R (M) v Hammersmith and Fulham London Borough Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD HOFFMANN,LORD SCOTT OF FOSCOTE,LORD WALKER OF GESTINGTHORPE,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND
Judgment Date27 Feb 2008
Neutral Citation[2008] UKHL 14

[2008] UKHL 14

HOUSE OF LORDS

Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

R (on the application of M) (FC)
(Appellant)
and
London Borough of Hammersmith and Fulham
(Respondents)

Appellants:

Jan Luba QC

Ian Wise

(Instructed by The Howard League for Penal Reform)

Respondents:

Clive Lewis QC

Joanne Clement

(Instructed by Legal Services Division London Borough of Hammersmith and Fulham)

LORD HOFFMANN

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I too would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

2

I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and for the reasons she gives, with which I am in full agreement, I too would dismiss this appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

3

I have had the privilege of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in full agreement with it, and I too would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

4

Any parent of teenagers aged 16 and 17 knows how difficult they can be. But they also know that, however much those teenagers are struggling to discover their own identities and lead independent lives, they also depend upon the love and the support of their parents. As the Green Paper, Care Matters: Transforming the Lives of Children and Young People in Care ( 2006, Cm 6932, para 7.2) put it:

"For most young people the idea of being left unsupported at that age would be alien. They have a sense of security and know that their parents will always be there for them. Few young people ever really 'leave' the care of their parents. They may leave home, and on average do so at the age of 24, but they know that their families are only ever a phone call away and stand ready to offer financial support and advice, or a place to stay if they need it."

This case is about the respective responsibilities of local authority children's and housing services towards children aged 16 and 17 who are unable to live with their families. In the end, it comes down to a short point of construction: what is meant by 'a child who is looked after by a local authority', as defined in section 22(1) of the Children Act 1989? But the clear intention of the legislation is that these children need more than a roof over their heads and that local children's services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities.

What happened in this case

5

M is the youngest of her mother's five children by different fathers. The family spent many years in unsettled and temporary accommodation. On her own account the mother (who had spent her own childhood in local authority care) had tremendous difficulty controlling her children. M was excluded from school at the age of 14 and never returned. Her mother has been ill for many years with a stomach complaint which was eventually diagnosed as an inoperable malignant tumour. M was expected to look after her mother but at the same time left 'to get on with her own thing without supervision'. Early in 2005 she became involved with the criminal justice system. Soon afterwards, the relationship with her mother broke down.

6

On the mother's account, M went with the mother's Macmillan nurse to seek help from the local children's services department and was turned away; but there is no record of any such visit. However, there is a record of a visit by M to the local authority's housing department on 4 February 2005, shortly before her 17th birthday. She bore a letter from her mother 'to whom it may concern'. This stated that M 'is no longer able to stay in my home as she has broken every rule laid down to her' and asking help for M 'by placing her in her own home'. The first part of a 'First Approach: Needs Assessment and Referral Form' was filled in but no more: the manager speculates that M was sent away to ask for proof that her mother was entitled to exclude her from the home and did not return.

7

M next approached the Housing Department on 5 April 2005, bearing another letter from her mother:

"I go into hospital on 6th April 2005 for treatment on a tumour I have. I am not prepared for [M] to be one of the factors that halt my treatment because of her behaviour. I am not willing to try with her anymore. She has ongoing Court Cases and a lot of social problems. I myself have tried but I cannot help. So I hope you can be of some assistance with the housing needs for [M]."

Once again, the housing department sent her home, this time with a letter to her mother stating that she should give her daughter at least 28 days' notice to leave. The mother replied immediately, saying that she had already done so two months ago and that her home would be locked up when she went into hospital the following day. Back at the housing office, M explained that she was on bail for various offences, so (after contacting the Youth Offending Team) she was advised to inform the police that she had lost her bail address.

8

The following day, 6 April 2005, M was in court and needed a bail address as she could not go home. Her solicitor persuaded the housing department to provide her with temporary accommodation in a bed and breakfast hotel and to fax the court to that effect. M signed a licence agreement with the local authority that same day. The 'Needs Assessment' form completed by the officer recorded that she was currently not on any income, was a young person at risk, an offender and an ex or current offender.

9

Despite that, there is no record of any referral to the local authority's children's services department. There was a referral to a mediation service, with a view to exploring the possibility of M going back to her mother's home. The mediator left two telephone messages for M and sent one letter but received no response. Accordingly the local authority cancelled her licence with effect from 25 April but reinstated it that same day when M agreed to see the mediator. She did so the following day, but when they contacted the mother, she made it clear that she was not prepared to engage in mediation or to have M at home any more. The local authority therefore continued to provide M with temporary accommodation at the hotel. She was interviewed about her housing application in May, but once again no inquiries were made of the children's services department, or at that stage of the Youth Offending Team. In July she was moved to a hostel for 16 and 17 year olds, but in October she was evicted for breaking the hostel rules. She went to stay with her sister, who lived with her eight month old baby in one bed-roomed accommodation not suitable for three people.

10

The later history is not strictly relevant to the issues we have to decide but it seems clear that the lack of suitable supported accommodation played an important part in M's encounters with the criminal justice system, not least because she required a settled address for electronic tagging. It is not easy to disentangle the threads of the story from the documents on the housing department file. When first accommodated in April 2005, M was on bail for an offence of robbery committed in January that year. In May she was given a 9 month referral order for that offence. Shortly before that, however, she committed an offence of witness intimidation and in October 2005 she was placed under a Community Punishment and Rehabilitation Order for that offence. The pre-sentence report commented that 'her succession of temporary bed & breakfast placements have meant that [M] has more recently had little sense of permanency, and has had to adapt to cope with independence beyond her skills'. Initially she seemed to be doing well with that order. However, in November 2005, she also became subject to a 12 month Supervision Order with an Intensive Supervision and Surveillance Programme for offences committed in 2004. She was not up to keeping track of the demands of both orders and in December she was back in court for breach. By then her sister had evicted her and the local authority had given her further temporary accommodation. But once again she faced eviction from that accommodation for breaking the rules. The bench clearly did not want to send her into custody and on 21 December adjourned the case to see whether her accommodation problems could be resolved. She was summarily evicted the very next day having been assaulted by an unauthorised guest (said to be an ex boyfriend) and went to stay with her mother. Unfortunately she could not see a housing officer before her next appearance in court in January 2006, when she was sentenced to a four month detention and training order. While in custody she discovered that she was pregnant. She also reached the age of 18.

11

Proceedings for judicial review were launched while M was still in custody. The main aim was to obtain suitable accommodation for her before she was released; allied to this was a claim that M was owed duties by the children's services department of the local authority, under the Children Act 1989 as amended by the Children (Leaving Care) Act 2000 (the 1989 Act); among these would be the appointment of a social worker and personal adviser. The local authority did not deny that she might be owed duties under the Housing Act 1996 (the 1996 Act) but did deny that any duties were owed under the 1989 Act.

12

Permission to move for judicial review was refused in the High Court but granted by Neuberger LJ when granting permission to appeal. Accordingly the...

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