R (on the application of FL) v Lambeth London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Date | 2010 |
| Court | Queen's Bench Division |
Children – Local authority – Statutory powers – Accommodation – Claimant child being raped by gang member – Claimant refusing to continue to live with mother due to alleged threats by rapist in locality – Local authority assessment concluding that claimant not at risk in locality and mother able to meet her needs – Whether local authority’s decision not to accommodate claimant unlawful – Children Act 1989, s 20(1)(c).
The claimant (FL) was born in 1992. In March 2009, she was raped by a gang member but failed to report the incident to the police due to fears for her safety. A week after the rape, she took an overdose and was referred to the local authority’s social services department. A social worker visited her family home in April but was asked to return at a later date by her mother, who did not wish her to be disturbed prior to her GCSEs. FL was eventually interviewed by a social worker in August, by which time she was seeking alternative accommodation, relations with her mother having deteriorated. In September, her solicitors wrote to the local authority, stating that she was unable to live with her mother as a result of a number of threats to her life made by people in the vicinity following the rape. They accordingly suggested that the authority had a duty to provide FL with accommodation under s 20(1)(c) of the Children Act 1989, her mother being prevented from providing suitable accommodation. In response, the local authority signed off its core assessment, which had allegedly been completed on 4 August but not shown to FL. Although the assessment suggested that FL was sufficiently supported by her mother and was not emotionally ready to live independently, the authority agreed to undertake a ‘child in need’ assessment. On 22 October, FL commenced judicial review proceedings and obtained interim relief requiring the local authority to provide suitable accommodation for her until the permission hearing. A foster placement was found but FL declined to stay there, stating that she wished to live in a flat or supported accommodation. Following a further order that the local authority provide her with suitable accommodation, FL was placed with a new foster carer. The local authority’s core assessment was updated and again signed off on 6 November, concluding that there was no evidence that FL’s immediate surroundings at home were unsafe. At a meeting on 9 November, FL admitted that the rapist did not know her mother’s address
and that his gang did not operate in that area due to the presence of another gang. The local authority ultimately held that FL did not meet the criteria for being accommodated under s 20 of the 1989 Act since her mother was willing and able to provide care for her, and there was no evidence that she was at risk from the locality. At the judicial review hearing, FL submitted, inter alia, that the local authority had (i) unlawfully failed to accommodate her, as required by s 20(1)(c) of the 1989 Act; (ii) failed to carry out an inquiry pursuant to s 47 of that Act, notwithstanding her contention that she was at risk of significant harm; and (iii) breached its duty to safeguard and promote her welfare pursuant to s 11 of the Children Act 2004.
Held – (1) In the instant case, the mother was not prevented from looking after FL by the location of her home. The local authority had been entitled to conclude that there was no evidence that the immediate surroundings of the mother’s house were unsafe. The rapist belonged to a gang which did not operate in the area where the mother lived and, moreover, he did not know the mother’s address. While it was necessary to give due consideration to FL’s natural and healthy desire to be independent from her mother, the local authority had been entitled and right not to follow her wishes. Sometimes a child, even one who was approaching adulthood, would have aspirations beyond their age. The local authority had been obliged to make a value judgment on the question of whether accommodation was required, taking into account FL, her mother, the accommodation and all the surrounding circumstances. The court could only interfere with that decision if the local authority had acted in a Wednesbury unreasonable way. On the evidence, the local authority had been entitled to conclude that FL could live with her mother who was not prevented from providing her with suitable accommodation. The local authority had therefore not acted unlawfully under s 20 of the 1989 Act.
(2) In the circumstances, the local authority had not acted unlawfully in failing to carry out an inquiry pursuant to s 47 of the 1989 Act. The instant case was not one in which a child was in danger of maltreatment in the home.
(3) On the evidence, the local authority had not breached its welfare duties under s 11 of the 2004 Act. While there had been shortcomings in completing the assessments, the authority had had proper regard to FL’s welfare and had rightly reached the conclusion that she would be better looked after within the family home.
Accordingly, the application would be dismissed.
Cases referred to in judgmentAssociated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA.
Puhlhofer v Hillingdon London BC [1986] 1 All ER 467, [1986] AC 484, [1986] 2 WLR 259, [1986] 2 FLR 5, HL.
