R GE (Eritrea) v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Sir Bernard Rix,Lord Justice Davis |
| Judgment Date | 20 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1490 |
| Docket Number | Case No: C4/2013/2473 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 1490
Lord Justice Davis
Lord Justice Christopher Clarke
and
Sir Bernard Rix
Case No: C4/2013/2473
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR C M G OCKLETON, VICE PRESIDENT OF THE UPPER TRIBUNAL
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/7378/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Joshua Dubin (instructed by Scott Moncrieff & Associates Ltd) for the Appellant
Paul Greatorex (instructed by Bedford Borough Council) for the Respondent (Bedford Borough Council)
Hearing date: 8 th October 2014
The background
The claimant – GE – is a national of Eritrea. She arrived in the United Kingdom on 24 May 2011. At her screening interview she said that she was born on 27 September 1994. If so, she was just over 16 1/2. She claimed asylum, saying that she feared persecution if she returned to Eritrea. The Secretary of State's officials decided that her physical appearance and demeanour very strongly suggested that she was 18 years of age or over. So she was detained at Yarls Wood Immigration Removal Centre. On 11 July 2011 her asylum claim was refused. The Secretary of State proposed to remove her to Italy under Dublin II arrangements.
On 3 August 2011 GE issued proceedings against the Secretary of State by which she challenged the treatment of her as an adult, her detention and the proposed removal to Italy due to take place the following day. On the same day Supperstone J ordered the Secretary of State not to remove her from the United Kingdom pending her application for permission to apply for judicial review or further order.
On 18 August 2011 GE's solicitors wrote to Bedford Borough Council ("the Council") asserting that she was a child in need. On 21 September 2011 Lindblom J, on GE's application, ordered that the Council be joined as the second defendant.
On 20 October 2011 Thirlwall J refused GE's claim for interim relief in the form of an order requiring the Council to treat her as a child, i.e. to accommodate and look after her, on the grounds that there were serious inconsistencies on the face of the Applicant's case. But she ordered her release from detention. She refused, however, to release her to the care of the Council. Instead she ordered the Secretary of State to provide her with NASS support and accommodation. Accommodation was then provided for her by UKBA (through NASS) in Enfield, where she remains. On 22 March 2012 Foskett J, on the joint application of GE and the Secretary of State, but against the opposition of the Council, stayed the claim against the Secretary of State pending the application for permission for judicial review against the Council in respect of its refusal to treat her as a child in need and, if permission was granted, the final outcome of the substantive fact-finding hearing on the claimant's age.
On 27 September 2012 GE became, on her account, 18.
On 5 December 2012 Walker J granted GE permission to seek judicial review against the Council.
The claimant, although not a child at the time of the hearing on 23 May 2013 —before Mr CMG Ockleton, sitting as a Deputy High Court judge —claimed that the Council nevertheless owed her duties as a " former relevant child" under section 23C and following of the Children Act 1989. Whether or not they did owe such duties is the issue in the present claim.
Part III of the Children Act 1989 is headed " Local Authority Support for Children and Families". It sets out, or provides for, a series of duties owed to " children in need". Under section 17 (1) (a) it is the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need by providing a range and level of services appropriate to those children's needs. Section 17 (2) provides that for the purpose principally of facilitating the discharge of their general duty under section 17 every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
Section 17 (10) provides that a child is to 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
(c) he is disabled".
Section 20 provides:
" 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;
(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:
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation."
Section 22 provides as follows:
" 22 General duty of local authority in relation to children looked after by them
(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 stand referred to their social services committee under the [1970 c. 42.] Local Authority Social Services Act 1970.
(2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours."
Section 23 imposes a duty of maintenance in respect of a looked after child as well as other duties. Under section 23:
" (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….;
(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.
…….
(3) Any person with whom a child has been placed under subsection (2) (a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(4) A person falls within this subsection if he is–
(a) a parent of the child;
(b) a person who is not a parent of the child but who has parental responsibility for him; or
(c) where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made.
…..
(6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with–
(a) a person falling within subsection (4); or
(b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare."
The Children (Leaving Care) Act 2000 added sections 23A-E to the Children Act 1989. Their effect is as follows.
Section 23A defines a " relevant child" as a child who (a) is not being looked after by any local authority; (b) was before last ceasing to be looked after an " eligible child" for the purpose of paragraph 19B of Schedule 2; and (c) is aged sixteen or seventeen. The effect of paragraph 19B of Schedule 2 and the relevant regulations – The Care Planning, Placement and Care Review (England) Regulations 2010, regulation 40 – is that, in order to be an eligible child (and hence a "relevant child"), you have to have been looked after by a local authority for a cumulative total of at least thirteen weeks between your 14 th and 18 th birthdays.
Section 23C is headed "Continuing Functions in Respect of Former Relevant Children". A " former relevant child" is defined in subsection (1) thus:
"( a) A person who had been a relevant child for the purposes of s 23A (and would be one if he were under 18) and in relation to whom [the local authority] was the last responsible authority; and
(b) A person who was being looked after by [the local authority] when he attained the age of 18, and immediately before ceasing to be looked after was an eligible child"
The "last responsible authority" is the one which last looked after the child: s 23A (4). The effect of all that is, not surprisingly, that you cannot be a former relevant child unless you have been looked after by a local authority for a cumulative total of at least 13 weeks between 14 and 18.
Section 23C then sets out a series of duties including a duty on the authority to keep in touch with the former relevant child whether he or she is within their area or not: s23C (2) (a); if they lose touch with him, to...
To continue reading
Request your trial
-
The King on the application of AF v Milton Keynes Council
...D) The Discretion to Provide Services 25 The Court of Appeal in R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490 discussed the importance of support services that may be provided to a young person once they have turned 18 under 23C of the 1989 Act at parag......
-
The King (on the application of HP) v The Mayor and Burgesses of the Royal Borough of Greenwich
...Power was authoritatively identified by the Court of Appeal in R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490 [2015] 1 WLR 4123 (§17iii below). I will need to analyse the Discretionary Power (see §§23–24 below), in light of the statutory framework (see ......
-
The Queen (on the application of BM) v London Borough of Hackney
...16 March 2013; it ended on 19 February 2013. v) However, in R (GE (Eritrea)) v Secretary of State for the Home Department and another [2014] EWCA Civ 1490, [2015] 1 WLR 4123, the Court of Appeal held that a person who had been entitled to the provision of assistance by a local authority un......
-
The Queen (on the application of AB) v The London Borough of Ealing
...and what actions are to be undertaken, by whom and for what purposes.” Applicable Case Law 33 In R (on the application of GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490, the Court of Appeal considered that a local authority could use its discretionary power......