M, R (on the application of) v Islington & Anor

What powers do local authorities now have to provide accommodation for an adult who, not being an asylum-seeker, is unlawfully present in the United Kingdom and who is caring for a child? The answer requires me to consider changes in the law wrought by the Nationality, Immigration and Asylum Act 2002, and regulations made thereunder, which came into force on 8 January 2003.

The claimant is a female national of Guyana. She came to the U.K. early in 1998 with the benefit of a visitor’s visa valid for six months. She has lived here ever since. In November 1999 she married Mr M (“the husband”), a native of Antigua who has indefinite leave to reside in the U.K. The claimant and the husband set up home in his small council flat in Islington. On 17 October 2001 a daughter (“the child”) was born to them. In that, at the time of her birth, the husband was settled in the U.K, the child has British nationality. In August 2002 the husband left the claimant; and the marriage finally broke down. The claimant has continued to live with the child in the council flat, the tenancy of which, subject to substantial arrears of rent, has been transferred by court order into her name. But she is not entitled to state benefits. Pending determination of this claim, the Defendant (“Islington”) has been ordered to continue to allow the claimant and the child to occupy the flat notwithstanding that she has not been able to pay the rent; it is also properly giving effect to the spirit of the order by making payments enabling them to subsist meanwhile.

The claimant has made and continues to make strenuous attempts to secure indefinite leave to remain in the U.K. In June 1998, prior to the expiry of her visitor’s visa, she applied to the Secretary of State for an indefinite extension of her leave to remain. In July 2000 that application was refused; and the claimant did not appeal against it. Meanwhile, however, in December 1999, shortly after her marriage, she had made a fresh application for leave to remain in the U.K. by virtue of the marriage. In January 2002 that application was also refused, apparently on the basis that even then the marriage was no longer subsisting. That conclusion was apparently reached by reference to something said by the husband. In February 2002 the claimant appealed against that second refusal but even now, sixteen months later, the appeal remains unheard. In that now, at any rate, the marriage has broken down, the prospects for its success are accepted to be forlorn. In November 2002, however, further representations were submitted by the claimant, through solicitors, to the Secretary of State for a grant of exceptional leave to remain on compassionate grounds relating in particular to the child’s connections with the U.K and the claimant’s alleged inability to provide for her in Guyana. The Secretary of State has not yet responded to those representations. Miss Stern, who appears on behalf of the Secretary of State as an Interested Party, ascribes the delays in processing the claimant’s various attempts to secure indefinite residence in the U.K. to a shortage of resources and to the priority currently given to the processing of claims by asylum-seekers. She also points out that, even were the outstanding appeal dismissed and the outstanding representations rejected, the claimant might nevertheless make further representations to the Secretary of State to the effect that removal would infringe the human rights of herself and/or the child under the Human Rights Convention of 1950. As I will explain, the claimant is already raising substantial arguments to such effect in these proceedings. Were the Secretary of State to reject any such further representations and to decide to issue directions for her removal, the decision could be the subject of appeal to an adjudicator under s.65 of the Immigration and Asylum Act 1999.

On 27 January 2003, when these proceedings were issued, it was hesitantly assumed both by the claimant and by Islington that she was still lawfully present in the U.K. It was thought that such was the probable effect of pendency of the appeal against the refusal of the application in January 2002. On about 12 March 2003, however, the Secretary of State suggested that the claimant was no longer lawfully present in the U.K; and his view is now accepted by the claimant and by Islington as correct. It appears that the claimant’s first application for indefinite leave to remain, made prior to the expiry of her visa, won her a statutory extension of leave until 28 days after it was refused, i.e. until August 2000. Her second application, however, was made only within the period of extension statutorily granted to her by reason of her first application and therefore never attracted statutory extension in its own right: see paragraph 3(2)(c) of the Immigration (Variation of Leave) Order 1976 (1976 No. 1572); thus there is no such leave capable of further extension pending the appeal.

The discovery that the claimant is unlawfully present in the U.K. has had a major impact upon the shape of this application. First, it led Islington to review its previous decision, which (as I will explain) was to refuse to support the claimant and which was the initial subject of the challenge in these proceedings. In the event, as I will explain, Islington resolved essentially to adhere to its previous decision, although it considered that it needed to frame it by reference to different legal powers. The legal arguments raised in the case have shifted analogously and indeed dramatically.