R (on the application of A) v Croydon London BC, R (on the application of
M) v Lambeth London BC[2008] EWCA Civ 1445, [2009] 1 FCR 317, [2009] 1 FLR 1324.
R (on the application of A) v Lambeth London BC, R (on the application of G) v Barnet London BC, R (on the application of W) v Lambeth 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 (on the application of AB and SB) v Nottingham City Council [2001] EWHC Admin 235, [2001] 3 FCR 350.
R (on the application of G) v Southwark London BC[2009] UKHL 26, [2009] 2 FCR 459, [2009] 3 All ER 189, [2009] 1 WLR 1299, [2009] 2 FLR 380.
R (on the application of Ireneschild) v Lambeth London BC[2007] EWCA Civ 234, [2007] LGR 619; rvsg [2006] EWHC 2354 (Admin), [2006] All ER (D) 31 (Sep).
R (on the application of J) v Caerphilly County BC [2005] EWHC 586 (Admin), [2005] 2 FCR 153, [2005] 2 FLR 860.
R (on the application of L) v Nottinghamshire CC [2007] EWHC 2364 (Admin), [2007] All ER (D) 158 (Sep).
R (on the application of M) v Hammersmith and Fulham London BC[2008] UKHL 14, [2008] 3 FCR 688, [2008] 4 All ER 271, [2008] 1 WLR 535, [2008] 1 FLR 1384.
R v Islington London BC, ex p Rixon [1997] 1 CCLR 119.
ApplicationOn 22 October 2009, the claimant (FL), a child born in 1992, commenced proceedings for judicial review of the decision of Lambeth London Borough Council to refuse to accommodate her under s 20(1)(c) of the Children Act 1989. On the same day, she obtained interim relief from Silber J, requiring the local authority to provide suitable accommodation and reasonable subsistence for her until the permission hearing. On 30 October, a further order to that effect was made by Wyn Williams J. On 12 November, Davis J ordered a rolled-up hearing, which took place on 9 and 10 December. FL appeared by her litigation friend, the Official Solicitor. The facts are set out in the judgment.
Caoilfhionn Gallagher for the claimant.
Hilton Harrop-Griffiths for the local authority.
CHRISTOPHER SYMONS QC. INTRODUCTION[1] The claimant, FL, is a child now aged 17 having been born [in] November 1992. She appears before me by her litigation friend the Official Solicitor and is represented by Ms Gallagher. It is alleged on her behalf that there has been an unlawful failure on the part of the defendant, Lambeth Borough Council (Lambeth), to assess her needs under s 17 of the Children Act 1989 (the 1989 Act), a failure to accommodate her under s 20 of that Act and a failure to carry out an inquiry under s 47. Underpinning these
grounds are alleged failures of Lambeth to have proper regard for their welfare duties to the claimant under s 11 of the Children Act 2004 (the 2004 Act) and breaches of arts 2, 3 and/or 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) (the Convention).
[2] The real dispute in this case is largely a factual one as to whether the claimant is able to live with her mother in the Stockwell/Brixton area or whether, as the claimant alleges, she is unable to live there as her physical safety, mental well-being and possibly her life are at risk there. It is Lambeth’s case that her mother’s accommodation is suitable and it is not accepted that it is unsafe.
[3] There is also an issue as to what the correct approach of the court should be where such a dispute arises. Lambeth argue that the issue of whether a child needs accommodation is a matter for their decision and that since this is largely a factual dispute the court should not interfere unless the decision of the council is in some way irrational or Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). The claimant on the other hand submits that the council’s actions have throughout been unlawful. They have failed to carry out a timely or appropriate assessment under s 17 of the 1989 Act and have unlawfully failed to accommodate the claimant under s 20 of that Act and failed to conduct an inquiry under s 47. Ms Gallagher on FL’s behalf seeks first of all permission to apply for judicial review (this is a rolled-up hearing) and, if granted, declaratory relief and mandatory orders to ensure that Lambeth carry out its statutory duty.
[4] I shall set out the facts first of all and then turn to the law. I will then attempt to summarise the parties’ submissions before setting out my conclusions.
The Facts[5] In about 2000 the claimant’s mother moved to her current address in the Stockwell/Brixton area. She works as a registered nurse and works long...
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