Paul-Coker, R (on the application of) v London Borough of Southwark

MR JUSTICE FORBES: This is a homelessness matter under Part VII of the Housing Act 1996 ("the 1996 Act"), whereby the claimant seeks judicial review of the decision of the defendant Local Authority to refuse to provide interim accommodation pending review under section 188(3) of the 1996 Act. The decision in question was contained in a letter dated 24 January 2006, to which I shall come in due course.

The matter has been set down very quickly. The claim was issued on 27 January 2006. On 2 February 2006 the defendant filed its Acknowledgment of Service and Summary Grounds of Defence. On 8 February 2006 Hughes J considered the matter on paper and granted permission to apply for judicial review. The judge also made the following written observations:

Finally, Hughes J made an order that the substantive claim and application for a mandatory order be heard within 14 days. So it was that the matter came before me.

I turn first to deal with the legal framework. The legislative scheme for the housing of homeless persons by local authorities is set out in Part VII of the 1996 Act. A person must apply to an authority for assistance in order for the local authority to be under an obligation to decide what duty, if any, it owes to the applicant: see section 183 of the 1996 Act. If a local authority has reason to believe that a person may be homeless or threatened with homelessness, it is under an obligation to make such enquiries as are necessary to satisfy itself whether the applicant is eligible for assistance, and if so whether any duty, and if so what duty, is owed to the defendant under Part VII. The definition of homelessness is actually set out in sections 175-177 of the Act. However, it is not necessary to quote those provisions since there is no issue in this case as to the fact of the claimant's homeless state.

When considering what duty, if any, is owed to the applicant, a local authority needs to consider whether the applicant can bring herself within a category of priority need under section 189 of the 1996 Act, and whether or not the applicant became homeless intentionally: see section 191 of the 1996 Act. There are different types of duties that may be owed depending on the outcome of the enquiries. These can be found in sections 190, 192, 193 and 195 of the 1996 Act. Again, it is not necessary to quote these provisions for the purposes of this judgment.

When a local authority has concluded its enquiries, it must notify the applicant of its decision as to what duty, if any, is owed to the applicant: see section 184(3). Such a decision can be the subject of a review under section 202, and the review itself can be challenged on a point of law under section 204 of the 1996 Act. These important and relevant statutory provisions are in the following terms:

By section 185(1) a person is not eligible for housing assistance under Part VII if he or she is (a) a person from abroad and (b) ineligible for housing assistance. By section 185(3) the Secretary of State may make provision by regulations for descriptions of persons from abroad who are to be treated as ineligible for housing assistance. The terms of section 185(1) and (3), which are the relevant statutory provisions to which I have just referred, are as follows:

The relevant Regulations made by the Secretary of State under the power granted by section 185(3) of the 1996 Act are the Homelessness (England) Regulations 2000, SI 701 (as amended). Regulation 4 of those Regulations is the relevant Regulation with which this case is concerned. It is in the following terms:

Whilst an applicant is pursuing her application as to whether she is owed a full duty, and, if so, what duty, the question of whether a local authority ought to provide interim accommodation inevitably arises. Pending a decision on the full duty owed under section 184, a local authority is under a duty under section 188(1) to provide interim accommodation where they have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need.

Section 188(1) and sub-section (3), so far as material, provide as follows:

It can therefore be seen that when a local authority makes a decision on the duty owed under section 184, the duty to provide interim accommodation ceases by virtue of section 188(3). However, the same sub-section provides a power to continue to provide accommodation pending review if such a review has been requested. After review and pending appeal to the county court under section 204, in a case such as the present the applicant can apply to the county court for an order that the local authority provide interim accommodation: see the terms of section 204A(1) and sub-section (4)(a), which provide as follows:

It can therefore be seen that, under section 188(3), a local authority has a discretion as to whether or not it should exercise its power to provide accommodation pending review. It is common ground that this power is constrained by the public law requirement not to act in a manner that is Wednesbury unreasonable or otherwise so as to constitute an abuse of power.

