G, Re Application for Judicial Review

This appeal from an order made by Hooper J. on 18th January 2001 gives rise to important questions about the obligations of a local authority under the Children Act 1989 to provide accommodation and financial support for a child in need in its area when the mother herself is not entitled to housing for the homeless under the Housing Act 1996 nor to housing benefit nor to income support. Income support is, of course, paid by central government, and although housing benefit is paid by the housing authority, it is to a large extent reimbursed from central government funds. On the other hand, if the local authority have to meet the cost of housing and maintaining not only a child but also his mother by virtue of its obligations under the Children Act, as this mother insists they must, then the funds of the Social Services Departments may be seriously depleted with little chance of central government refunding this drain on their precious resources. The local authorities are, therefore, seriously concerned as to how they can afford to meet this kind of demand as well as the multitude of other calls upon their Social Services Department. Whatever the rights and wrongs of their predicament, experience in the Family Division and in this court supports the view that they never seem to have enough money to do what they wish to do, and frequently they say they do not have enough money to do even what they have to do. The appellant, the London Borough of Barnet is reconciled to meeting its lawful obligations, but it invites the court to limit them.

The facts which give rise to this appeal can be quite shortly stated. The respondent to the appeal, whom I shall call “the mother”, is RG who is a Dutch national of Somali origin. On 9th May 1999 she gave birth to her son, B, who is now nearly two years old. Because the case concerns him, we direct that it be reported under initials only so as to preserve the anonymity of the mother and child. The mother had lived with her mother in Holland for about seven years and in recent times had been in receipt of state benefits. On 30th May 2000 she was issued with a Dutch passport and on 16th June 2000 she entered the United Kingdom from the Netherlands. She gave two main reasons for her coming here. The first was that the Somali community in Holland showed great hostility to her as an unmarried mother, her mother was ashamed of her and being ostracised and vilified, the respondent’s mother eventually asked her to leave her home. The second reason she gave was that she came to the United Kingdom to search for the father of her child who had abandoned them as soon as he heard of her pregnancy and who was now believed to be living here.

Hooper J. said this: -

On her arrival in this country, the mother and her child stayed at first with a friend in the Somali community here. When she was no longer able to avail herself of that hospitality, she applied to the Housing Department of the local authority which accepted that she was threatened with homelessness but held that she was not eligible for assistance with housing because she failed the necessary habitual residence test. She was not eligible for income support for similar reasons. Not being eligible for income support, she was also not eligible for housing benefit. She then applied to the respondent’s central asylum team who, without reference to the Social Services Department, expressed the view that no duty was owed under the Children Act 1989, a decision which it should be said in fairness to the local authority was immediately denounced by the Social Services manager. On 28th June 2000 the mother, helped by her solicitors, made representations to the out-of-hours duty social worker who agreed to provide accommodation and subsistence for the mother and child pending a Children Act assessment. Such assessment was conducted the following day and after further enquiries there was a further review of her position on 4th July. The social workers informed the mother of their conclusions that B was not a child in need because the long term needs of the child could best be met in settled accommodation with the provision of the full benefit entitlement and/or parental income that would be available to the mother in Holland, there being little or no prospect of such settled accommodation or full benefits or income being available to them here for at least about six months. She was offered her fares to return to Holland with B but that offer was refused. The mother was told that the local authority would continue to meet her and her son’s short-term needs by providing accommodation and subsistence money for a further seven days only to enable her to make arrangements to return to Holland.

The mother immediately sought permission to apply for Judicial Review to quash that decision. On 11th July Maurice Kay J., having heard counsel on behalf of the mother, the local authority not being represented, ordered that permission be granted and he ordered the local authority to continue to provide accommodation and subsistence to the mother at the accommodation provided for her by them. Eventually on 2nd October 2000 Turner J. made no order on that application for Judicial Review on an undertaking by the local authority not to terminate the prevailing provision for the mother pending the completion of the assessment without giving seven days’ notice.