In September 2002 the health visitor referred the claimant and the child to Islington’s social services department on the basis that they were in need of financial assistance. Islington embarked upon an assessment of the child’s needs under the Children Act 1989. The social worker allocated to the case conducted two meetings with the claimant, namely on 4 December 2002 and 7 January 2003; present at both interviews in order to assist the claimant was an adviser from Hackney Women’s Aid. I will need to look more carefully at what Islington gleaned about the case from these meetings. It suffices to say at this stage that at the second meeting the allocated worker explored at length the possibility that the claimant and the child might return to Guyana; and it is clear that, supported by her adviser, the claimant expressed vehement opposition to that course.

Following discussions between the allocated worker and senior members of her department, Islington reached a decision. On 14 January 2003 it was communicated orally to the claimant’s adviser: it was that Islington was not prepared to provide monetary or other assistance for the claimant to remain in the U.K. but was prepared to fund the purchase of one-way tickets to Guyana for her and the child. On 20 January 2003 the decision was communicated by letter from the allocated worker to the claimant’s adviser. In the letter Islington said:

“Following the referral you made in regards to the above family’s financial and housing situation, I am writing to inform you that I have completed my assessment on the family.

From the assessment it was obvious that the family have financial difficulties with very limited support network in the U.K. Unfortunately, this Department is unable to provide the ongoing financial support they require towards their rent and day-to-day subsistence.

The Department is of the opinion that it will be in the best interest of [the child] that [the claimant] considers returning to Guyana. This is because we feel that both [the child and the claimant] will be better supported by extended family members in Guyana.”

In the letter the allocated worker did not expressly repeat the offer to fund travel to Guyana; but such was no doubt implied. Islington’s written ‘core assessment’ of the child’s needs was sent to the claimant by her solicitors only on 3 March 2003. The document records that its compilation began on 4 December 2002 and that it was completed on 5 December 2002 and was updated on 30 January 2003.

Following the conclusion in mid-March that the claimant was unlawfully present in the U.K., Islington resolved to reconsider its decision, in the light, in particular, of any change in the relevant legal framework. It thereupon wrote a very careful letter dated 27 March 2003, which is now the target of the claimant’s assault in these proceedings. In the letter it set out its analysis of its powers and of their proper exercise in the light in particular of allegations made on behalf of the claimant that its refusal to provide accommodation and support for her and the child and/or its offer of tickets for them to return to Guyana would infringe their rights in particular under Articles 3 and 8 of the Convention of 1950. Subject to refinement, Islington in effect repeated its previous offer. It offered to fund the purchase of one-way tickets for the claimant and the child to travel to Guyana; that offer was made in purported exercise of its power under s.17 of the Act of 1989. Additionally it offered to provide accommodation for the claimant and the child for a period of 21 days (subject perhaps to a short extension) in order to enable her to make the travel arrangements; that offer was made pursuant to para. 3(3) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (S1 2002 No. 3078) (“the Regulations”). In the final paragraph of the letter Islington said:

“Two further matters: what Islington is doing is making an offer. It seems to us that this is inherently unlikely to amount to a breach of Convention rights. Moreover, as we have been careful to explain, we have not made any decision as to what would happen in the event that the offer was refused, even after having been found by the court to have been lawfully made. This is not a case where a decision has been made, still less a threat made, to take your child into care. Also we note that it is contended that Islington has failed to take into account that you would reject the offer. That is not so. In the event that you refuse to accept the offer made even following court proceedings, then Islington would continue to assess what is in the best interests of your child in the light of developing circumstances.”

On behalf of Islington Mr McGuire accepts that the basis of the decision dated 27 March, as of the decision dated 20 January, was a conclusion that the return of the child with the mother to Guyana would best safeguard and promote the child’s welfare.

In these proceedings Mr Knafler, on behalf of the claimant, asks me to quash the decision dated 27 March 2003. He submits that it was unlawful for Islington not to offer to accommodate the claimant and the child under the regulations of 2002 until such time, if any, as she failed to co-operate with any removal directions which the Secretary of State might issue against her. He submits that it was unlawful for Islington instead to make a decision to offer to fund the child’s travel with the claimant to Guyana under s.17 of the Act of 1989. He submits that Islington’s decision was based upon a flawed assessment of the child’s welfare and infringed her and the claimant’s human rights, in particular their right to respect for private and family life under Article 8 of the Convention of 1950.