So far as concerns the court's jurisdiction to review the exercise of a local authority's exercise of an administrative discretion, such as the one with which this case is concerned, I accept that the locus classicus is the House of Lords decision in the case of R v Hillingdon LBC ex p Puhlhofer [1986] AC 484. The leading speech was delivered by Lord Brightman, with whom other members of the House agreed. At page 518 Lord Brightman said this:

In Francis v Kensington [2003] EWCA Civ 443, the Court of Appeal considered the extent and ambit of sections 204(4) and 204A of the 1996 Act. In the course of the judgment, the court also came to consider the nature of the discretion under section 188(3). The particular case concerned the power to accommodate pending an appeal to the County Court on a point of law. Simon Brown LJ (as he then was) stated:

Simon Brown LJ went on to consider the case of R v Brighton and Hove Borough Council, ex p Nacion [1999] 31 HLR 1095. He quoted from that latter case and from the judgment of Tuckey LJ, who said this:

In Francis, Simon Brown LJ also went on to consider a statement of Lord Woolf MR as he then was in Ali, which was in the following terms:

As I have already indicated, it is, in effect, common ground that the relevant principles upon which the discretion under section 188(3) is to be exercised were formulated in the well-known case of R v Camden London Borough Council ex p Mohammed [1998] 30 HLR 315: see the quotation from the headnote in that case as cited by Tuckey LJ in ex p Nacion quoted above. However, it should also be noted that the Mohammed guidelines are effectively reproduced in the relevant Code (ie The Homelessness Code of Guidance for Local Authorities, July 2002, published by the Office of the Deputy Prime Minister). Paragraph 14.12 of the Code states as follows:

It is to be noted that, in the exercise of its functions relating to homelessness, a local housing authority is under a duty to have regard to the guidance set out in the Code: see the terms of section 182(1) and (2) which, so far as material, are in the following terms:

Given the terms of Regulation 4A of the Homeless Regulations 2000 (see above) and the factual circumstances of this case (as to which, see below), it is helpful at this stage in my judgment to summarise how the term "habitual residence" is understood in English law. For the avoidance of doubt, Mr Berry, on behalf of the claimant, stressed that no reliance was placed upon the way in which the term is sometimes understood by reference to European Community law. Mr Berry referred, first, to the case of Re J (a minor) (Abduction: Custody Rights) [1990] 2 AC 562, and the passage from the speech of Lord Brandon at page 578 F-G, at which he said this:

In effect, it was common ground that there appear to be two basic requirements that need to be fulfilled in order for habitual residence to be established. The first such requirement is that an appreciable period of time must elapse before a person can be considered habitually resident. The second such requirement is that the claimant must have a settled intention to reside in the United Kingdom.

Turning first to deal with the first of those two requirements, namely an appreciable period of time, it is plain that this is a factor which will vary from case to case. In respect of the need for an appreciable period of time to elapse, Mr Berry referred to Nessa v Chief Adjudication Officer [1998] 2 All ER 728, which is the report of the decision of the Court of Appeal, and to the same case in [1999] 4 All ER 677, which is the report of the decision of the House of Lords in the same case. For the purposes of this judgment, it is necessary only to quote from the speech of Lord Slynn in the House of Lords at pages 682 to 683 where he said this:

It is therefore clear that what constitutes an appreciable period of time for these purposes will vary from case to case and will depend on the facts of the individual case. Thus, in CIS 4474/2003, the Commissioner, deciding that matter, noted that:

I now turn to the second requirement when considering the issue of habitual residence, namely a settled intention to reside.

In Shah v Barnet [1983] 1 All ER 226 at 234, Lord Scarman stated, when discussing the concept of ordinary residence, that:

Further on in page 235, at letters H-G, Lord Scarman said:

As to whether there is a settled intention, various factors have been suggested as aids to assessment. These include a claimant's reasons for coming to the United Kingdom and where a claimant's centre of interest lies. However, I accept that there is no binding or closed list of factors that are required to be considered, and no regulation of the weight to be given to the facts marshalled behind each factor specified. The definition of Lord Scarman sets out the necessary principles that govern the decision, namely:

Annex 22 of the Code of Guidance for Local Authorities also sets out a number of factors to be considered in assessing habitual residence. It also sets out the general principles to be applied. It is, in general terms, very helpful in that regard.

Finally, on this aspect of the matter it is to be noted that both ordinary residence and habitual residence are referred to in the authorities. For all practical purposes, these appear to be interchangeable concepts, and certainly nothing of any significance turns in this case on the use of those two different expressions: see the speech of Baroness Hale in Mark v Mark [2005] UKHL 42 at paragraph 33.

