section 20 until December 2004 when she left to go to live with a new boyfriend, who was not himself, I am afraid, entirely satisfactory. She was using drugs and drinking heavily, as reported to the social worker at the time, but she lived with him and his mother through until May 2005. It appears that she had a child by this boyfriend, who was taken into care within days of being born in July 2005. After a period of time with the mother-in-law, to which I have referred, she then went to live with her mother, but that was another difficult period and she spent a lot of time away from that residence.
  3. In August 2005 she requested further accommodation from the defendants who referred her to TPHABG RO*, and that was unavailing and on 15 September 2005 there occurred the events, which have formed the subject of prime consideration on this application, for which permission has been given by Dobbs J. She was evicted from her mother's house on 15 September 2005 and accommodated by the defendant at a bed and breakfast accommodation called Travel Lodge in REBG ford until 21 September 2005, and provided with some financial assistance. She wrote a letter to the defendant social worker thanking him for help, as she said if he had not arranged Travel Lodge she would have been on the streets.
  4. In the month or so after that she was accommodated at King Edward Hotel, funded by Bassett Law Council Housing Department. She moved to another premises called French Horn, again funded by Bassett Law and again on 27 September Bassett Law asserted that the responsibility for her was that of the defendant. She informed the defendant that she had been evicted from the French Horn in October 2005 and was accommodated in November 2005 by Hope for the Homeless for a short period.
  5. She then moved on 8 November 2005 to live with first a boyfriend and then with an aunt. She took up a flat, for which her father, it seems for the first time, provided some support in Nottingham in February 2006, `but at some stage in 2006 became street homeless. In 2007 she went to her present solicitors, whose advice was to issue the present proceedings which have, with permission, now come before me.
  6. The issue is whether when the defendant provided accommodation for her at Travel Lodge, between 15 and 21 September 2005, they did so under section 20 of the Children Act 1989. The case for the claimant is that the accommodation thereafter, albeit paid for by Bassett Law District Council, in King Edward Hotel and/or French Horn and even the accommodation of Hope for the homeless, was also accommodation provided by the defendant under section 20. But I have not needed to consider that period because, for reasons that I shall indicate, it will be enough to resolve this case if, for the period of 15 until 21 September 2005 she was accommodated by the defendant at Travel Lodge pursuant to section 20.
  7. If she was then it is common ground that she had been, prior to aged 17, in the care of the defendant for at least 13 weeks, indeed for considerably longer, as I indicated in the course of my reading the history of her unfortunate life.
  8. The 13 weeks is significant because in order for her to have been an eligible child within the 1989 Act, she had to have been, at the material time, aged 16 or 17 and have been looked after for at least 13 weeks since the age of 14 (see section 19(b)(ii) of Schedule 2 Part II of the 1989 Act and the Children Leaving Care Regulations 2001 Regulation 3.) If she was such an eligible child then she would become a relevant child pursuant to section 22 of the 1989 Act which reads as follows: CHECKED
  9. "(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-
    ...
    (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under section 17, 23B and 24B.
    (2) In subsection (1) accommodation means accommodation which is provided for a continuous period of more than 24 hours."
  10. Consequently if she was, after having attained the qualifying 13-eek period prior to the age of 17, in accommodation provided by the defendant for a continuous period of more than 24 hours, then she was a relevant child.
  11. The 24 hours in question, albeit which was in fact six or seven days which is relied upon, is that in Travel Lodge. Once she was a relevant child then on attaining the age of 18 she became a former relevant child, by virtue of section 23 (c) of the 1989 Act. It is common ground that if she is a former relevant child a considerable number of obligations towards her must be undertaken by the defendant, even after the age of 18. The claim that is made in these proceedings seeks the following relief, or in material part:
  12. (i) a declaration that the claimant has been looked after for the prescribed 13 week period and is a former relevant child;
    (ii) a mandatory order requiring the defendant to assess the claimant's needs and produce a pathway plan which accords with regulation 8 of the 2001 regulations in the shortest
    period deemed by the court to be reasonable
    (3) a mandatory order requiring the defendant to appoint a personal adviser for the claimant forthwith and in any event within three weeks days.