The part of the Act of 2002 with which I am concerned is Schedule 3 (“the Schedule”), which has effect by virtue of s.54. Written into the text of s.54 is a summary of the Schedule, namely that it “makes provision for support to be withheld or withdrawn in certain circumstances”. The support to which it refers is support by local authorities under a raft of provisions set out in para. 1 of the Schedule, notably under the National Assistance Act 1948, the Act of 1989 and the Local Government Act 2000.

Paragraphs 4 to 7 of the Schedule identify four classes of person as ineligible for such support.

By para. 4, the first class is the person with refugee status in another state of the European Economic Area and, by para. 5, the second class isthe citizen of such other state. Perceived problems in relation to these two connected classes (“the E.E.A classes”) were a principal motive for the legislation in Schedule 3. Exemplified even by a number of reported cases, for example the decision of the Court of Appeal in R on the application of G v Barnet LBC [2001] 4 CCLR 128, was a practice whereby people of, say, Somali origin who had acquired refugee status in, or citizenship of, say, Sweden or Holland came to the U.K and, being ineligible for state benefits, applied to local authorities for support under one or more of the three statutes to which I have referred.

By para. 6, the third class is the failed asylum-seeker who has failed to co-operate with removal directions issued in respect of him.

By para. 7, the fourth class is the person who, not being an asylum-seeker, is unlawfully present in the United Kingdom. It is unnecessary to study the precise definition of that class because it is agreed that the claimant falls within it.

The Schedule provides three main “exceptions” to the ineligibility of the four classes for support:

Paragraphs 8, 9 and 10 of the Schedule are as follows:

“ Travel assistance

8.

The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph 1 applies by virtue of paragraph 4 or 5 to leave the United Kingdom.

Temporary Accommodation

9.

(1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person to whom paragraph 1 applies pending the implementation of arrangements made by virtue of paragraph 8.

(2)

Arrangements for a person by virtue of this paragraph -

(a)

may be made only if the person has with him a dependent child, and

(b)

may include arrangements for a dependent child.

10.

(1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person if -

(a)

paragraph 1 applies to him by virtue of paragraph 7, and

(b)

he has not failed to co-operate with removal directions issued in respect of him.

(2)

Arrangements for a person by virtue of this paragraph –

(a)

may be made only if the person has with him a dependent child, and

(b)

may include arrangements for a dependent child.”

The Schedule therefore enables regulations to be made which empower local authorities:

By para. 11(e) of the Schedule, any such regulations may require a local authority to have regard to guidance issued by the Secretary of State in making any such arrangements.

The nature of any power conferred by any regulation made pursuant to paras 8 to 10 of the Schedule is worth noting. The framework of the Schedule is to prohibit the exercise of a raft of powers. But it is wrong to think that the effect of any such regulation is that, in the circumstances there specified, such powers remain exercisable. The exercise of a power conferred by any such regulation is the exercise of a new, freestanding power, not of an existing power saved from prohibition. Such a conclusion may be collected from the contrast between the wording of para. 2(1)(c) of the Schedule and that of para. 2(1)(d) and (e): the latter gives the Secretary of State power to “disapply” the prohibition but the former makes clear that such is not the power which he would exercise if making regulations under paras 8 to 10.

The Regulations were made pursuant to the powers in paras 8 to 10 of the Schedule. Regulations 3 and 4 are as follows:

“ Power for local authorities to arrange

travel and provide accommodation

3.

(1) A local authority may make arrangements (“travel arrangements”) enabling a person with refugee status abroad or who is an EEA national to leave the United Kingdom to travel to the relevant EEA State.

(2)

A local authority may make arrangements for the accommodation of a person in respect of whom travel arrangements have been or are to be made pending the implementation of those arrangements.

(3)

A local authority may make arrangements for the accommodation of a person unlawfully in the United Kingdom who has not failed to co-operate with removal directions issued in respect of him.

(4)

Arrangements for a person by virtue of paragraph (2) or (3) –

(a)

may be made only if the person has with him a dependent child, and

(b)

may include arrangements for that child.

Requirements relating to travel and

accommodation arrangements

4.

(1) Travel arrangements and arrangements for accommodation must be made so as to secure implementation of those arrangements at the lowest practicable cost to the local authority.

