Ms Maryam Mohamoud v Royal Borough of Kensington and Chelsea (First Respondent)

JurisdictionEngland & Wales
JudgeLady Justice Sharp,Lady Justice Black,Lord Justice Longmore
Judgment Date21 July 2015
Neutral Citation[2015] EWCA Civ 780
Docket NumberCase No: B5/2014/0891
CourtCourt of Appeal (Civil Division)
Date21 July 2015

[2015] EWCA Civ 780

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM:

THE COUNTY COURT AT CENTRAL LONDON

DEPUTY DISTRICT JUDGE SMITH

2WT01289

THE COUNTY COURT AT WANDSWORTH

DISTRICT JUDGE HUGMAN

4PA31546

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Longmore

Lady Justice Black

and

Lady Justice Sharp

Case No: B5/2014/0891

B5/2014/3533

Between:
Ms Maryam Mohamoud
Appellant
and
Royal Borough of Kensington and Chelsea
First Respondent
Ms Bushra Saleem
Appellant
and
The Mayor and Burgesses of the London Borough of Wandsworth
Second Respondent

Mr Stephen Knafler QC and Mr Toby Vanhegan (instructed by TV Edwards LLP) for the Appellants

Mr Christopher Baker and Mr Sam Madge-Wyld (instructed by Department of Legal Services) for the Royal Borough of Kensington and Chelsea

Mr Stephen Evans and Ms Angela Hall (instructed by Borough Solicitor for Wandsworth (Legal Services)) for The Mayor and Burgesses of the London Borough of Wandsworth

Hearing date: 13 January 2015

Lady Justice Sharp

Introduction

1

The appellants in these conjoined appeals, Ms Maryam Mohamoud (M) and Ms Bushra Saleem (S), were given temporary accommodation by the local authority respondents on the ground that they were homeless and in priority need because they had dependent children. Their individual circumstances were then assessed. In each case it was determined that the appellants were intentionally homeless within the meaning of the relevant provisions of Part VII of the Housing Act 1996 (the 1996 Act); the local authority then took steps to regain possession of the accommodation that had been provided, possession proceedings were begun in the county court and though those proceedings were defended on a number of grounds, including that the making of an order for possession would breach the appellants' rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), orders for possession were ultimately made.

2

Permission to appeal was granted to each appellant by the court below on one ground only: that the judge was wrong in law to decide that the respondent local authority had complied with its duty under section 11 of the Children Act 2004 (the 2004 Act). The possession orders were stayed pending the resolution of these appeals, and the appellants remain in the temporary accommodation they were provided with (in M's case in 2012, and in S's case in 2013). S was given permission to appeal on one further ground, which was that the District Judge erred in finding that the duty to assess the needs of her children under sections 17 and 20 of the Children Act 1989 (the 1989 Act) did not arise until the possession order was made, but this ground has not been pursued on this appeal.

3

The argument for the appellants is that local authorities are required by section 11(2) of the 2004 Act to have proper arrangements in place to ensure that their officers treat the best interests of children as a primary consideration whenever they discharge their local authority functions. The respondents had no such arrangements in place; they did not, as they were obliged to do by section 11, conduct a Children Act assessment of the children concerned, and they did not therefore treat the best interests of the children as a primary consideration when seeking their eviction. It follows that the relevant functions under Part VII of the 1996 Act, were not carried out in accordance with the law for the purposes of article 8 of the Convention.

4

The respondents however submit that the duty arising under section 11(2) of the 2004 Act is simply an overarching strategic obligation, giving rise to no individually enforceable rights. In any event, local authorities are not required to carry out a Children Act assessment to lawfully exercise their functions under Part VII. On the facts, the local authorities complied with their duty under section 11(2) of the 2004 Act and/or consideration of the children's best interests did not or should not result in the court failing to give effect to the respondents' unqualified right to possession under Part VII of the 1996 Act. Insofar as the appellants seek to challenge the general arrangements that were in place, in relation to the respondents' duties under section 11(2) of the 2004 Act, this was not an argument raised below and should form no part of this appeal.

Section 11 of the Children Act 2004

5

Section 11 of the 2004 Act places duties on a range of organisations and individuals, including by section 11(1)(a), local authorities, to ensure their functions and any services they contract out to others, are discharged with regard to the need to safeguard and promote the welfare of children. It provides in part that: This sectionnoteType=Explanatory Notes has no associated

"(2) Each person and body to whom this section applies must make arrangements for ensuring that —

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children…

(4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State."

6

The current statutory guidance issued by the Secretary of State pursuant to section 11(4) of the 2004 Act and a number of other statutory provisions is " Working together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children" (the 2013 Guidance) in effect from April 2013. It contains practical examples of the type of arrangements that are required by the section 11(2) duty in a chapter which deals specifically with section 11 (Chapter 2, which is headed: "Organisational Responsibilities"). The organisational arrangements referred to in Chapter 2 include matters such as clear lines of accountability for the commission and provision of services, leadership responsibility and a culture of listening: see para 2.4. The only reference to housing in Chapter 2 (at page 53) says:

"Housing and homelessness services in local authorities and others at the front line such as environmental health organisations, are subject to the section 11 duties set out in paragraph 4 of this chapter. Professionals working in these services may become aware of conditions that could impact on children. Under Part 1 of the Housing Act 2004, authorities must take account of the impact of health and safety hazards in housing on vulnerable occupants, including children, when deciding on the action to be taken by landlords to improve conditions. Housing authorities also have an important role to play in safeguarding vulnerable young people, including young people who are pregnant or leaving care."

7

In Castle and ors v Commissioner of Police for the Metropolis [2012] 1 All ER 953, one of the issues that arose was whether the defendant's decision to contain and therefore to detain children when authorising the containment of a demonstration, constituted a breach of his duty to safeguard their welfare under section 11(2) of the 2004 Act (as a chief police officer he was under such a duty by virtue of section 11(1)(h) of the 2004 Act). The application for judicial review failed. However the Divisional Court (Pitchford LJ and Supperstone J) rejected the argument that the section 11(2) duty only obliged the defendant to make arrangements with a view to ensuring that the relevant policing functions were discharged having regard to the need to safeguard and promote the interests of children.

8

Pitchford LJ giving the judgment of the court concluded that section 11(2) of the 2004 Act requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children. He said at paras 50 and 51:

"50. …it is apparent that the thrust of the statutory guidance is towards institutional understanding of the statutory need and its application by senior decision makers. We do not, however, consider either that the statutory guidance is concerned only with training and information, or that it does not apply to the manner in which police functions are exercised.

51. It would, we think, be surprising if the obligation imposed upon a housing authority or an immigration caseworker should be different from that imposed upon the wide range of organisations and individuals specified in section 11(1) of the 2004 Act, particularly local authorities and the police. It was the strongly expressed obiter view of the Supreme Court in In re E and ZH that the purpose of section 11 was to incorporate within domestic law the spirit of the United Kingdom's international obligations towards children stated in Art. 3.1 of the UNCRC. The Court was explicit in its statements that the statutory duty was to ensure that public functions were performed having regard to the need to safeguard and promote the welfare of children. We conclude that Mr Westgate is right. The chief officer's statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare. This does not mean that the duties and functions of the police have been re-defined by section 11. Chapter 2.4 of the statutory guidance, to which the chief must also have regard, 1 makes that explicit. In our view the guidance accurately states the obligation of chief officers of police "to carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children".

9

He went on to say:

...

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