    It is common ground that if she a former relevant child, by virtue of findings I make with regard to what was her status as between her and the defendant between 15 and 21 September 2005, then those obligations follow.

  13. The defendant asserts that they simply provided help with accommodation under section 17 of the 1989 Act. Section 17 provides for a duty and a power on a local authority, whose material part is as follows, section 17(1):checked
  14. "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."

    By an amendment to section 17, as a result of the Adoption and Children Act 2002, section 116(1) which came into force on 7 November 2002, a new subsection 17(6) was added, which reads as follows: checked

    "(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation ..."

    This was to make good a lacuna, as was seen in section 17, which had been identified in the cases which led to the decision of the House of Lords in R v G v Barnet London Borough council and the R v W v Lambeth Borough Council [2004] 2 AC 2008 in situations in which councils had been providing accommodation, as they understood it, under section 17, which turned out to have been ultra vires as found by the courts.

  15. That power under and function under section 17(1) and (6) is what the defendant say they did in September 2005.
  16. The claimant relies, as I have indicated, on section 20 of the 1989 Act, which in material parts reads as follows under the heading "Provision of accommodation for children; general": checked
  17. (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) their being no person who has parental responsibility for him; [or)
    (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."

    I have added the word "[or]" after (a) because it was common ground that the three subsections are disjunctive and in this case it is subsection (c) which is relied upon by the claimant.

  18. Subsection 20(6) reads as follows:
  19. "before providing accommodation under this section a local shall so far as is reasonably practical and consistent with the child's welfare-
    (a)ascertain the child's wishes and feelings regarding the provision of accommiodation;
    (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."

    By subsection (7) there is provided:

    "a local authority may not provide accommodation under this section for any child if any person who -
    (a) has parental responsibility for him; and
    (b) is willing and able to -
    (i) provide accommodation for him;
    (ii)and arrange accommodation to be provided for him

    objects."

  20. It is common ground between the parties that there are four relevant decisions which have been of value to them and to me in consideration of the issues in this case. The first in time was the Court of Appeal decision in the R v (on the application) of M v London Borough of Hammersmith and Fulham [2006] EWCA Civ 917. This was a case not directly on point, because the issue there was whether the position of the child in that case fell to be considered under the Children Act, or under the Housing Act. The issue that was being considered was whether the child in that case was a child in need.
  21. In so far as there was consideration consequently of the facts of the case and of the legislation, what was said by the Court of Appeal in that case was obiter, although I understand, from Mr Wise, who was in that case, as he has appeared before me on behalf of the claimant, that there is leave to go to the House of Lords and so the matter may be considered by their Lordships' house on a different basis.
  22. Then there are two decisions, one at first instance by Stanley Burnton J and one on appeal by the Court of Appeal, in R v (on the application of) S v Sutton London Borough Council. I am told that the decision at first instance by Stanley Burnton J was delayed while awaiting the outcome of a decision in the fourth of the decisions, to which I have been referred, namely H and Others v Wandsworth London Borough council, a decision of Holman J [2007] EWHC 1082, 10 CCLR 447.
  23. The Sutton cases are set out at first instance in 2007 EWHC 1196 and reported at 10 CCLR 486 and on appeal in 2007 EWCA Civ 790. Both the two latter cases, and consequently all three decisions, were directly on the point of the legislation now being considered before me.
  24. There was in issue before all the courts, and, in particular, considered in some detail by Holman J, a local authority circular of 2 June 2003, which purported to provide assistance to local authorities in respect of the operation of section 17, particularly in the light of a new amendment adding section 17(6) and section 20. The relevant part of the circular reads as follows: "Framework for the Assessment of Children in Need and their Families": Checked
  25. "The amendment to section 17 did affect the duties and powers of local authorities to provide accommodation for lone children under section 20 of the Children Act 1989, or under a care order. Accordingly, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families. However, there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under section 17..."

    Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families published by the government in April 2000. Pausing there, there is no evidence in, and consequently it must be assumed that it is not the case, that the Defendant Council carried out any such assessment in this case in September 2005. I continue:

    "It should then use the findings of that assessment which will include taking account of the wishes and feelings of the children as required by section 26 of the Children Act as a basis for any decision about whether he should be provided with accommodation under section 20 or whether other types of services provided under section 17 of the Act are better suited to his circumstances. The assessment should first determine whether the child meets the criteria set out in section 21 and the circular then sets out the three subsections which I have quoted. For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate. While the needs assessment is being carried out he should be cared for under section 20."

    Pausing there for the moment, it would become apparent that if that assessment is to be carried out it will be likely to take longer than the 24 hours which will be sufficient to render a relevant child, or an eligible child, if he or she had, for more than 13 weeks prior to the age of 16, fulfilled the relevant qualification:

    "Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful means of support in this country. In such cases the child being without a family, or responsible adult in this country, would appear to trigger a duty under section 21. However after taking account of the child's wishes, as required by section 26, the local authority might judge that the child is competent to look after himself. In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20 and thereby taking him into the looked after system. In such cases section 17 may be used for support, including help with accommodation without making the child a looked after child."

    There are further matters which were not in dispute between the parties. The first was that the affect of section 20, as I have described, if applicable, is significant and burdensome. It is not surprising that the defendant council should resist the conclusion that section 20 applied to what they did, now more than two years ago, but it is also common ground that there is no suggestion at all that, as was described by the judges in one or two of the cases, to which I have referred, there was any question of the council sidestepping or evading any of its obligations. None of the decisions, to which I have referred, were extant at the time. The circular is, as Holman J said, not entirely clear and there is no doubt at all that the council did not have in mind at the time the kind of questions which are now left for consideration by me.

  26. Secondly, however, it is also common ground that the classification or definition of what was being done by a council at the time a fortori where there is no assessment and where the relevant matters are not in mind, cannot possibly be determinative as to what occurred, and under which section the acts took place. Thirdly, and to the same effect, although the child's wishes must be taken into account, certainly if an assessment is carried out, the child's wishes cannot be, and are not, determinative.
  27. Finally, it is accepted by the defendant that in the light of the admitted 13-week qualification, if what occurred in September 2005 fell within section 20, then the relief that is sought by the claimant would follow.
  28. I return to the central question, which is whether section 20 does apply. At the end of the day, as really by the end of the very helpful argument by both Mr Wise and Mr Leslie Samuel for the defendant had become clear, the questions are largely one of fact for me to resolve. Looking at section 20(1) there are four requirements which must be satisfied in relation to my concluding that the accommodation was provided under section 20, which would render the claimant a former relevant child:
  29. (1) the child must have been at the material time a child in need. (see section 20(1) this is considered)
    (2) the child in need must have been in the defendant's area. Once again this is conceded.
    (3) the child must have been a child who, at the relevant moment 'appears to them to require accommodation.'

    that is the first area in which there is battle between the parties.

    (4) One of the three sub clauses must apply."

    The one that is relied upon by Mr Wise is this: [I reincorporate the words with which subparagraph (1) is predicated]: "who appears to them to require accommodation as a result of ... checked

    (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."
  30. The definition of the word "prevented" is of some significant, but subject to that this is once again a factual battle between the two parties.
  31. The circular, to which I have referred, is not, as Holman J has commented on, entirely clear. It appears to me to introduce a presumption that a lone child is likely to be being provided, if indeed otherwise qualifying, with accommodation under section 20, whereas a child with parents, or a parent, may well not be under section 20. It is clear that section 20(7) makes it obvious that the presence of parents does not eliminate the possibility, to put it at its lowest, of there being a section 20 accommodation, because indeed it specifically deals with the possibility of there being a section 20 provision of accommodation, unless such parent protests, or objects.
  32. I turn then to the issues, which, as I have indicated, there are two. The first one is whether in September 2005 the claimant: checked
  33. "appeared to the defendant to require accommodation."