As a result of that assessment the Social Services Department wrote to the mother on 9th October 2000 in these terms: -

The mother immediately applied for Judicial Review to quash that decision and on 18th January 2001 Hooper J. granted her that relief. He gave permission to the local authority to appeal because:-

The relevant provisions of the Children Act 1989 are as follows:-

Part I of Schedule 2 to the Act deals with “provision of services for families”. It covers such matters as the identification of children in need and provision of information, children’s services plans, the maintenance of a register of disabled children, assessment of children’s needs, provision of accommodation in order to protect a child from ill-treatment at the hands of another, provision for disabled children, provision for a range of services for children living with their families, family centres and the maintenance of the family home. Perhaps the only material provision is in paragraph 7 which provides that:-

Part II of Schedule 2 deals with children looked after by local authorities and paragraph 19 provides as follows:-

Section 2 of the Local Authority Social Services Act 1970 provides:-

Hooper J. identified the issue he had to resolve to be:-

Mr Supperstone Q.C., who now appears with Mr Harrop-Griffiths for the local authority, submits in summary that section 17(3) and (6) give the local authority power to provide accommodation for the mother and child and subsistence for them but do not impose a duty to do so; the duty to provide accommodation under section 20(1) is a duty to provide accommodation for the child only; section 23(6) only applies if the local authority are looking after the child but as the local authority are entitled to refuse to provide accommodation for the child, he will no longer be looked after and so section 23(6) does not apply; in any event it would not be reasonably practicable or consistent with B’s welfare to make arrangements for him to live with his mother in the circumstances in which she finds herself; and paragraph 19 does not apply. He submits that the true issue should be posed in this way: if the local authority are entitled to conclude that it is in the best interests of B to return to Holland, can they lawfully make an offer to facilitate that happening. He submits that in taking their decision, the local authority have acted lawfully.

Mr Howell Q.C. who now appears with Mr Knafler for the mother submits that the local authority have not lawfully discharged their Part III functions because their decision is inconsistent with section 23(6) and with section 17(1)(b). He submits it is irrelevant whether an offer is made to accommodate B alone pursuant to section 20. He submits that the local authority is not empowered to make the arrangements for the child to live abroad by virtue of paragraph 19 of the schedule.

The submissions are well developed in the skeleton arguments and I hope this brief summary does justice to the cogency of the interesting arguments deployed before us.

Section 17(1) imposes a general duty on the local authority, in addition to other duties imposed upon them, firstly to safeguard and promote the welfare of children in the area who are in need and secondly so far as is consistent with their duty to promote the upbringing of such children by their families. It is to be observed, however, that the duty is performed by providing a range and level of services appropriate to those children’s needs. Given that there is a wide range of choice, it has to be inferred that there is power to do one or more of many things to meet the general duty. None of the specific duties set out in Part I of Schedule 2 seem to me to apply, though Mr Howell did contend that the duty under paragraph 7 of the First Schedule to take reasonable steps designed to reduce the need to bring care proceedings imposes a specific duty to provide accommodation not only for the child alone but for the child with the mother. I reject that submission. Paragraph 7 envisages a resort to a wide range of the reasonable steps which may obviate care proceedings being instituted. Accommodating the child alone under section 20 is one such step. Arranging for the mother and child to return to Holland where they can be accommodated and where the welfare of the child is ultimately best served is another such step.

Mr Howell referred us to R v Northavon D.C. ex parte Smith [1994] 2 A.C. 402 to support his case under section 17. One must, however, take note of the facts in that case. There the applicant and his wife whose five children lived with them were refused housing under Part III of the Housing Act 1985 because the housing authority found that although they were in priority need, they had become homeless intentionally. The applicant went next door to the Social Services Department who were satisfied that the children were in need but they concluded they had no duty to provide financial assistance. The Social Services Department, invoking their powers under section 27 of the Children Act 1989, decided to request the help of the local housing authority by their giving urgent consideration either to the provision of assistance for an appropriate full tenancy of a type and description which was commensurate with the family’s housing needs or to an extension of the occupancy of their temporary accommodation. The housing authority declined to do so and the applicant applied for the judicial review of the housing authority’s decision, not the Social Services’ decision. The case is, therefore, authority for the Local Authorities Housing Act obligations and references to the Children Act duties are strictly obiter.

