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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 >> Blackburn-Smith v Lambeth London Borough Council  EWHC 767 (Admin) (04 April 2007)
Cite as:  EWHC 767 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JACBETH BLACKBURN-SMITH
|- and -
|LAMBETH LONDON BOROUGH COUNCIL
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jon Holbrook (instructed by Sternberg Reed) for the Defendant
Hearing dates: 20th March 2007
Crown Copyright ©
Mrs Justice Dobbs :
THE CLAIMANT'S SUBMISSIONS
i) Mrs Blackburn- Smith is unlawfully present in the United Kingdom.
ii) As such she is barred from support under a number of social services statutes set out in paragraph 1 to schedule 3 of the Nationality Immigration and Asylum Act 2002. That includes services to adults under Part III of the Children Act 1989;
iii) The two children are eligible for support. By paragraph 3 of the schedule support can be provided to an adult to the extent necessary to avoid a breach of human rights.
iv) The Claimant's application for accommodation with her children is made under section 17 (3) of the Children Act 1989. There is no suggestion of her having a need for care and attention within the meaning of section 21 of the National Assistance Act 1948.
v) A child without accommodation is a child in need (See: sections 17, 20 and schedule 2, paragraph 10 of the Children Act 1989). Furthermore, in performing its duty the authority is required to promote family life. (See: schedule 2 paragraph 10 in particular, and the qualifying words to section 20).
vi) Separation of mother and child would be an interference with private or family life, which would require an Article 8(2) justification: J v The London Borough of Enfield  EWHC Admin 735; Anufrijeva v London Borough of Southwark,  QB 1124 CA 54 at para.43.
vii) The offer of tickets back to Jamaica would only be appropriate on the basis that the authority were satisfied that the children would cease to be in need and this assessment involves detailed and circumstantial inquiry: (See: M v Islington at paragraphs 46 and 49). Furthermore they would have to act in light of the Claimant's convention rights.
i) On 18th May 2006, the children were in need. In the absence of the parents being able to provide accommodation, by virtue of Section 20 the local authority must do so. Moreover, the local authority is under a duty to enable their mother to live with them. To separate them from the mother would require justification under Article 8(2) of the ECHR. Additionally, as the children were in need, the Defendant was obliged to carry out an assessment (in the form of a fresh assessment) of their needs under the Children Act and a human rights assessment. The assessment process must meet the requirements identified by Buxton LJ at paragraphs 46 and 49 of his judgment in R (M) v Islington LBC  1 WLR 884. No point is taken however on the issue of the children's citizenship. The absence of a lawful Children Act assessment and human rights assessment is, it is submitted, fatal to local authority's case.
ii) This assessment must be done before any decision can be taken to discharge their duty by offering tickets to the mother to enable her to return to Jamaica. The assessment has not been done. The original assessments were irrelevant as they were written on the premise that the children were not in need. The "Islington" case lays down the test of what they should do, when considering return to Jamaica.
iii) The cases of R(Kimani) v Lambeth LBC  1W.L.R. 272 and R (Grant) v Lambeth LBC  1 WLR 1781 relied on by the Defendant can be distinguished. In the former the issues before the court were different and in the latter an unchallenged assessment had been made that it would be in the interests of the children to return to Guyana, the only issue being the power to provide a ticket under the Local Government Act 2000.
iv) That being the case, the decision on 18th May 2006 to stand by the decision of 3rd May not to provide further support is unlawful, perverse and irrational.
v) Further it is submitted that the fact that the Defendant purported to carry out a further exercise of investigating Article 8 rights is itself an implied admission that the decision of 3rd /18th May to cease support, did not address or address sufficiently Article 8 issues and as such was defective. Lambeth should have either stood by its decision or withdrawn the decision and approached the issue afresh.
vi) The Defendant erred in law in identifying what questions needed to be answered. The issue they were required to investigate was whether accommodating the mother with her children could or should cease having regard to the obligation to promote family life (See sections 17, 20 and schedule 2 paragraph 10 of the Children Act 1989), Article 8 of the ECHR and the human rights exception in schedule 3 to the Nationality Immigration and Asylum Act 2002. This is not the question it asked itself, therefore the present decision of the Defendant to stand by the original decision was wrong in law.
"The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it was permitted by law – in this instance the Human Rights Act 1998. In performing this exercise the court has to bear in mind that, just as individual states enjoy a margin of appreciation which permits them to respond within the law, in a manner which is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention…."
- Too much reliance cannot be placed on the concession made in R (J) v. LB Enfield  EWHC 432 (Admin), paragraph. 48, that on the facts of that particular case, the separation of mother and child would constitute an infringement with the right to family life under Article 8(1), as it is not clear from the facts why the concession was made. It is submitted that at the time of the above case, Section 17(6) of the Children Act had not been amended to include accommodation; no issue was raised about the Claimant being unlawfully in the UK and being able to return to Ghana. In paragraph 48 of Kimani the Court of Appeal found that the case of J did not assist them because there was no issue about whether the Claimant could return to Ghana; additionally, Schedule 3 to the 2002 Act was not in force then.
- Paragraph 24 of Kimani sets out the objective of Schedule 3 of the Act, namely to discourage those who can be expected to look elsewhere from entering and remaining in this country and consuming its resources. Reliance is placed on paragraph 49 of the judgement for the proposition that there would be no impediment to the Claimant returning to Jamaica and no infringement of her Article 8 rights. Whilst it is accepted that there are other authorities where the test is not so clear cut, it is still submitted that the Defendant was entitled to find that she could return to Jamaica with the children.
