A and B (minors, by their uncle and litigation friend M) v Manchester City Council
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 01 March 2021 |
| Neutral Citation | [2021] EWHC 455 (Admin) |
| Date | 01 March 2021 |
| Docket Number | Case No: CO/3834/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 455 (Admin)
His Honour Judge Stephen Davies sitting as a High Court Judge
Case No: CO/3834/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
Manchester Civil Justice Centre
Ben Mansfield (instructed by JMW Solicitors, Liverpool) for the Claimants
Hilton Harrop-Griffiths (instructed by City Solicitor, Manchester) for the Defendant
Hearing date: 16 February 2021
Date draft judgment handed down: 23 February 2021
APPROVED JUDGMENT
This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on BAILII. The date and time for hand-down is deemed to be 2 p.m. on Monday 1 March 2021.
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Stephen Davies
| Section | Paragraphs | |
| A | Introduction and summary of decision | 1 – 10 |
| B | The claimants, their family and religious faith | 11 – 26 |
| C | The re-amended grounds of claim | 27 – 33 |
| D | The legal framework | 34 – 63 |
| E | Relevant events and evidence | 64 – 84 |
| F | Discussion and judgment | 85 – 114 |
| G | Conclusion | 115 |
A. Introduction and summary of decision
This judicial review claim [ JR] concerns two brothers (the two claimants, whose identities are anonymised as A and B) who form part of a family and wider community of strict 1 orthodox Haredi 2 Jews living in north Manchester. Their parents are anonymised as X and Y and have 4 other children. Their litigation friend is their uncle, anonymised as M. His position, and the claimants' case as advanced through him, is the same in all material respects as that of the parents. In this judgment I shall refer to the claimants when I refer to the case as advanced on their behalf and to the boys when I refer to them as individuals.
In short, the claimants challenge the decision by the defendant as the relevant local authority to offer respite placement accommodation for the boys in a residential home in the Greater Manchester area, known as Birtenshaw, instead of in an exclusively orthodox Jewish residential home in the London area, known as Bayis Sheli. The claimants contend that if placed in Birtenshaw the boys will be unable to manifest their strict orthodox Jewish faith, whether by complying with kosher dietary laws or by fully observing the Sabbath and other holy days.
The claim raises the issue as to whether or not the decision is public law unreasonable, in the context of the statutory background of Part III of the Children Act 1989 ( CA 1989) against which the decision was made, and the further issues as to whether or not the decision is contrary to Articles 8, 9 and/or 14 of the European Convention for Human Rights ( ECHR) and/or relevant provisions of the Equality Act 2010 ( Eq A 2010).
It is important to state and record at the outset that: (a) the defendant does not challenge in any way the boys' right to manifest their strict orthodox Jewish faith; (b) the defendant has worked closely with Birtenshaw to prepare a care plan which would enable the boys to manifest their faith at Birtenshaw as far as considered practicable; (c) there has been close dialogue and co-operation between all parties, assisted by Rabbi Sofer 3, to whom the parents and M defer in relation to matters of religious compliance, with a view to seeking to reach agreement; (d) the claimants and Rabbi Sofer are not opposed in principle to a placement at Birtenshaw and the defendant is not opposed in principle to a placement at Bayis Sheli. The issues which divide them are: (i) whether the arrangements proposed for the placement at Birtenshaw will sufficiently allow the boys to manifest their faith; and (b) whether the advantages of the boys being placed close to the family home and schools outweigh the advantages of the boys being placed in Bayis Sheli where there is no impediment, and every opportunity, to their being fully able to manifest their faith.