    It is, to my mind, important, on the facts of this case, that there was no assessment. So we are not looking at a document in which a careful consideration was given by the defendant as to whether, for example, the claimant needed accommodation, or only needed help with accommodation. This apparent difference is one which Holman J thought arose out of the wording of the circular, to which I have referred. I can see that depending on the facts of a given case, it may well be significant if, particularly after an assessment, a defendant council decides, "Well all this child requires is some help, for example, financial help with accommodation, and we can stand on the side lines." Mr Wise submits that the council cannot absolve itself from the obligation under section 20 by such a conclusion, but if a genuine conclusion, and particularly one arrived at after an assessment, it would appear that that may well put such a council into the section 17 option rather than the section 20 duty.

  34. In H, to which I have referred, there were three different cases conjoined and heard by Holman J. In relation to two of them he concluded that there was a section 20 situation. In relation to the third, however, which was the Islington case, he concluded that all that Islington had done was to provide help with accommodation by some financial assistance to facilitate the child in question living with others in a flat. So he concluded that it was not a section 20 duty.
  35. It may well be said that the learned judge may have approached the position incorrectly by paying too much attention to what actually happened, rather than what appears to me to be the central question, namely whether at the material time the child appears to require accommodation. However, on the facts before him the decision may well be justified by the existence of an assessment. I read paragraph 104 of the judgment. "The facts may have been fortuitous. On 4 April Islington had offered to provide other accommodation for the claimant in Edmonton which she has visited but rejected ... so ... they were 'on the verge of having to provide accommodation for her'. But as events turned out there was accommodation available at Morrison Avenue acceptable to her which required from Islington no more than payment of the deposit. By helping her to privately rent that property they did in fact sidestep (fortuitously but not previously) the section 21 duty. In terms of section 21 itself once the accommodation at Morrison Avenue was available and acceptable to her she no longer appeared to require accommodation, but only help with the deposit. It seems that on the facts he was positively concluding that at any rate after a period when she had first thrown herself before the council and before she had moved into the accommodation, she did not appear to require accommodation. That may well justify the conclusion.
  36. So far as the facts of this case are concerned, we have little, not surprisingly, in relation to the events of 2005, although unless there is something which I have not been shown, there does not appear to be any witness statement from the defendant, which might have made the position clearer. What it relied upon. There is not a witness statement dealing with this incident in any way which makes it clear letter. What there is, however, is a very full and efficient series of case notes. There is a central one dealing with what occurred on 15 September 2005, from which I shall cite: checked
  37. "I spoke to [L]. She told me that she had been living with her mother and stepfather for about 2 months and things had been 'dicey' from the start. Today [L] signed on to claim in her own right, as she was not getting any money. Someone (from DSS presumably) phoned [mother] and said that she could no longer claim child benefit as [L] was claiming for herself. [L] said that [mother] was angry at this and told her that she wanted 35 of the 40 that [L] would get for board and lodging, and that [L] would have to get her own food. She and [L] had a row because [L] said she wouldn't comply. [L] said that [her mother] pushed her against the wall and then told her to get out and not come back. She said that her mother had only shown any interest in her since she had the baby and wasn't really interested in her.

    ...

    7.45pm Phone call ... [from mother-in-law]. She has not been successful. She even phoned [L's] mother ... but she is adamant she will not have her back under any circumstances. I said I would speak to [mother], and I will also try to find somewhere for [L] to stay. In the meantime [mother-in-law] will take [L] back to her address to wait for our call.
    8.10pm Phoned [mother]... She said she would not have [L] back as she had hit her on the arm. I asked what the row was about and she said that [L] was in a mood because she didn't like the food at teatime. I asked about the DSS claims and she reluctantly admitted that [L] had said something about that. I asked about the charging of board and lodging and [mother] again said that she would do so if [L] had money. [Mother] was vague about it all. She was clear that she wouldn't have [L] back.
    8.15pm Phoned Service Manager, Steve Edwards, who is familiar with [L] and her circumstances. I explained what had happened this evening. He authorised payment for overnight accommodation and said that he felt she should be in reasonable accommodation and suggested the Travel Lodge at Worksop."

