R (on the application of H) v Wandsworth London Borough Council; R (on the application of Barhanu) v Hackney London Borough Council; R (on the application of B) v Islington London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Date | 2007 |
| Court | Queen's Bench Division |
Children – Local authority – Statutory powers – Government circular on exercise of statutory powers – Local authorities assessing asylum-seeking children for accommodation needs pursuant to guidance – Local authorities providing accommodation in discharge of its general duty – Local authorities maintaining children not entitled to access services and support from leaving care provisions – Whether authorities having specific duty to provide accommodation – Whether leaving care provisions applicable – Whether government circular providing erroneous guidance – Children Act 1989, ss 17, 20 – Children (Leaving Care) Act 2000.
In three applications for judicial review involving three local authorities, issues arose as to: (i) whether each of the claimants, who were unaccompanied asylum-seeking minors, could be classified as a ‘former relevant child’, by virtue of the fact that he/she had been ‘looked after’ for more than the prescribed period of 13 weeks at the point of maturity, in order for them to then receive services and/or support under the Children (Leaving Care) Act 2000 (the ‘leaving care provisions’); and (ii) whether the relevant government circular, ‘Local Authority Circular No Lac (2003) 13’ (LAC(2003)13) was erroneous as to its guidance on the law relating to a local authority’s assessment of unaccompanied asylum-seeking minors, that were within their control, and of whom were seeking accommodation. In relation to (i), it fell to be considered whether a local authority which provided a lone child in need with accommodation, could determine or specify that it had done so in exercise of a power under s 17 of the Children Act 1989, when in the circumstances, it had also been under a duty to provide accommodation, under s 20 of that Act.
Held – (1) If a local authority had provided accommodation to a child in need, and on the facts, a duty to do so had arisen under s 20 of the Children Act 1989, the authority had then to be regarded as having provided that accommodation under s 20 and not under s 17 of the Act. The authority had to act rationally and could not distort its judgments so as to squeeze out the operation of s 20 of the Act. Section 17 of the Act contained a general, overarching or framework duty for a local authority to discharge. That duty was owed by the authority to every child in need within their area. Section 20, by comparison, contained a specific duty that could be owed to a child depending on his/her particular circumstances, and of which could not be simply finessed away by the authority. Moreover, should an authority be under a s 20 duty, it could not then be heard to claim to have had exercised a power to allocate accommodation and/or support to a child in need.
(2) The effect of LAC(2003)13, was that in certain circumstances, a local authority might consider that what a child required was not ‘accommodation’ (which would give rise to a duty under s 20 of the Children Act 1989), but ‘help with accommodation’ (which would not give rise to such a duty). If the authority then provided no more than help, for instance, some limited funding, then neither a duty under s 20, nor the statutory consequence of the child becoming ‘looked after’ would arise. The correct approach for a local authority would be to decide whether a child required ‘accommodation’ or merely ‘help with accommodation’, without having regard to the implications of his being or not being a ‘looked after’ child. In the first two applications, the respective local authorities had provided accommodation, not in discharge of its general duty under s 17 of the Act, but in discharge of its specific duty under s 20 of the Act. In those circumstances, therefore, each of the claimants in those applications could be classified as a ‘former relevant child’, and would be entitled to the services and/or support under the leaving care provisions. In the third application, the claimant had not been ‘looked after’ for the prescribed period, and could not for present purposes be considered a ‘former relevant child’ for any entitlement to the leaving care provisions.
Cases referred to in judgmentD v London Borough of Southwark[2007] EWCA Civ 182, [2007] 1 FCR 788.
R (on the application of Berhe) v Hillingdon London BC [2003] EWHC 2075 (Admin), [2004] 1 FLR 439.
R (on the application of G) v Barnet London BC[2003] UKHL 57, [2003] 3 FCR 419, [2004] 1 All ER 97, [2004] 2 AC 208, [2003] 3 WLR 1194, [2004] 1 FLR 454.
R v London Borough of Bexley, ex p B (31 July 1995, unreported).
ApplicationsIn three judicial review applications involving local authorities from Wandsworth, Hackney and Islington, a common question of law arose relating to the Children Act 1989. The facts are set out in the judgment.
Stephen Knafler (instructed by Bennett Wilkins in the first application, Fischer Meredith in the second application and Harter and Loveless in the third application) for the claimants.
Clive Sheldon (instructed by Martin Walker) for the authority in the first application.
Karen Steyn (instructed by Amanda Kelly) for the authority in the second application.
Bryan McGuire (instructed by Louise Round) for the authority in the third application.
Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State for Education and Skills.
HOLMAN J. INTRODUCTION AND THE ISSUE[1] 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 s 17 of the Children Act 1989 when, on the facts of the case, they are also under a duty to do so under s 20 of that Act?
[2] 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.
[3] 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[4] Several of the relevant provisions have been amended and I quote them in their current form. They all fall within Pt III of the Act, headed: ‘Local authority support for children and families’. The contrast is with Pt 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.)
[5] So far as is material s 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 s 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 s 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 …’
[6] So far as is material, s 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...
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