R (S) v Sutton London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,Lady Justice Arden,The Master of the Rolls |
| Judgment Date | 26 July 2007 |
| Neutral Citation | [2007] EWCA Civ 790 |
| Docket Number | Case No: C1/2007/1080/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 2007 |
[2007] EWCA Civ 790
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE STANLEY BURNTON
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lady Justice Arden and
Lord Justice Hooper
Case No: C1/2007/1080/QBACF
CO/9680/2006
Mr Ian Wise and Ms Caoilfhionn Gallagher (instructed by Howard League for Penal Reform) for the Appellant
Mr Stephen Bellamy QC (instructed by Sutton Legal Services) for the Respondent
Hearing dates: 23 July 2007
Judgement
The appellant, born on 26 July 1989, appeals the decision of Stanley Burnton J. He referred to her as “J”, and so shall I.
The appeal concerns in particular the duties of a local authority:
a) under section 23B of the Act which sets out the duties of a local authority in respect of “a relevant child”.
b) under section 20 of the Children Act 1989 (“the Act”) which imposes a duty on a local authority to provide accommodation of any child in need within their area.
It is the appellant's case that Stanley Burnton J was wrong in finding that the respondent did not owe her the duties set out in section 20 and section 23B.
If the respondent owed a duty to the appellant under section 23B, that would (so Mr Wise submits) have significant consequences for her, including the availability of support until she is 21 and possibly longer.
The full facts are set out in the judgment of Stanley Burnton J [2007] EWHC 1196 (Admin).
In outline the facts are that for most of the period between August 2005 and the end of January 2006 J was on bail awaiting the outcome of two separate criminal cases: a robbery and an assault occasioning actual bodily harm on her mother. The robbery charge was first dealt with by Wimbledon Youth Court and then by Kingston Crown Court, which sentenced her to a 24 months Detention and Training Order on 27 January 2006. The assault charge was dealt with throughout by Sutton Youth Court, which, following a trial, sentenced her to a concurrent sentence on 31 January 2006. The appellant was released from Medway Secure Training Unit on 24 November 2006 subject to an electronic curfew and under supervision.
The appellant's case falls into two parts: one relating to the period leading up to 27 January 2006 and the other relating to the time of her release.
Statutory provisions
The relevant provisions of the Act are those to be found in Part III. This Part is headed “Local Authority Support for Children and Families Provision of services for children and their families”. It is important to note that action taken by the local authority under Part III cannot normally be taken against the wishes of any person with parental responsibility (see e.g. section 20(7), (8) and (11)) and there are requirements to ascertain the wishes of the child. Part IV, on the other hand, gives the local authority certain coercive powers.
Part III also includes section 17 which imposes a general duty to safeguard and promote the welfare of children within their area who are in need and, 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. Section 17 is not relevant to this case.
I turn to the relevant sections, omitting many of the sub-sections.
Section 23A provides:
(1) The responsible local authority shall have the functions set out in section 23B in respect of a relevant child.
(2) In subsection (1) “relevant child” means (subject to subsection (3)) 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 purposes of paragraph 19B of Schedule 2; and
(c) is aged sixteen or seventeen.
(3) …
(4) In subsection (1) the “responsible local authority” is the one which last looked after the child.
(5) …
Section 23B provides:
(1) It is the duty of each local authority to take reasonable steps to keep in touch with a relevant child for whom they are the responsible authority, whether he is within their area or not.
(2) It is the duty of each local authority to appoint a personal adviser for each relevant child (if they have not already done so under paragraph 19C of Schedule 2).
(3) It is the duty of each local authority, in relation to any relevant child who does not already have a pathway plan prepared for the purposes of paragraph 19B of Schedule 2—
(a) to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and
(b) to prepare a pathway plan for him.
…
(7) The authority shall keep the pathway plan under regular review.
(8) The responsible local authority shall safeguard and promote the child's welfare and, unless they are satisfied that his welfare does not require it, support him by—
(a) maintaining him;
(b) providing him with or maintaining him in suitable accommodation; and
(c) providing support of such other descriptions as may be prescribed.
(9) Support under subsection (8) may be in cash.
Paragraph 19B of Schedule 2 to the Act provides, so far as material, that an eligible child is a child who is aged 16 or 17 and “has been looked after by a local authority for a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen.” By regulation 3 of the Children (Leaving Care) (England) Regulations 2001, the prescribed period is 13 weeks and the prescribed age is 14.
Section 22(1) provides:
(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 are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.
As to sub-section (1)(a), there was no dispute that the appellant had been “looked after” for about 42 days after she had been remanded to local authority care by the Sutton Youth Court on 17 August 2005. She had appeared before that court charged with assault occasioning actual bodily harm on her mother. The order remanding her into local authority care came to an end on 20 September 2005. A period of only 42 days in care is insufficient by virtue of regulation 3 of the Children (Leaving Care) (England) Regulations 2001, The prescribed period is, as I have shown, 13 weeks.
As to sub-section (1)(b), the only relevant function in this case is the function under section 20(1). This sub-section is crucial to this case. It provides:
Every local authority shall provide accommodation for any child in need [defined in s. 17(10)] 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.
It is accepted that during the relevant period J was both a child in need and within the area of the London Borough of Sutton.
It is necessary to refer to one more provision of the Act, namely section 23, which provides:
(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 (subject to section 49 of the Children Act 2004);
(aa) maintaining him in an appropriate children's home; or
(f) making such other arrangements as—
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State.
Sub-section (2) gives the local authority various options when deciding how to fulfil its duties towards a child whom the authority is looking after. If the local authority places a child with any of the list of persons in sub-section 2(a), the local authority must make payment.
Before looking at the competing arguments, it will be helpful to summarise the material statutory provisions in so far as J is concerned. Section 20(1) imposed the duty upon the respondent to provide accommodation for J if J appeared to it to require accommodation as a result of the circumstances outlined in (c) (the respondent accepts that (c) applied). If the respondent, in fulfilment of its duty in respect of J under section 21, provided her with accommodation, then by virtue of section 22(1), J would be child being “looked after” by it. The respondent would then have the duty to maintain her as described in section 23(1). Section 23(2) sets out how the obligation to provide accommodation and maintenance is to be fulfilled. Furthermore J would have been a “relevant child” if she was an “eligible child” (section 23A(2)). J was an “eligible child” if she had been “looked after” for a period 13 weeks or more being a period which began after she reached the age of 14 and ended after...
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