    There are only two other relevant notes. The first is dated 16 September 2005 at 10.57 in the morning when a telephone call to L is recorded by the duty worker and she is noted as saying:

    "she is not able to stay at any family members and does not wish to stay at paternal grandparents."

    The other is an internal memo relating to a financial matters, entered on 16 September 2005, with regard to money paid for overnight accommodation. The heading at the top of the note is "children - family support services essential assistance [section 17 Children Act 1989]" The defendant submits that that is an accurate record of what occurred. Plainly it is certainly a record of what the defendant council thought it was doing, but, as I have indicated earlier, the label that the council put on the matter cannot possibly be conclusive.

  38. The defendant's point to the fact that the circular specifically indicates: "There may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under section 17." I have no doubt at all that there is no dichotomy between section 20 dealing with lone children and section 17 dealing with children with families. I have already indicated that the two can easily cross fertilise. Section 20 can deal with children who have parents and section 17 can, in an appropriate case, deal as perhaps was the case in Holman J's decision, with a lone child who only appears to need help with accommodation, as opposed to appearing to require accommodation.
  39. But it is, at the end of the day, a question of what my conclusion is in relation to September 2005, where, as I have indicated, there was no careful consideration of what might lie behind the position, albeit, of course, that the defendant council knew the chequered history of this claimant. Mr Samuel has indicated that that is an important factor, that the council knew that, as he put it, all had been tried up to the very highest level of the care home for four years and consequently that should be taken into account in any conclusion as to what occurred. I do not see that that is in fact relevant. If previously they have tried all kinds of things, leading to a care home, that would not prevent the claimant from appearing to require accommodation. I am satisfied that that is exactly what she did appear to require in September 2005 and that is what, albeit only as it turns out only for a short period, she got. I am satisfied that this qualification is fulfilled by the claimant.
  40. The second issue relates to the applicability of section 21C. Here there are what has been accepted by Mr Samuel to be a dictum, but nevertheless a dictum from a judge of the Court of Appeal. That is in the Hammersmith and Fulham case. I have already described how nothing in fact was in issue, so far as the decision is concerned, once the Court of Appeal concluded that the child in that case was not a child in need, subject to any contrary decision that may be made on appeal to the House of Lords. So the question as to what would have been the position had the child been in need was mute.
  41. Lloyd LJ, alone of their Lordships and so not only was a dictum but it was a dictum of only one of their Lordships, said this: at paragraph 86: CHECKED
  42. "86. Mr Wise submits that any council officer, even in the homeless persons unit of the housing department, had only to look at M, with the limited knowledge of her that was available on 6 April 2005, in order to see that she was someone to whom the Council owed a duty to provide accommodation under section 20 of the 1989 Act."

    She then refers to the question of child in need."

    Then he turns obiter, as I have indicated, to consideration of subparagraph (c)., namely that the person who has been caring for him or her is: CHECKED

    "'prevented ...from providing him with suitable accommodation or care'. Given that what M needed was accommodation, and given that accommodation existed at her mother's home, it does not seem to me to be plain and obvious, at any rate, that her mother could properly be described as being prevented from providing her with accommodation."

    All that Lloyd LJ there says there from a conclusion of his is that it would not be plain and obvious that the child in question would in those circumstances be properly described as being prevented. He goes further in the following sentences: CHECKED

    "I do not mean to underestimate her mother's difficulties, given her own ill health, but not being willing to provide accommodation is not the same as being prevented from providing it. So far as section 20(3) is concerned, apart from the child having to be a child in need, the local authority would have to consider that her welfare is likely to be seriously prejudiced if they do not provide her with the accommodation."

    The facts of that case were set out in paragraph 10 of the judgment of Wall LJ as including the fact.

    "in early April 2005 when she was 17 the relationship between M and her mother broke down. M was asked to leave home. In her statement M's mother explains that she has an inoperable life threatening tumour and that in early April 2005 M's behaviour deteriorated to such an extent that her mother was unable to control her."