I now turn to deal with the facts. The claimant is a young woman aged 20. She is a British citizen, born of a British mother in Sierra Leone on 10 July 1986. It appears that she came to the United Kingdom with her parents in 1981, staying here until 2000, when she returned to Sierra Leone with her father. She then came back to the United Kingdom for three extended holidays during June to September 2003; June to September 2004; and December 2004 to January 2005. On 6 May 2005 the claimant returned to the United Kingdom and went to live with her uncle. On 8 September 2005, following the breakdown of the arrangements with her uncle, the claimant approached the defendant for assistance as homeless under Part VII of the 1996 Act.

On 16 September 2005 the defendant made a decision under section 184 of the 1996 Act that the claimant was not eligible for assistance within the meaning of section 185 of the 1996 Act on the basis that she was not habitually resident. So far as material, the decision letter was in the following terms:

On 4 October 2005 the claimant's previous solicitors requested a review of that decision, and interim accommodation pending review. The solicitor's letter noted that the claimant had lived in the United Kingdom for nine years, had attended Waverley School in Peckham, and has now returned to the United Kingdom to embark on a full-time college course. It also noted that she was pregnant and living with a friend in her friend's bedroom.

On 25 November 2005 the defendant issued a review decision under section 202 of the 1996 Act. This decision letter is not the subject of challenge in these proceedings, however its contents are important and merit being extensively quoted as follows:

On 29 December 2005 the claimant re-presented herself at the defendant's Homeless Persons Unit. On 30 December 2005 the defendant made a fresh decision under section 184 of the 1996 Act that the claimant was not eligible for assistance within the meaning of section 185 of the 1996 Act, again on the basis that she was not habitually resident. In the letter, the defendant asserted, inter alia, that:

On 20 January 2006, the claimant sent the defendant a request for a review of the decision and for interim accommodation pending review. The request was sent on her behalf by the solicitors now acting for her. The solicitors' letter in question was, so far as material, in the following terms:

On 24 January 2006 the defendant replied, refusing interim accommodation pending review. This is the decision under challenge and was expressed in the following terms:

Proceeding with the letter:

When dealing with the first ground of challenge, Mr Berry submitted that it was clear from the terms of the decision letter that there had been no properly directed consideration of the factors and criteria listed in ex p Mohammed as being the appropriate matters for consideration in cases such as the present. He maintained that, whilst the factors to be considered are set out in the letter, the reasoning in support (such as it is) simply does not address the merits of the case, nor the extent to which it could properly be said that the decision was one which appears contrary to the apparent merits, or was one which required a very fine balance of judgment that could have gone either way. Mr Berry submitted that the reasoning in the letter of 24 January 2006 simply did not address the test in an adequate and sufficient manner. Thus, he submitted, there is no specific reason given as to why a period of over seven months residence was considered insufficient at this time, and why it could not be said to amount to an appreciable period of time. He pointed out that seven months is far longer than the periods of time that are usually required for satisfaction of the appreciable period of time element of the habitual residence test. He submitted that strong and cogent reasons were needed for the apparently adverse conclusion reached and that such reasons are conspicuous by their absence.

Mr Berry submitted, further, that there is no adequate reasoning given as to why the birth of the baby has made no difference to the satisfaction of the habitual residence test. He suggested, in my view with considerable force, that it is a highly material factor. A baby born in the United Kingdom to a mother who is a British citizen is automatically a British citizen: see section 1(1) of the British Nationality Act 1981. Mr Berry submitted that it is unreasonable to more of less disregard or discount the birth of a British citizen to another British citizen in Britain and to conclude, in effect, that it did not constitute powerful evidence of a settled intention to reside for habitual residence purposes. But that is what it appears that the decision-maker has done. Mr Berry submitted that strong and cogent reasons were required for the apparent adverse conclusion reached on this aspect of the matter by the decision-maker. Again, such reasons are conspicuous by their absence.

Mr Berry submitted, further, that no consideration at all was given as to why the claimant's return to the United Kingdom for visits in 2003, 2004 and 205, the fact that she travelled on a single airfare, the fact that she considers the United Kingdom to be her home, the fact that she lived here in her formative years as a child and left because her parents decided to leave, the fact that she had friends and family here, and the fact that she brought all her belongings with her, made no material difference. He pointed out that all these matters had been raised in the claimant's solicitor's letter of 20 January 2006, effectively for the first time, and were therefore to all intents new material for appropriate consideration by the decision-maker. But the letter in question gives little or no indication as to what, if any, real consideration was given to any of these matters.