At p.406 Lord Templeman observed:-

In my judgment the use of the permissive “may” as opposed to the peremptory “shall” in subsections (3) and (6) makes it plain that the local authority has power to provide for the family and power to give assistance in kind or in cash, but the local authority are not under any duty to do so. In my judgment the duty to promote the upbringing of children with their families, widely expressed as it is in section 17(1), is met by providing financial assistance for the return of mother and child to Holland because, as is conceded, it was reasonable for the local authority to conclude that that was the best way of meeting all of the child’s needs not least because it is in Holland that the wider family, especially grandmother, are established.

I do not read the second passage of Lord Templeman’s speech to suggest that the only way in which the local authority perform their general duty to protect children in need is by providing financial assistance towards the accommodation of the family. As the quoted sentence makes plain, that is but one way in which the local authority may choose to act and it is clear that the duty may be satisfied by “exercising the other powers available to the Social Services authority under the Children Act”.

We were also referred to Attorney-General, ex rel. Tilley v Wandsworth L.B.C. [1981] 1 W.L.R. 854. In this case the local authority had resolved that in those cases where intentional homelessness had been determined by it in respect of a family with young children and subsequently an approach was made to its Social Services Department, assistance with alternative housing should not be provided under the provisions of the Children and Young Persons Act 1963 although consideration should be given to the reception into care of the children should their circumstances warrant it. Section 1(1) of the Children and Young Persons Act 1963 was a forerunner of what is now contained in Part III of the Children Act but it is couched in very different language and expresses a very different philosophy. Section 1(1) provided:-

I conclude without any difficulty at all that the local authority did not act unlawfully in refusing to provide assistance in kind or in cash for the mother so as to provide for accommodation for herself and B. Sections 17(3) and (6) do not impose such a duty on them. On the other hand the offer of assistance for her to return to Holland does fall within section 17 because on the view of the facts taken by the social workers, that was an offer of a service designed to promote B’s upbringing by his family. There being no Wednesbury challenge, the decision was within the range of the powers of the local authority. It satisfies Lord Templeman’s test. There is no substance in the challenge to the lawfulness of the decision made pursuant to section 17.

Nothing in those conclusions is contrary to Damoah; on the contrary Damoah supports my view of the meaning of section 17. There a Swedish national had travelled to England with her young sons intending to make a new life in this country. Like the claimant here, she was ineligible for income support or for housing under the Housing Acts. She was temporarily provided with bed and breakfast accommodation and a subsistence allowance under the Children Act. The decision taken by the Social Services Department in that case was to do no more than offer to fund the return of the children to Sweden and on the judge’s findings “it expressly excluded the use of some of its powers under the Act in the event that the applicant did not accept the offer”. Kay J. had no difficulty at all in concluding that in deciding to limit its powers in that way the local authority was in breach of its duties to the children under the Act. He summarised his general conclusions as follows:-

It seems to me that the local authority here have heeded the warnings of Kay J. and followed his judgment to the letter. The decision here is very different from the decision there. Upon a proper analysis of the October 9th letter, the local authority were informing the applicant:-

On that analysis a lawful decision to provide fares was taken, alternatives were suggested, no door was shut and no threats were made. In other words this local authority did follow the course suggested by Kay J. and I reject the judge’s view at the conclusion of his judgment that they had not done so.

The duty here is to provide accommodation for any child in need who appears to require accommodation as a result of his mother being prevented for whatever reason from providing him with suitable accommodation. The duty is quite clearly on the plain literal language of the section a duty to provide accommodation for the child, not for the parent and the child. In their decision letter the Social Services Department took account of the mother’s likely continuing refusal to accept the offer of fares to return back to Holland. Given the decision that the hotel accommodation was to end a week later, it was in my judgment a proper exercise of their powers and a due fulfilment of their duty to offer accommodation for B without mother. Indeed, Mr Howell does not contend otherwise.

Subsection 2 provides a range of ways in which the local authority may provide accommodation for a child whom they are looking after. That ranges from placing him with a family and a family as defined in section 17(10) includes any person who has parental responsibility for the child, so must include the mother. At the other end of the range the local authority may make such other arrangements as seem appropriate to them and in between there is the more usual placement with a foster parent or placement in some community home, voluntary home or registered children’s home.