    Even without further consideration, to which I shall now turn, it seems to me perhaps surprising that it could not have been concluded even obiter that the mother was prevented by her serious ill health and her inability to control M from continuing to provide accommodation.

  43. But there is a countervailing statement which may be said not to be obiter, albeit it is only at first instance, as opposed to at Court of Appeal level, by Stanley Burnton J in Sutton at paragraph 40. As follows:
  44. "the question therefore arises whether J was subject to section 20 when her placement with her father failed on 10 November 2005. Sutton accept that she was a child in need. Section 20 distinguishes between caring and accommodation, but J had lived with, and presumably been cared for by her father. Mr Belamy QC disputed that her father was 'prevented' from providing accommodation. Prevention undoubtedly involves an objective test. It is not satisfied if the factor only that the child does not want to live with someone who is willing to provide suitable accommodation, but circumstances do arise where people are so incompatible that they simply cannot live together. According to Miss Gardiner's witness statement, J's father was unable to offer her accommodation on her release because of the difficult relationship with his partner. The fact that J's placement with her father in November 2005 failed so speedily supports the conclusion on 11 November 2005 he could not provide accommodation for her in these circumstances. Section 21C was satisfied and Sutton was under the duty imposed by that subsection."

    Although the Court of Appeal differed from Stanley Burton J in relation to his finding that the respondent did not owe the relevant duties, a fotori they must have uphold his decision in that regard because without it they could not have gone on to conclude that, contrary to his decision, section 20 duties were owed by the council. Therefore it seems to me that implicitly that statement by Stanley Burnton J must have been approved by the Court of Appeal.