- Paragraph 24 of R (M) v Islington LBC,  1 WLR 884 is relied on for the proposition that i) Article 8 does not create a direct right to enter or remain in any particular country and ii) if family life can be reproduced in the country of removal, it is difficult to see how Article 8 bites, as it creates no right to enjoy family life in one country rather than another. Dealing with the paragraphs of the judgement relied on by the Claimant (46 and 49), it is submitted that the Defendant was confident that the Article 8 and other rights of the children or the Claimant would not be infringed by her return to Jamaica and that the children would cease to be in need
- Paragraphs 29-31 of R (Grant) v Lambeth LBC  1 WLR 1781 establish the proposition that the threshold to be passed in successful reliance on Article 8 is high; that Jamaica is not an unknown land being a country to which people both willingly and less willingly return. The offer of tickets for the Claimant's return to Jamaica with her children has safeguarded her Article 8 rights, particularly in the light of the fact that she has no right to be accommodated in this country.
- Relying on the cases of Kimani and Grant, it is submitted that Article 8 is not really engaged, as the Claimant is merely saying that she prefers to live in this country with her children rather than Jamaica. It is pointed out that at no time has she ever raised any real convention reasons as to why she cannot return to Jamaica. The conclusions of the assessments have never properly been challenged at any time. She simply states that her children are British and she wishes them to be brought up in this country.
- The court should be wary of "over zealous textual analysis" of the assessments: LBC Lambeth v. Ireneschild  EWCA Civ 234 at paragraph 57.
- The assessments were thorough; the relevant matters were set out and the conclusions and decision were based on those factors.
- The view formed that the Claimant could return to Jamaica with the children was based on enquiries they had made as well as information in their possession about Jamaica. The assertion that the Claimant could return to Jamaica was never really challenged and no reasons were given for why this conclusion was wrong. There is a reference by the Claimant to serious problems for the children but they are unspecified. The Claimant has not disputed the finding that she could get housing, welfare and/or a job on return.
- The Claimant and her legal advisers have known since the assessments were served in early February 2006 what the issues were and yet have not sought to challenge them either in correspondence or using the statutory complaints procedure.
- Enquiries into the relationship between the father and the children show that the relationship is superficial and likely to diminish with time, because the children have no contact with the father. There are means of communication even when abroad which could be fostered, should there be a change in attitude. There is therefore no breach of his or the children's Article 8 rights.
- The assessments did envisage the situation of the children being in need and addressed it both in relation to this country and to Jamaica. The options were set out, namely placement with the father or relatives; return by the Claimant to Jamaica and, failing that, taking them into voluntary care. If, however, the Claimant refused any of the options and the effect was that the children would be on the streets, then the Defendant would have to consider its duty and powers to institute formal care proceedings.
- The assessments need to be looked at against the background of the lack of cooperation by the Claimant, her ex-husband and his relatives. The Claimant declined to provide social services with the children's father's phone number; the father failed to appear for appointment/s made despite having received the correspondence requesting a meeting; the relatives would not assist the Defendant and the Claimant gave only limited information.
- The conclusion that the Claimant was able to turn to others for support was a proper one based on the fact that up until January 2006 the Claimant was declining to accept the £35 per week subsistence payment, claiming that a) it was too little and b) that it was demeaning. Despite this, she was able to live without this assistance. She has more recently been in receipt of benefits by virtue of the children's status. Despite many requests for information as to the source of the support, no explanation has been forthcoming. (Pages 195,207,211,214)
" Parliament intended the local authority to be the judge of fact…… great restraint should be exercised by giving leave to proceed to judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in this case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity….. Where the existence or non existence of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
DISCUSSION AND FINDINGS
Were the children in need on 18th May 2006?
Was the Local Authority under a duty under Section 17 of the Children Act 1989 to provide support by way of accommodation and subsistence to a) the children and b) the Claimant?
"(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."
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include [providing accommodation and]4 giving assistance in kind or, in exceptional circumstances, in cash."
"(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."
No other provision has been drawn to the court's attention to suggest that the Defendant was under a duty to accommodate both mother and children.
Should the Defendant have exercised its powers under Section 17 to accommodate both the children and the Claimant together?
"Islington would have to bear three considerations in mind before it could lawfully discharge its Children Act duty by an offer of tickets rather than by providing support, including accommodation, in the United Kingdom. First, it would have to be confident that the child will cease to be "in need" if removed to Guyana. Wilson J, who has unrivalled experience in these matters, pointed to the detailed and circumstantial enquiry needed in this case, none of which appears to have taken place. Second, the various parties' Convention rights must be respected in any action taken under the Children Act, just as they are relevant to putative action under the Regulations. The considerations set out in §46 above remain directly in point. Here again, because what is in issue is the state's positive obligation under Article 8 of the Convention to protect family life (see for instance Marckx v Belgium Case 6833/74 at §31), Islington would have to act in the light of that obligation, and not simply reach a decision that is not Wednesbury unreasonable. Third, Islington would have to bear in mind the implications of seeking to remove a British citizen from the United Kingdom, as indicated in §30 above".
i) Article 8 does not confer a right of abode in a particular country (Paragraph 24 of R (M) v. Islington LBC,  1 WLR 884);
ii) Article 8 does not confer an absolute right that all family members must live together (R (Mahmood) v. Home Secretary);
iii) The relationship between the children and their father is almost non-existent, but in any event contact can be maintained from abroad if desired;
iv) The Claimant does have the option to go to Jamaica together with her children.