It is also important to state and record at the outset that this is not a case where the defendant has any objection to Bayis Sheli on the grounds of comparative cost. Indeed, it appears that the costs of accommodation at Bayis Sheli are no greater than those at Birtenshaw. Further, although there has been some recent suggestion by the claimants that the facilities at Birtenshaw are not comparable to those at Bayis Sheli and that there are some other causes for concern, these do not form part of the pleaded case and I disregard them. The witness statement of Ms Barnes, Birtenshaw's deputy chief executive in charge of operations, explains that it is a charitable pioneering organisation, founded by parents who did not wish to send their own disabled children to institutions far from home, and I am satisfied there is no basis for any criticism of Birtenshaw as an establishment or of its ethos or of its staff. The same is also true of concerns previously expressed by the defendant as to Bayis Sheli. This case is concerned with principled positions taken by both parties which are, I am sure, adopted and maintained in good faith by both parties.
I have had the benefit of reading the witness statements filed on behalf of the claimants and the defendant, including statements from the parents, the uncle, Rabbi Sofer, the responsible social worker Ms Shaw and a representative of Birtenshaw. I also had the benefit of reading a report by an independent social worker ( ISW), Ms Stubbs, in which she considered the boys' capacity and competence to perform certain tasks relevant to the manifestation of their faith. I have also been referred to relevant documents and to the relevant legal materials by counsel and I am extremely grateful to them both for their measured and helpful submissions
It is clear that the claimants face a high hurdle to persuade me that the defendant's decision is one which is not reasonably open to a local authority, acting responsibly in accordance with the statutory scheme under the CA 1989, and it is also clear that the arguments under the ECHR and Eq A 2010 raise fact sensitive issues where there is room for legitimate disagreement.
There are also important differences as between the position of the two boys. As regards A, it is agreed that there should be a 12 week placement for assessment with some weekend home stays or visits The only two issues are whether the placement should be at Bayis Sheli or at Birtenshaw and whether it should be under s.20(1)(c) or s.20(4) CA 1989. As regards B, it is now agreed that he should remain at home for the present time, although whereas the defendant proposes a once fortnightly overnight respite stay at Birtenshaw the claimants propose a once fortnightly full weekend stay at Bayis Sheli together with respite placement at Bayis Sheli during school holidays. There is also a disagreement as to whether B's placement should be under s.20(1)(c) or s.17(6) CA 1989.
On the particular facts of this case I have concluded that:
(a) The defendant's decision in relation to A, to offer a 12 week assessment placement at Birtenshaw, is public law unlawful and in breach of his ECHR rights.
(b) The defendant's decision in relation to B, to offer a once a fortnight overnight stay at Birtenshaw, is neither public law unlawful nor in breach of his ECHR rights or contrary to the Eq A 2010.
I also make some wider observations in section F below which I hope will be of some assistance to the parties going forwards.
B. The claimants, their family and religious faith
A is 15 years, turning 16 in June 2021. B is 11 years, turning 12 in Sept 2021.
They both have a number of medical and behavioural conditions which require a very high level of supervision.
In summary, A has a diagnosis of congenital hypothyroidism, expressive language disorder, attention deficit hyperactivity disorder with difficult behaviours and an intellectual disability due to mutation on the KDM5C gene. These are long-term impairments. He functions at a much younger primary school age than his true age. He does not use verbal communication and uses signs, symbols and Makaton (an integrated language programme designed for persons with learning disabilities) to communicate. He struggles with sleep and can be awake from 3am. He can and does on occasions act violently towards his siblings and towards his parents, his mother in particular.
B also has a diagnosis of congenital hypothyroidism, expressive language disorder, an intellectual disability due to mutation on the KDM5C gene, as well as epilepsy. He is incontinent. He also does not use verbal communication and uses body language, facial expressions, gestures and symbols to communicate. He also struggles with sleep and can be awake from 4.30am. He also can and does on occasions act violently towards his siblings and his parents, again towards his mother in particular. He is impulsive and is liable to run out of the house and into the road with no awareness of danger from traffic.
The four other children range in age from 16 years to 3 years. Three of them have additional needs. The father works full time to support his family and is also heavily engaged in religious observances. It follows that the burden of looking after the 6 children falls most heavily on the mother and is not surprising that this burden is an exhausting one and has led her at times to feel overwhelmed and unable to cope.
Nonetheless, there is no suggestion that the parents are anything other than caring and devoted parents towards the boys and that they want only...
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