(2)

Subject to the requirements in paragraph (1), travel arrangements made in respect of a person must be made so that the person leaves the United Kingdom as soon as practicable.

(3)

Travel arrangements and arrangements for accommodation may not include cash payments to a person in respect of whom the arrangements are made and must be made in such a way as to prevent the obtaining of services or benefits other than those specified in the arrangements.

(4)

A local authority must have regard to guidance issued by the Secretary of State in making travel arrangements and arrangements for accommodation.”

It will be seen that in themselves the Regulations put little flesh on the bones set in the enabling Schedule. Paragraphs (1) and (2) of Regulation 3 address the E.E.A. classes while (3) addresses the fourth class. Importantly, however, the Secretary of State has, by para. (4) of Regulation 4, made use of the power in para. 11(e) of the Schedule to require a local authority to have regard to guidance issued by him in exercising the powers in Regulation 3.

Such guidance (“the Guidance”) has duly been issued. Its material paragraphs are as follows:

“GUIDANCE TO ASSIST AUTHORITIES TO DETERMINE WHETHER TO MAKE TRAVEL ARRANGEMENTS/GRANT TEMPORARY SHORT-TERM ACCOMMODATION

27.

The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (hereafter referred to as “the Regulations 2002”) give limited powers to local authorities to make arrangements for:

(a)

Nationals of other EEA Member States; and

(b)

Those with refugee status in another EEA Member State

to travel back to that member state. No arrangements may be made in respect of failed asylum seekers and those unlawfully present in the UK – responsibility for making travel arrangements for these groups of person rests with the Home Office Immigration and Nationality Directorate.

28.

Additionally, Local Authorities are also granted a power under the Regulations 2002 to grant temporary short-term accommodation to some classes of person listed in Schedule 3 pending departure from the United Kingdom. The powers to grant temporary accommodation are limited to the following classes of person who have with them a dependent child:

(a)

Nationals of EEA states other than the UK;

(b)

Those with Refugee status in another EEA Member State; and

(c)

Those unlawfully present in the UK.

29.

There is no power to grant temporary accommodation to failed asylum seekers who are refusing to co-operate with removal directions, regardless of whether they have with them a dependent child. In cases where there is a dependent child, local authorities may grant temporary accommodation to the child only if the authority identifies that they have a duty to the child under section 20 of the Children Act 1989.

30.

By virtue of paragraph 11(e) of Schedule 3 to the 2002 Act, local authorities should have regard to the guidance set out in paragraphs 31 to 50 when determining how to make these arrangements.

Temporary Accommodation

31.

Accommodation is purely a temporary measure to allow a person with dependent children to be accommodated pending departure from the UK. Local authorities should have regard to the desirability of ensuring that the overall cost of accommodation and the return journey is as cost-effective as possible.

32.

For those persons returning to EEA Member States, it is preferable if accommodation does not continue for a period of more than a further 5 days from the date the family first presented for support or assistance to the local authority. For those returning to other countries, it is preferable if accommodation does not continue for a period of more than a further 10 days from the date the family first presented for support or assistance to the local authority.

33.

In the event of failure to travel, should the person have an acceptable reason and be able to provide acceptable proof, further accommodation could, in principle, be provided …

34.

Where an individual fails to travel and they do not provide an acceptable reason or cannot provide acceptable proof, further accommodation should not be provided to them as set out in the Regulations 2002 …

35.

In respect of individual(s) here unlawfully, the Home Office Immigration and Nationality Directorate will inform local authorities should the individual refuse to co-operate with removal directions. In such an event, all accommodation must be immediately terminated as set out in the Regulations 2002. Offers of care may be made to any children under Section 20 of the Children Act 1989. Again, it follows from the Regulations 2002 that no further accommodation, or any other form of support as defined in Paragraph 1(1) of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 should be provided to the adults.

36.

…

Travel Arrangements

…”

In that the claimant is unlawfully present in the U.K., has with her a dependent child and has not failed to co-operate with removal directions (none having been issued in respect of her), Mr Knafler argues that Islington has a power to arrange for her accommodation with the child under Regulation 3(3); that it was unlawful for Islington to decide not to exercise it other than in respect of about 21 days; and that the only lawful decision would have been to arrange for such accommodation unless and until the claimant did fail to co-operate with removal directions or until her presence in the U.K. ceased to be unlawful. With this argument Mr McGuire, supported by Miss Stern, strongly joins issue.

