H v Wandsworth London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr JUSTICE HOLMAN,MR JUSTICE HOLMAN |
| Judgment Date | 23 April 2007 |
| Neutral Citation | [2007] EWHC 1082 (Admin) |
| Docket Number | CO/6068/2006, CO/6857/2006, CO/10213/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 April 2007 |
[2007] EWHC 1082 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Holman
CO/6068/2006, CO/6857/2006, CO/10213/2006
MR STEPHEN KNAFLER (instructed by (1) Bennett Wilkins (2) Fisher Meredith and (3) Harter and Loveless) appeared on behalf of the CLAIMANTS
MR CLIVE SHELDON AND MISS JUDY STONE (JUDGMENT ONLY) (instructed by Wandsworth LBC) appeared on behalf of the FIRST DEFENDANT
MISS KAREN STEYN AND MS HARINI IYENGAR (JUDGMENT ONLY) (instructed by Hackney LBC) appeared on behalf of the SECOND DEFENDANT
MR BRYAN MCGUIRE (instructed by Islington LBC) appeared on behalf of the THIRD DEFENDANT
MR STEVEN KOVATS (instructed by Treasury Solicitor) appeared on behalf of the INTERESTED PARTY
Introduction and the issue
Despite the precise terms of the orders for directions, three cases have effectively been heard together. They are unconnected on their facts, but involve a common question of law: can a local authority who do provide accommodation to a lone child in need determine or specify that they do so in exercise of a power under section 17 of the Children Act 1989 (the Act) when, on the facts of the case, they are also under a duty to do so under section 20 of that Act?
The relevance and significance of the issue on the facts of these three cases is that it affects the classification of the child concerned at the moment he/she attained 18. This in turn may have a considerable effect on what services the local authority (or in one of the cases, the National Asylum Support Service) must or may provide to him/her between the ages of 18 and 21 or even, for some purposes, 24.
I will for convenience call them the Wandsworth, Hackney and Islington cases respectively. In the Wandsworth case, permission had already been granted to apply for judicial review and it was treated as the lead case. I hereby grant permission to apply in the Hackney and Islington cases.
The statutory framework
Several of the relevant provisions have been amended and I quote them in their current form. They all fall within Part III of the Act, headed: "Local authority support for children and families". The contrast is with Part IV under which a local authority, empowered by statute or a court order (eg a care order), can impose outcomes on children. Part III is principally to do with the powers and duties of a local authority to offer and provide services to and for children; but, and this is important to an understanding of this case, no support or service can be imposed or foisted upon a child if, being of sufficient capacity, he does not wish to accept or receive it. (Section 25 which concerns secure accommodation is a very significant exception to the generality of the above, but not germane to the present cases.)
So far as is material section 17 provides as follows:
"(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 I 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.
…
(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a) ascertain the child's wishes regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.
…
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
…
(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 …"
So far as is material, section 20 provides as follows:
"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.
…
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain."
I summarise and paraphrase, rather than quote, sub-sections (7) and (8) of section 20. Essentially (and very importantly) these sub-sections prevent a local authority from accommodating a child under Part III against the will of a parent (compare the compulsion under Part IV). What is relevant to the argument in the present cases is that sub-section (11) then provides:
"(11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section."
Section 22 is headed "General duty of local authority in relation to children looked after by them", and so far as is material provides as follows:
"(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 are social services functions within the meaning of the Local Authority Social Services Act 1970 apart from functions under sections 17, 23B and 24B.
…
(3) It shall be the duty of a local authority looking after any child—
(a) to safeguard and promote his welfare; and
(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
…
(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a) the child;
…
regarding the matter to be decided.
(5) In making any such decision a local authority shall give due consideration—
(a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain; … "
Section 23 is headed "Provision of accommodation and maintenance by local authority for children whom they are looking after", and so far as is material provides:
"(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 (subject to section 49 of the Children Act 2004);
(aa) maintaining him in an appropriate children's home;
(f) making such other arrangements as—
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State."
I do not propose to set out verbatim any of sections 23A to 24D, nor paragraph 19B of Schedule 2 to the Act. They are very important to the case, but not to the issue of law which has arisen, although I will briefly have to make further reference to paragraph 19B in relation to the Islington case.
These provisions have the effect that a child who has been looked after for more than a prescribed period of 13 weeks when he attains the age of 18 becomes on that date a "former relevant child". The local authority then have a range of powers and duties under the leaving care provisions to prepare a pathway plan and appoint a personal adviser for him, and to provide a range of services and support, including...
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