R (on the application of Liverpool City Council) v Hillingdon London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Wilson,Lord Justice Rix |
| Judgment Date | 10 February 2009 |
| Neutral Citation | [2009] EWCA Civ 43 |
| Docket Number | Case No: C1/2008/1738 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2009 |
[2009] EWCA Civ 43
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGHT COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Mr James Goudie QC, Sitting as a Deputy Judge of the High Court
Before : Lord Justice Rix
Lord Justice Dyson
and
Lord Justice Wilson
Case No: C1/2008/1738
Lower Court No: CO/5939/08
Mr Bryan McGuire and Miss Peggy Etiebet (instructed by City Solicitor, Liverpool) for the Appellant
Mr Hilton Harrop-Griffiths (instructed by Legal Services, London Borough of Hillingdon) for the Respondent
Mr Adam Fullwood (instructed by Jackson and Canter, Liverpool) for the Interested Party
Hearing date: 16 January 2009
Lord Justice Dyson:
The principal issue that arises on this appeal is whether the London Borough of Hillingdon (“LBH”) discharged its duty under section 20(1) of the Children Act 1989 (“the CA”) in relation to the provision of accommodation for AK. It contends that it did and that, AK now being a child in need in the area of Liverpool City Council (“Liverpool”), the duty under section 20(1) of the CA lies on Liverpool. We are told that disputes between local authorities of the kind that have arisen in the present case are not uncommon. So far as is material, the deputy judge held that (i) LBH did discharge its duty under section 20(1), and (ii), even if it did not discharge its duty and remained responsible for the provision of accommodation for AK, Liverpool was also responsible for the provision of accommodation for AK.
The facts
AK is a national of Pakistan. On 7 April 2008, he arrived in the United Kingdom illegally and with a false passport. He claimed asylum in Liverpool on 9 April. On the same day, Liverpool carried out an age assessment of him in order to ascertain whether he was a child. He said that he was 15 years of age, having been born on 4 April 1993. On 9 April 2008, Liverpool assessed him as an adult with a date of birth of 4 April 1990. On the basis of that assessment and after a screening interview on 14 April with its Asylum Screening Unit, Liverpool referred him to the Home Office Agencies, the National Asylum Support Service (“NASS”) and the Border and Immigration Agency.
AK was accommodated by NASS in the Liverpool area. He was then moved to Campsfield Detention Centre in Oxfordshire and from there to the Harmondsworth Detention Centre, which is in the area of LBH. He was interviewed at Harmondsworth on 25 April. Although both these centres are for adults, AK continued to maintain that he was a child.
His asylum claim was dismissed on 28 April and he appealed. An important issue in the appeal was whether AK was a child, because the fast track procedure in the Asylum and Immigration Tribunal cannot be applied to a child. AK's solicitors obtained a report from a Dr Birch dated 6 May which assessed him as being 15 years of age. Immigration Judge Kebode accepted the opinion of Dr Birch and transferred the case out of the fast track. Nevertheless, AK's appeal was dismissed by the immigration judge by a determination promulgated on 14 May.
Meanwhile, a dispute had arisen between LBH and Liverpool as to which authority had responsibility for AK. On 7 May, there was a telephone conversation between Beth Hearst, Team Leader of the LBH Social Services, and Deborah Shannon, a senior social worker at Liverpool. Each contended that the other's authority was responsible for AK and, in particular, for re-assessing his age. LBH contended in these proceedings that Liverpool agreed to accept responsibility for the re-assessment, but the deputy judge found that there was no such agreement. There is no appeal against that finding. It has at all material times been common ground that, in view of the conflict between the original age assessment made by Liverpool and the decision of the immigration judge to accept the opinion of Dr Birch, a re-assessment was necessary. The need for a re-assessment of age in such circumstances is recognised by para 14(b) of the “Age Assessment Joint Working Protocol between the Immigration and Nationality Directorate and the Association of Directors of Social Services” dated 22 November 2005.
It is unnecessary to set out in detail the communications that passed between LBH and Liverpool during May. The dispute as to which of them was responsible for AK was not resolved. It is sufficient to note that on 13 May, the Social Services Solicitor of LBH wrote to the Assistant Solicitor to Liverpool's Supported Living and Education Group saying that Liverpool had a legal obligation to state why it accepted or disagreed with the new evidence about AK's age and claiming reimbursement “for the costs of the accommodation provided to your client on your behalf”. On 14 May, Ms Hearst wrote to the Duty Manager of the Liverpool Asylum Team saying that AK had expressed a wish to return to Liverpool where he had been resident before he was detained. The letter stated that AK had told LBH that he felt safe in Liverpool, an area with which he was familiar and where he was normally resident. The letter concluded with a request that “you discharge your duties towards this young person as directed by the Children Act 1989”. Revealingly, Ms Hearst states at para 14 of her witness statement:
“Hillingdon Social Services provided accommodation under S17. No assessments were undertaken as it was our belief that we were providing accommodation only for [AK] pending Liverpool Social Services arranging to reassess him.”
Liverpool did not accept that it had any duties under the CA.
AK's wish to return to Liverpool had been elicited from him at an interview of him on 13 May by a LBH social worker with the aid of an interpreter. Of this interview, Ms Hearst says at para 9 of her witness statement:
“On 13 May 2008 our duty Social Worker and an interpreter spoke with [AK]. [He] was very clear that he wanted to return to Liverpool because it is the area that he knows and feels safe in. The duty Social Worker called [AK's] Solicitor who confirmed that [he] wanted to return to Liverpool and that he had written to Liverpool City Council requesting this but they had not responded.”
There is what appears to be a full note of the interview. Under the heading “Basic care” the note contains a brief history of events after AK's arrival in the UK and a reference to the conflicting conclusions about his age. And then this:
“He says that he likes to live in Liverpool because he has already been living in Liverpool and he knows the area. He is asked again if he has any family or friends in Liverpool, but he says he hasn't”.
Ms Hearst says at para 12 of her statement that on 14 May, AK confirmed again his wish to return to Liverpool. LBH, therefore, decided that one of its support workers should escort him to Liverpool. On 16 May, a support worker escorted AK to Liverpool's municipal building. On her arrival, she spoke by telephone to Gail Martin, Team Manager of Liverpool's Unaccompanied Asylum Seekers' Team, informing her of AK's presence and handed over a letter explaining the circumstances of his return.
Liverpool has maintained AK and provided him with accommodation since he was returned, but on the basis that he is an adult and that it has no responsibilities pursuant to the CA. The issue of AK's age remains unresolved. There has not been a further age assessment following the immigration judge's acceptance of the report of Dr Birch.
These proceedings
In order to resolve the impasse that had been reached between these two authorities, Liverpool issued judicial review proceedings claiming inter alia (a) a declaration that LBH (i) from 13 May 2008 at the latest was under a statutory duty to conduct an age assessment of AK and provide accommodation under section 20 of the CA pending such assessment, (ii) had acted unlawfully by ceasing to accommodate AK after 13 May and removing him to Liverpool without having conducted an age assessment of him; and (b) a mandatory order that LBH should carry out an age assessment and accommodate him whilst so doing.
The statutory material
The relevant provisions of the CA are in Part III which is headed “Local Authority Support for Children and Families”. The particular provision with which this appeal is concerned is section 20 (as amended), which so far as material provides:
“(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.
(2) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within—
(a) three months of being notified in writing that the child is being provided with accommodation; or
(b) such other longer period as may be prescribed
…
(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)...
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