The central problem raised by Regulation 3 is that it seems to conflate two very different classes, namely the E.E.A. classes on the one hand and the fourth class on the other.

(a) Persons in the E.E.A. classes are not in the U.K. unlawfully and so the Secretary of State has no power to require their removal. Yet, whether as refugees or citizens, they belong to states where they are presumably entitled to public benefits and to which it would presumably be safe for them to be returned. In the U.K. they are not entitled to state benefits and in principle there is no reason why local authorities should support them. Thus, subject to the over-arching canopy of their human rights, it seems entirely appropriate that a local authority’s obligations towards them should be limited to arranging for their travel back to their E.E.A. state and, pending implementation of such travel arrangements as “have been or are to be made” and in the event that a child is present with them, to arranging for their accommodation. In that context, therefore, there is no reasonable call for the provision of any accommodation other than in the very short term.

Is such really the effect of Regulation 3 in its application to the fourth class?

It is agreed that the scope of a statutory power is often identified by a purposive interpretation. It would be odd to find a free-standing power to accommodate for a substantial period:

One answer to the conundrum might be for Regulation 3(3) to be so construed as to require that removal directions must have been issued, albeit of course for removal on a future date or on a date to be notified, before the power to accommodate arises. But neither Mr McGuire nor Miss Stern argues for that construction; and, in the light of their calibre, that speaks for itself. I have pointed out at §25(a) above that accommodation for the E.E.A. classes can be provided in advance of the making of travel arrangements and, although the difference of terminology cuts both ways, it would be odd if the power to accommodate persons in the fourth class was even more restrictive. Nor do I find it easy to ignore the fact that such a construction would run counter to para. 2 of the Introduction to the Guidance, which refers to the power to accommodate “those unlawfully present in the U.K. whilst they await removal directions from the Immigration Service”.

The answer, say Mr McGuire and Miss Stern, lies less in construction of the words of the power than in enquiry into the proper ambit of its exercise. Here the argument turns to the context of the power (see §27 above) and to the Guidance.

In relation to this power Parliament empowered the Secretary of State to require local authorities to “have regard to” guidance (para. 11(e) of the Schedule); and he has indeed required them to do so (Regulation 4(4)). There is an issue between the parties as to the proper treatment by local authorities of guidance to which they must “have regard”.

In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 Sedley J, as he then was, considered the effect of guidance issued under s.7(1) Local Authority Social Services Act 1970, which provided that “local authorities shall … act under the general guidance of the Secretary of State”. At 123J-K he said:

“While guidance and direction are semantically and legally different things and while ‘guidance does not compel any particular decision’ … especially when prefaced by the word ‘general’, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

While Mr McGuire argues that such, broadly, is the approach applicable to the Guidance in the present case, Mr Knafler differentiates between a duty to “act under” and a duty to “have regard to” guidance. He commends to me the approach of Lord Denning MR in De Falco v Crawley BC [1980] QB 460 at 478, where the statute under consideration, as here, required local authorities to “have regard to” guidance:

“The council, of course, had to have regard to the code … but, having done so, they could depart from it if they thought fit. This is a case in which they were perfectly entitled to depart from it …”

In my view there is, as Mr Knafler suggests, some difference between the two duties, although I suspect that the difference is more theoretical than real. An injunction to “act under” something does seem slightly stronger than an injunction to “have regard to” something in taking action. Indeed in the Schedule itself there is a third formulation: for, in paragraph 2(3)(a) and (5), there are references to taking steps and acting “in accordance with” guidance; and presumably Parliament’s choice of slightly different words in paragraph 11(e) is intended to convey a slightly different meaning. On the other hand in all these situations the subject-matter is the same, i.e. merely “guidance”; and indeed, in the Rixon case, it was “general” guidance. “It’s as broad as it’s long”, says Mr McGuire. It’s nearly as broad as it’s long, say I.

Mr Knafler is deeply critical of the drafting of the Guidance. He says that in a number of passages the draftsman seems to forget that the accommodation arranged for the fourth class may on the face of the Regulation endure for a much longer period than accommodation arranged for the E.E.A. classes. Thus he says that:

Mr Knafler has referred me to two authorities in which Lord Hoffmann has held that governmental guidance about the effect of legislation was simply wrong and should be ignored: R v Brent LBC ex p Awua [1996] AC 55 at 70C and R v Wandsworth LBC ex p Beckwith [1996] 1 WLR 60 at 65B. But I do not discern in the Guidance any significant misrepresentation about the effect of Regulation 3. On the contrary, the problems in the Guidance to which Mr Knafler refers are mostly echoes of the difficult conflation in the Regulation itself to which I referred at §24 above.