  45. In any event, I prefer the approach of Stanley Burnton J, although I am not necessarily indicating that I support his conclusion, to that of Lloyd LJ. It seems to me on an approach, which is not one effectively of law but really one of fact and common sense. Looking at the facts of this case, and again I emphasise without an assessment and looking really at what is either explicit or implicit in the case note, which I have cited at some length, it seems to me plain that L's mother in this case was prevented from continuing to provide care to her daughter by the fact of her having been assaulted by the daughter and by the fact that the relationship had so badly broken down that she was not prepared to continue to accommodate the child and indeed the child was not prepared to be accommodated by the mother. This was not a question of choice, it was, in my judgment, a question of force of events.
  46. There was, although clearly one is looking for negatives in a note which is not imposed with anything of this kind in mind, one finds nothing in the note which would begin to suggest that the council thought there could could have been any possibility of the child being returned to the mother, or in any way seeking to persuade the mother that she was not prevented from taking the child back. I am satisfied on the facts of this case, at any rate, without an assessment, the position was that the mother was prevented from providing further care or accommodation to L.
  47. I conclude, with only two general remarks, the first is in difference UP TO HERE to Mr Samuel's careful and persuasive submission that to find what happened here fell within section 20 would be either to open the floodgates or to impose on unexcepting - sun suspecting councils duties they did not appreciate they had or obligationings they did not expect to be taking on. This is not a SEPL TPHA*L case, but the law has now been made utterly clear by the authorities, to which I have referred and which I do not - which I have simply been following, or at any rate not differing from. All I have done is interpret the words of the statute. I think there is little doubt that section 20 can well *R could well be a very broad effect effect in that on on facts THOF case there was some doubt about whether the carer was prevented from continuing to look after or provide accommodation for the claimant and I have resolve that issue in favour of the claimant. But on a perhaps even more every day KPEPL . it seem - example it seems to me that section 21 (c) might well be satisfied that if a person who had been caring for the child was preventing simply by financial circumstances from providing the child with suitable accommodation or care. The words are "prevented) whether or not TPERPL TPHEPBTly and for whatever reason] there might be an even for straightforward and ordinary example of a child who can no longer be accommodated by a parent nevertheless falling if otherwise qualifying within section 20 of the Act. But whatever may be the impact and effect of section 20 the statute is on the statute books and is there as a duty alongside section 17 and there is a way in which certainly in the light of the authorities, to which I have referred, a council can protect itself and that is subject always to the potential catch 22, to which I have referred if the circular is right with regard to exceptional circumstances of perhaps a limited to asylum seekers, a council can and should take time before deciding whether the child appears to require accommodation to carry out the relevant assessment. Which will enable the council to see whether what is required is accommodation or only help with accommodation or some other service or assistance. I do not conclude that there is any dramatic or drastic effect of a decision of the authorities, to which I have referred, to my decision. Finally I should deal briefly with the point raised in respect of delay. Mr Samuel has pointed out that strictly speaking, given that I have found that the claimant was a relevant child in 2005 and after the age 18 and has been since then a former relevant child, it sought to have been - ought to have been capable of being resolved at any stage prior to these proceedings whether the defendant council owed the obligation under section 20 and that there was no call for waiting until the claimant instructed the solicitors to bring the proceedings and that there may have been prejudice to the defendant by virtue of the passage of time and the dimming of memories, although I have already indicated that no memories were relevant in this case. What was significant was the contemporaneous notes, which I have recited, but it may be that some witness statement could have been PWRAOUGT PWRO*UGT forward if the case had been brought on nearer the time.
  48. I am told that the question of delay was raised before Dobbs J on the permission application and indeed it is apparent that it was raised on it was available to be taken and therefore almost certainly raised by diligent council on the papers. I am told that Dobbs J gave permission and did not take the course, as is obvious from her order, which is available when delay is a real issue of adjourning the question of permission to come on at the same time as the full application by way of a rolled up hearing, thus preserving the possibility of a need for an extension [of|over] time. It is common ground before me that extension of time is no longer a factor where permission has been given in this case in such a circumstance. Delay therefore only arises if at all on the issue of my discretion in granting relief. I am entirely satisfied, having considered the question of delay, that it does not and should not bar the relief that I otherwise grant. This is a child in need. A duty has been an ongoing duty ever since 2005 and as of now this claimant is in very severe circumstances, I did not mention and do that in addition to her homelessness although she is temporary living with her sister in accommodation that may be suitable or may not that she is now pregnant with a second child, the first being in care. I an collude that I am unaffected by any question of delay and in the balance am not influenced by the degree of prejudice that there has been to the to the defendant to be called to do other than make the order which I make consequently upon my finding that the two battle grounds are both won by the claimant. Consequently I make the orders, which I recited at I give the relief I was grant the relief which I recited at the outset of this judgment, namely I make the declaration that the claimant is a for matter relevant child (ii) I make a mandatory order requiring the defendant to assess her needs and to SRAOEUD a path way plan in accordance with the regulation 8 of the children leading care regulations 2001 and a mandatory order requiring the defendant to appoint a personal adviser. I shall ask council for assistance on the period, the time within which that mandatory order should be come played.
  49. MR WISE: Much obliged for your Lordship's judgment. We have given some consideration to the time limits for complying with the orders that we sought. Plainly there is a balance between action being take inSPAOEZ TKHREU and action being taken correctly. One would not want to have a swift resolution that does not actually meet the needs of my client.
  50. MR JUSTICE BURTON: When is the baby expected?
  51. MR JUSTICE BURTON: December I am told. Taking the issues in sequence, with regarding to the assessment and WA*T WA*EU plan the scheme, as a whole, provides for the assessment to be conducted within 6 months of the child attaining 16 years of age, if they have been an eligible child prior to that. A path way plan as soon as reasonably practicable thereafter. Those are maximum times. We are we would be very reluctant to agree to a period of over three months for that to be done. Having this matter very careful consideration we think six weeks is an appropriate time, my Lord. Judge KUPBLG the personal adviser.
  52. MR WISE: We would say that that can be done much sooner. The personal adviser is a crucial part of the assessment process and is there at least in part to assist the child or the young person, as she now is in the assessment process. The personal adviser must be in place whilst the assessment is being carried out WEFPLT have suggested forthwith and I mean in any event within three weeks - working days in the order. That may be somewhat am PWEURB SHUS we would be agreeable to a week ie 7 days.
  53. MR JUSTICE BURTON: Any other applications.
  54. MR WISE: Only costs we would say follow the event. Costs and a detailed assessment of public funds.
  55. MR SAMUEL: My Lord, can I deal with the timescales. TREUS yeh marsh who filed the statement on the defendant's behalf is here. Unfortunately as luck would have it or ill luck would have it she is on leave for the next fortnight. There are a panel of person advisers we would appoint a personal adviser forthwith. That would be without consultation. As we understand it it is better to consult, but if there is to be a meeting and a meeting with somebody with some real knowledge in the course of these proceedings it would need to await her return. Either in relation to a person adviser either it is now and we appoint somebody from the panel and we can do or if there is to be a neating - meeting. Judge personal advice *ER 3 weeks not one for the reason you have given. Once the personal adviser is in place the period of time for the provision of the assessment?
  56. MR SAMUEL: There will need to be a lot of liaison. We are not entirely sure who has provided assessments to date. Is it the City Council or dark SHEUR. There needs to be a three party meeting with AEU man Dan herself so one can get up-to-date information as to what is going to happen I would not be conducted by tracey marsh she would hand it OEUFR to the leading care team once everything was in place. We talked about 3 months whether that is outside the timescale your Lordship has in mind I know not.
  57. MR JUSTICE BURTON: It would not need to wait for the starting THOF gathering of information would not need to wait for the three weeks assuming three week assist what I order.
  58. MR SAMUEL: It could take place in advance. I think the benefit and the importance of the personal adviser is the person adviser is an integral part of the.
  59. MR JUSTICE BURTON: Of course two or three weeks to gather the information. Are you proposing Miss marsh be the personal adviser?
  60. MR SAMUEL: No that would not be permissible. She cannot.
  61. MR JUSTICE BURTON: Costs? SPOPBD pond the only point I can raise is simply a question of finance and funding is that of course making costs orders against HROEBG authority in these circumstances reduces resources.
  62. MR JUSTICE BURTON: Passes money from one public pocket to another.
  63. A. Indeed it comes out of the public pocket in terms of provisional resources for children and families.

