The Queen (on the application of AB) v The London Borough of Ealing
| Jurisdiction | England & Wales |
| Judge | Mathew Gullick |
| Judgment Date | 11 December 2019 |
| Neutral Citation | [2019] EWHC 3351 (Admin) |
| Date | 11 December 2019 |
| Docket Number | Case No: CO/1984/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3351 (Admin)
Mathew Gullick
(sitting as a Deputy Judge of the High Court)
Case No: CO/1984/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Khatija Hafesji (instructed by Simpson Millar) for the Claimant
Joshua Swirsky (instructed by Ealing Council Legal & Democratic Services) for the Defendant
Hearing date: 9 th October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a claim for judicial review of the Defendant local authority's refusal to exercise its discretion to treat the Claimant as if she were a “former relevant child” within the meaning of section 23C of the Children Act 1989 (“the 1989 Act”). The Claimant is now an adult. The practical effect of the Defendant's refusal to treat her as if she were a “former relevant child” is that she does not have access to the continuing support, which lasts well into adulthood, that she would have received if she had been cared for by the Defendant prior to her 18 th birthday.
The documentary evidence placed before me at trial consisted of just under 750 pages of contemporaneous material (mostly records disclosed by the Defendant) and inter partes correspondence. The Claimant filed a witness statement and there were also statements from Lois Clifton, a trainee solicitor employed by Simpson Millar (setting out the content of a discussion with the Claimant's teacher in June 2019), and from Diksha Kahlon, who at the times material to this Claim was a caseworker employed by the Women and Girls Network (“WGN”). For the Defendant, there were witness statements from Hannah Barter, a Family Support Worker employed in the Defendant's Children's Services Department, and from Simy Mathew, a Deputy Team Manager in the same department. I also had the benefit of written and oral submissions from Ms Hafesji, on behalf of the Claimant, and from Mr Swirsky, for the Defendant.
Factual Background
The Claimant was born in February 2001. Until September 2018, she lived with her mother and two younger twin siblings at the family home in Ealing. Although the Claimant's parents had separated several years before the events with which this Claim is concerned, her father visited the home from time to time. The Claimant's family had a long history of contact with the Defendant's social services department. The children were first brought to the attention of social services by the police on 9 th April 2011, when the Claimant was 10 years old, due to what is described in the Defendant's records as “a domestic incident” between their parents. The police referral stated that there were no immediate concerns but that if problems continued between the parents then this could cause issues for the development of the children. The Defendant took no further action.
In February 2013, the children were again referred to social services following the hospitalisation of the Claimant's mother due to concerns about her mental health; she was suffering from depression with psychotic features and alcohol dependency. It was recorded that the Claimant's parents had been separated for five years at that point but that her father had recently moved back into the family home to care for the children. During the ensuing year, the Claimant's mother was hospitalised on at least two further occasions. A number of concerns were raised about the parents' capacity to care for the children. In May 2013, the assessing social worker stated that they were “very concerned for the children's wellbeing” and that the children were at risk of emotional harm.
At this point, the Defendant considered the children to be “in need”, within the meaning of section 17 of the 1989 Act, and on 21 st May 2013 they were put onto a Child In Need Plan to seek to safeguard their wellbeing and development. Although there were reservations about the Claimant's father's parenting capacity, he continued to care for the children. The Defendant offered to provide respite accommodation in foster care for the children, however in August 2013 their parents refused that offer. The parents also declined to work with the Supportive Action for Families in Ealing (“SAFE”) worker to provide the children with a greater understanding of the issues affecting the family, something recommended in the Child in Need Plan. In due course, however, the Defendant considered that the family was doing well; many of the objectives of the Claimant's Child in Need Plan were met and the family's case was closed by social services on 13 th February 2014.
In November 2014, the Defendant received another referral from the local hospital following a relapse in the Claimant's mother's mental health The case was closed after a week, as the Defendant considered that further social work intervention would result in a deterioration in the Claimant's mother's mental health and that the presence of the children's father was a protective factor. No further action was taken by the Defendant following this referral.
On 29 th September 2016, the Defendant received another referral from mental health services. It was reported that the Claimant's mother had stated that she was overwhelmed by caring for her children. An assessment was carried out in January 2017 by SAFE – a joint initiative between the Defendant and local National Health Service bodies – which highlighted that the Claimant had taken on the role of main carer for her mother and siblings, cooking and cleaning the house when she was also attempting to study for her GCSE exams. The assessor noted that although the children were generally progressing well there were concerns that the parents were not willing for the Young Carers' Project to become involved, given that the Claimant was taking mock GCSE exams and would be taking the full exams in the summer of 2017.
On 29 th March 2017, the Claimant's mother was again hospitalised due to her poor mental health. The Claimant's mother informed SAFE that she did not want the Claimant's father in the house and disclosed that she had been a victim of domestic violence and that he had physically assaulted the Claimant's younger brother in 2015. In June 2017, it was recorded that the Claimant's father had been visiting to support the children by cooking for them. SAFE recorded that the family home was unclean, the children were unhappy that their father was coming to the house and that the family was in financial difficulty as payment of the Claimant's mother's disability living allowance had ceased. On 14 th December 2017, the Claimant's mother disclosed that in October of that year she had again been assaulted by the Claimant's father. On 4 th January 2018, the Defendant closed the family's case because the Claimant's mother reported that she felt able to make progress on her own.
On 12 th April 2018, the local hospital made a safeguarding referral in respect of the Claimant. This followed the Claimant's mother telling staff that she had a daughter at home who looked after herself. The hospital staff were concerned that the children were responsible for caring for their mother due to her chronic pain and difficulty doing housework. The Defendant's social services department did not speak to the children as part of its assessment at this point. It was concluded that given the age of the three children (who were at this point 15, 15 and 17) they were not at significant risk and that the case should be closed.
In September 2018, when she was 17 1/2 years old, the Claimant left the family home and went to live with her boyfriend and his family. On 1 st October 2018, the NSPCC made a referral to the Defendant in relation to the children regarding possible neglect and eating disorders. Also in October 2018, another referral was received from the local hospital stating that the Claimant's mother had been hospitalised, that she was in a critical condition, and that her two younger children were at home alone.
On 4 th October 2018, the Defendant's social services department contacted the Claimant by telephone. She told the Defendant that she had left the family home because her mother was in hospital and her father had come to the house to support her younger siblings who were by then aged 16. She reported that she did not get on with her father and that there was a history of domestic abuse which had impacted on her mother's mental health. The Defendant's social worker recorded that the Claimant sounded fragile and was struggling to cope. She was on her way to an interview for a job to support the family, and was balancing this with school. It was stated that the Claimant would like further support from the Defendant's children's services and that she did not want to live with her father. The Claimant said that she did not get on with her siblings.
Starting on 8 th October 2018, a further Child and Family Assessment was carried out by the Defendant. As part of the assessment process, the Claimant was twice interviewed in person by the assessing social worker, Ms Barter. On the second occasion the Claimant was accompanied by Ms Kahlon and Ms Mathew was also present. Shortly prior to the completion of the assessment, the Claimant moved to a women's refuge in another local authority's area.
During the assessment process, the Claimant reported that she been emotionally abused by her mother and physically assaulted by her father. She also reported self-harming and having an eating disorder. In the assessment, the Defendant stated inter alia as follows:
i) That the...
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