No one, however charitably inclined, would be convinced that behind Regulation 3(3) or the Guidance issued in relation to it lies much sophisticated thought. But I am clear that, in the light of the legislative purpose and the Guidance to which they must have regard, it would seldom be lawful for local authorities to exercise their new power thereunder, whatever its ostensible ambit, to provide accommodation for a person in the fourth class on an indefinite basis, particularly when there was no reason to believe that removal directions would be issued in the near future: such provision would usually be too gross a divergence from the objective of providing temporary accommodation, pending departure and preferably for no more than 10 days, set out in the Guidance. Here Mr Knafler’s task is, by contrast, to show that Islington’s decision to offer accommodation under the Regulation for only 21 days (subject perhaps to a short extension) is itself positively unlawful. In this regard even Mr Knafler fails.

Thus the argument turns to the second main “ exception” set out at §15(b) above. The question there posed for Islington was whether the exercise of one of its powers or the performance of one of its duties, otherwise prohibited under the Schedule, was necessary for the purpose of avoiding a breach of a person’s rights under the Convention of 1950.

Which powers or duties? Which Convention rights?

It is agreed that the relevant power is contained in s.17(3) of the Act of 1989. The power in s.17(3) is subsidiary to the target duty, cast upon local authorities by s.17(1), 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. Section 17(3) makes clear that, in discharging that duty, local authorities have power to provide not only for the child but also for an adult member of his family. Two illustrations of this power, established in current case law, are relevant to this case: first the power to accommodate a child with one or more adult members of his family (R on the application of W v Lambeth LBC, C.A., [2002] 2 All ER 901) and second, subject to a submission of Mr Knafler which I will address at §45 below, the power to provide tickets for a child and one or more adult members of his family to return together abroad (R on the application of G v Barnet LBC, C.A., cited at §12 above). Mr McGuire accepts that, were it to be necessary to exercise either of these powers for the purpose of avoiding a breach of Convention rights, the power should indeed be exercised: i.e. the power becomes, in effect, a duty.

The Convention right central to this case is a person’s right, set by Article 8.1 but qualified by 8.2, to respect for his private and family life and his home. Concentration has been placed upon the rights of the child and the claimant in this respect; but, as I will explain, the rights of the husband must not be ignored. Mr Knafler has also referred to the rights of the child and of the claimant under Article 3 not to be subjected to inhuman or degrading treatment. But he no longer relies on the claimant’s right to a fair trial under Article 6.

Islington has made an offer under s.17 to provide tickets for the child and the claimant to return together to Guyana. The offer is now, more widely, based upon a conclusion for the purpose of para. 3 of the Schedule that it is necessary to make it for the purpose of avoiding a breach of Convention rights, viz. a breach of the right of the child and the claimant to respect for their family life which would arise in the event that they were to remain, without means of support, in the U.K. But such is not the only basis of the offer. The offer was first made in January 2003, before it was realised that the claimant fell within the Schedule. The offer was then wholly based – and must remain more narrowly based – upon the pre-requisite for support under s.17 set within the section, namely upon a conclusion that it would “safeguard and promote the welfare” of the child to travel with the claimant to Guyana. It is clear that the two conclusions which currently combine to form the basis of the offer substantially overlap.

I must decide whether Islington’s offer of tickets under s.17 was lawful in the sense, in particular, of whether the decision to make it was both rational and properly reached. But I should also bear in mind what I must not decide. In particular I must not proceed to decide whether it would be unlawful for Islington to refuse to offer accommodation for the claimant and the child under s.17 for longer than the 21 days already offered under Regulation 3(3). I must not decide that question because Islington has been careful not to refuse to make an offer of accommodation under s.17 in the event that the offer of tickets was not accepted by the claimant or was held to be unlawful.

In this area of the case Mr Knafler presents two preliminary arguments.