  64. MR JUSTICE BURTON: I do not think that can be a ground for not AUFR TPERs them.
  65. A. I would pray in TAEUD delay point. It has made things difficult. What is being challenged s a decision made in December 2005 two years after at the vent.

  66. MR JUSTICE BURTON: What about three weeks Mr Wise are you moved by the plea add misery.
  67. MR WISE: No the simple reason being the appointment of a personal adviser is not something that require as great deal of consideration. As my learned friend has said, the authority has a panel somebody appropriate from that panel needs to be identified and appointed. That ought to be able to be done within 24 hours frankly. One struggled to see why I KOUT TPHOLD be done by tend of the week.
  68. MR JUSTICE BURTON: You said 7 days. Aim not going to give you less than 7 days. What is today. Today is WEPBDZ. - Wednesday,.
  69. MR WISE: The reason I say that is if Miss marsh son leave next week it can be done next week.
  70. MR SAMUEL: We do not have a difficulty with appointing a personal adviser now. What that will mean is that it will be somebody from the panel without consultation. Strictly speaking there does not have to be consultation, but our history of working with her shows.
  71. MR JUSTICE BURTON: Am I right in understanding that Miss marsh has come along today out of interest and involvement is on leave.
  72. A. I am on leave from Friday.

  73. MR JUSTICE BURTON: Friday is Friday. I would have thought you can have a bit of a go. There can be an input from Miss marsh before she goes I am going to say a week. Input from Mrs marsh before she going certainly consultation is sensible.Ly say 8 weeks from the assessment.
  74. MR WISE: We are content with 8 weeks. This may not be contentious. We would ask that the claimant's solicitors be served with notification of the identity of the personal adviser and a copy of the assessment and path way plan. SPOBD SPOPBD if that is what the claimant would wish we would not have difficulty with that.
  75. MR WISE: I am obliged. One final thing your Lordship said assessment within 8 weeks and path way plan within 8 weeks. I am AB obliged. Costs as sought, my Lord.
  76. MR JUSTICE BURTON: Yes. And your legal aid assessment. Thank you very much indeed for educating me


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