It must be noted that the section applies to children whom the local authority are looking after. Section 22 provides that a reference to a child who is looked after by the local authority is a reference to a child who is provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their Social Services Committee. Whilst the mother and a child were staying in their bed and breakfast accommodation which is accommodation provided for them, if only in the sense of being paid for, by the local authority, then the child was nonetheless provided with accommodation in the exercise of one of the functions which stood referred to the Social Services Committee. The mother and B were there by virtue of powers exercised under section 17(3) and 17(6). Mr Supperstone submits that it is the mother rather than the child who is being provided with that accommodation. I cannot accept that submission. The accommodation was for both of them and it is impossible to separate one from the other. Mr Supperstone’s next submission is that the local authority’s decision is that at the expiration of the seven days notice they would not provide any accommodation for B and section 23 does not apply as from the cessation of that provision. At first blush that seemed an attractive argument. Mr Howell contends, however, that as the local authority offered to accommodate B alone under section 20, that makes him a child who is looked after by the local authority. He submits that section 23 is a regulatory provision to enable the local authority to decide what accommodation to provide. There has necessarily, he submits, to be some interval of time between the decision to provide some accommodation, the decision precisely what accommodation to offer from the range provided in section 23(2) and the child actually taking up that accommodation for a continuous period of more than twenty-four hours as required by section 22(2). In my view Mr Howell is right, sections 22 and 23 have to be construed purposively and so a child should be taken to be provided with accommodation from the moment a decision is taken to place him for a continuous period of more than twenty four hours at one of the places prescribed by section 23(2). Mr Howell submits that since the local authority decided that if the mother would not return to Holland, it would accommodate B pursuant to section 20, then it is providing him with accommodation in the exercise of their proper functions. I shall assume, for the purpose of this argument, that section 23 does apply. I must then consider the effect of section 23(6).

Mr Howell submits that upon a proper construction of section 23(6) the local authority are under a duty to accommodate both mother and child. I reject that argument for these reasons:-

It follows from all of the above that in my judgment the local authority did not act unlawfully in offering accommodation to B alone and in not offering accommodation to mother and child.

Mr Howell submits that if the local authority may only arrange for or assist in arranging for a child looked after by them to live outside England and Wales if the mother approves, this mother’s refusal to take her child back to Holland renders the local authority’s offer of financial assistance in her travelling there unlawful. Paragraph 19 was enacted for the purpose of ending what many would regard as the scandalous child migration schemes that led to so many children in care being sent to the Colonies because the power under the Children Act 1948 given to the Secretary of State to control that emigration was never exercised in time. I believe the last group of children were sent out to Australia in 1967 but it was not until January 1982 that any regulations were made to control this pernicious export. That is why children in care cannot be sent abroad without an order of the court and why under paragraph 19(2) children looked after by the local authority cannot be moved without the parents’ approval. In any event Mr Supperstone has the answer to this submission. Accepting that offering to pay the rail fares was assisting in arranging for B to live outside England and Wales, that assistance only becomes unlawful if it is done without parental approval. If the mother were to accept the offer then there is no problem. If on the other hand, the mother rejects the offer, as this mother implacably does wishing rather to die than to go back to Holland, then her rejection of the fares puts an end to any attempt to assist in arranging for the child to live outside the jurisdiction. What is unlawful under paragraph 19 is having arrangements in place or assisting in those arrangements which will lead inexorably to the child going to live abroad. Those arrangements are not in place in this case because the mother refuses to accept the offer of help. B is not going to be sent back to Holland without the mother’s approval. The action of the local authority in making the offer was of itself not in any way unlawful under paragraph 19.

There is, indeed, nothing unlawful in the actions of the local authority in this case. I would therefore allow the appeal against the order quashing the local authority’s decision and I would dismiss the mother’s application for judicial review.

Appeal allowed with costs here and below to be assessed by a costs Judge

Mother’s application for judicial review dismissed.

Reporting Restrictions

Leave to appeal to the House of Lords refused.