His first argument concentrates on the word “necessary” in para. 3 of the Schedule. How, he asks, can it be “necessary” to use other powers in order to avoid breach of the rights of the child and the claimant under Article 8 when it can be avoided by the provision of accommodation in the longer term under Regulation 3(3)? Mr Knafler denies that this argument amounts to a reprise of an already ill-received song. He submits that the power under Regulation 3(3), even if usually exercisable only in the very short term, “may be exercised … from time to time, as occasion requires” (s.12(1) Interpretation Act 1978) and so is, at least, capable of such re-exercise as would render the exercise of other powers not “necessary”. In the light of my conclusion at §36 above that it would seldom be lawful for local authorities to exercise the power under Regulation 3(3) on an indefinite basis, this argument fails: repeated re-exercise to achieve the same result would be just as unlawful. Of course under s.6 Human Rights Act 1998 powers must not be exercised incompatibly with human rights: but, where there are two powers to accommodate, there is nothing unlawful in the identification of one power, rather than of the other, as fit for exercise for the purpose of avoiding breach.

Mr Knafler’s second argument is that, although a power to offer tickets for travel abroad falls within s.17, its exercise should be inhibited by consideration of the statutory scheme, exemplified by Schedule 3 itself, that, in respect of persons such as the claimant, it is for the Secretary of State, and not for a local authority, to make arrangements for travel abroad. In my view this argument confuses the power to compel removal, which is exercisable only by the Secretary of State, with the power to facilitate voluntary departure, which is exercisable in certain circumstances by a local authority. Islington has made only an offer, which the claimant may or may not accept. If, as Mr McGuire commends as a rational conclusion, it would safeguard and promote the welfare of the child to return with the claimant to Guyana, would it be unlawful for Islington to exercise its power under s.17 at least to offer tickets for travel thither? On that hypothesis, my answer, like his, is: no.

Thus the effect of my judgment is to reduce the case to the following question: was it open to Islington to conclude that the child’s travel to Guyana with the claimant:

There is no doubt that, in considering rights under Article 8 and the child’s welfare, Islington had well in mind her right and that of the claimant to respect for their family life and, specifically, the desirability that the claimant should be enabled to continue to care for the child. But there was another aspect of rights under Article 8 and indeed of welfare: the rights of the child and the husband to respect for their family life together or, cast in terms of welfare, the value for a child of a relationship with the non-residential parent.

When in December 2002 Islington began its assessment, there was no contact between the child and the husband. We now know that, by solicitors, the husband was then already pressing for contact and the claimant was refusing it; but Islington was probably unaware of that. It was aware, by contrast, that the marriage had broken down only recently and that it would probably be easy to trace him. But Islington did not seek to communicate with him. In the ‘core assessment’ the only reference to the child’s contact with the husband was that it was a subject upon which the claimant needed to provide clarity. There is no reference to it in the first decision letter dated 20 January 2003.

By the time, however, of the second decision letter dated 27 March 2003, Islington knew more. It knew that on 7 February the claimant and the husband had signed a Contact Centre User’s Agreement and that on 22 February contact, intended to be weekly, had begun at the centre between the child and the husband, although the pattern had quickly been interrupted by illness. But there was still no attempt by Islington to communicate with the husband; and, in the second decision letter, there was again no reference to his contact with the child. When the claimant’s solicitors pointed out its apparent failure to address the effect of travel to Guyana on the child’s relationship with the husband, Islington denied that it had failed to address it and stated that “there will be no impact on family life” caused by a removal to Guyana. In an earlier witness statement Islington’s team manager in charge of the case had stated that the child and the husband “could maintain contact from abroad”.

I do not accept the rationality of either of the two statements last quoted and I am driven to the conclusion that Islington’s decision to favour a move to Guyana was vitiated by inadequate consideration of its effect on the child’s relationship with the husband. I do not, however, prejudge what the effect of adequate consideration thereof on the decision would be. There is no doubt that in these circumstances a right to respect for their mutual family life arises both in the child and in the husband: see for example Ciliz v The Netherlands [2000] 2 FLR 469, where a husband’s deportation to Turkey after four years of very intermittent contact with his child in Holland was held by the European Court of Human Rights to be an interference with his right to respect for his family life which, in the circumstances, was not “necessary in a democratic society” even in the interests of maintaining an effective immigration policy. Equally there is no doubt that, in any analysis of a child’s welfare under domestic law, a major consideration in any proposal that a child should live abroad with the residential parent should be any effect on the child’s relationship with the non-residential parent.

There is a related but wider point. Indeed Mr Knafler presents it as an entirely free-standing point. He says that, in that by reason of the marriage the husband shares parental responsibility with the claimant for the child, it would be unlawful for the claimant to remove the child from England and Wales without the husband’s consent or the permission of the court. He submits that, even if not rendered specifically unlawful by the Act of 1989, such removal would probably be a criminal offence under the Child Abduction Act 1984 and would certainly rank as a wrongful removal for the purpose of the Hague Convention 1980 set out in Schedule 1 to the Child Abduction and Custody Act 1985. For that reason alone, submits Mr Knafler, Islington’s decision was unlawful. Mr McGuire’s response is that Islington’s decision was not, indeed could not be, to effect the child’s removal but was only to make an offer to facilitate it; and that, if the mother rejected it on the basis that she lacked the husband’s consent to any removal and had failed (or would fail) to procure the permission of the court, such would be an unassailable reason for rejection which would clearly require Islington to think again. I prefer to treat Mr Knafler’s point as but part of Islington’s unlawful failure to consider the role of the husband before reaching its decision. It clearly failed to pay any regard to the need for the claimant to obtain his consent or the court’s permission before removing the child. And, before reaching any such decision, a local authority must, for this specific reason (where it arises) as well as for other obvious general reasons, seek to obtain the views of every person with parental responsibility for the child unless (perhaps) it is clear that such a person has chosen to move entirely and apparently permanently out of the child’s life.

But in my judgment Islington’s decision to offer tickets is unlawful for a second reason. It relates to the insufficiency of the material before it as to the likely circumstances of the child and the claimant in Guyana.

According to Islington’s note of the second meeting with her on 7 January 2003, the claimant explained that her family in Guyana comprised an elderly mother and a brother and his family, with whom the mother, who was very ill, lived. There is no indication in the note – nor does Islington allege – that the claimant indicated that it would be possible for her and the child to stay with them or indeed with any one else in Guyana. The note does however indicate that the claimant said that she would be unable to find a job there and that, even if she did so, there would be nobody to care for the child. That was the sum of the material before Islington when it wrote its first decision letter dated 20 January, in which it suggested that the child and the claimant would “be better supported by extended family members in Guyana”. In my view the material was insufficient to justify that suggestion.

Four days after writing that letter Islington telephoned the Guyanese embassy and elicited some general information about the availability of jobs and of welfare benefits, apparently of a very limited character, in Guyana.

In the ‘core assessment’, completed on 5 December 2002 and updated on 30 January 2003, Islington – at some stage – wrote as follows:

“[The claimant] to consider going back to Guyana where she has extended family network support and the opportunity to work. SSD is of the view that this would be in [the child’s] best interests and will proceed with exploring the viability of this option. This will include contacting extended family in Guyana.”

Later it added:

“[The child] has an uncle in Guyana with whom she and her mother can stay temporarily.”

Islington never contacted any member of the claimant’s extended family in Guyana. In a witness statement dated 27 February 2003 the team leader, whose integrity is beyond question, wrote that the claimant had refused several requests on the part of Islington for her to provide contact details of the extended family. This the claimant denies: she says that she was first asked for such details on 18 February and provided them there and then. There is no copy letter nor even any internal Islington memorandum which suggests any earlier request for the details. At all events, in the light of this factual dispute, the claimant’s solicitors wrote to Islington by letter dated 7 March and therein provided the names and addresses of the mother and the brother. Even thereafter Islington made no attempt to contact either of them.

Meanwhile, in two statements signed in these proceedings, the claimant stated that the accommodation in which her brother, his wife and their two daughters lived and into which their mother was about to move was a two bedroom flat and that it would be impossible for her and the child also to live there. She reiterated that she would be unable to work because of the child’s need for care.

In the above circumstances, and notwithstanding the considerable uncertainties surrounding their continued life together in England to which Islington rightly had regard, there was wholly insufficient material to justify its conclusion that the claimant and the child would be able to live adequately in Guyana; thus that it was necessary for the purpose of avoiding a breach of their Convention rights to exercise a power to offer them tickets to go to live there; and that to live there would safeguard and promote the child’s welfare.

For each of those two reasons Islington’s assessment was flawed. Its decision to offer tickets under s.17 must be quashed and Islington must reconsider what decision to make about any exercise of its powers for the benefit of the child, including in relation to the claimant, under that section.