Mr Berry submitted, correctly in my view, that all these matters were relevant to the assessment of the extent to which it could properly be said that the decision was one that was either contrary to the apparent merits or was one which involved a very fine balance and judgment.

Having regard to these additional matters, Mr Berry went on to point out that the decision letter was simply wrong when it asserted that, apart from the passage of time and the birth of the baby, there was no further evidence to show that the claimant is habitually resident in the United Kingdom.

Mr Berry also submitted that the section 188(3) decision of 24 January 2006 plainly follows on from the section 184 letter of 29 December 2005. He suggested, correctly in my view, that the latter letter contains an obvious misdirection in law when it states that, in order to be eligible, "You must have been habitually resident in the United Kingdom for at least six months prior to your application for housing assistance". As Mr Berry pointed out, there is no such test. Thus, the section 184 decision, upon which the reasoning in the section 188(3) decision letter of 24 January 2006 is largely based when considering the extent to which the claimant's arguments invite the conclusion that it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balancing judgment, was itself founded on a significant error of great materiality, yet there appears to have been no consideration given to that important aspect of the matter when the decision-maker was assessing the merits.

On behalf of the defendants, Mr Broatch submitted that a perusal of the letter of 24 January 2006 shows that the substance of the Mohammed guidelines had been applied. In this regard, he stressed that the Code of Guidance replicates the Mohammed guidelines as I have indicated earlier in this judgment. He submitted that not only had the guidelines been applied, but the decision-maker had given an adequate summary of all the relevant criteria. Mr Broatch suggested that the decision-maker had looked at the merits of the claimant's case on review and whether it was a decision which, on its face, appeared to be contrary to the merits, or a finely balanced decision which could have gone either way. He has also looked at the claimant's personal circumstances. Mr Broatch submitted that, in considering the merits of the review, the decision-maker looked at all the relevant material concerning the claimant's eligibility and noted that, apart from the birth of the baby, there had been no new material available to the Council since the earlier decision.

Mr Broatch therefore contended that all the above factors were entirely in accordance with the Code and the Mohammed guidelines. He submitted that there had been a balancing of a basket of factors and a proper exercise of discretion which was not susceptible to any appropriate challenge on Wednesbury principles.

Mr Broatch also submitted that the first ground of challenge was, in effect, a reasons challenge, and he referred to the decision of R v Brent LBC ex p Baruwa [1987] HLR 915 per Schiemann LJ at page 920, in which he stated:

Mr Broatch submitted that decisions are not to be faulted because not every single matter is mentioned or every reason set out. He referred to the case of Tickner v Mole Valley District Council [1980] LAG 187 in the judgment of Lord Denning MR in that case. Mr Broatch therefore submitted that the reasons given in the 2 January 2006 letter satisfied the Baruwa test in that the claimant and her advisers were given sufficient reasons to know why she had lost her application.

I do not agree. As it seems to me, the letter of 24 January 2006 does little more than identify the relevant criteria, but does little or nothing to apply the relevant facts of this case to those criteria and reach a properly or adequately reasoned decision. Thus, in particular, no explanation or reasons are given as to why over seven months' residence is apparently considered insufficient to satisfy the appreciable period of time element of the habitual residence test. In my view, it is not without significance that the "six months error" that is to be found in both section 184 decisions was not expressly, or indeed implicitly, disavowed in either the review decision letter of 25 November 2005, or the decision letter under challenge of 24 January 2006. Both letters were written by the same decision-maker.

Furthermore, the evidential importance of the birth of Ms Paul-Coker's baby is simply not addressed in the decision letter. Nor is the other important additional material that had been specifically brought to the attention of the local authority: that is to say the fact that the claimant lived and was educated here during her formative years; the fact that she has spent a number of extended holidays here in 2003, 2004 and 2005; the fact that she travelled to United Kingdom on a single airfare ticket, bringing all her belongings with her; and the fact that she has friends and family in the United Kingdom.

In my view, the complete absence of any explanation or reasoning in the decision letter, dealing with these various important aspects of the case, demonstrates that the ex p Mohammed balancing exercise has not been fully or properly carried out by the decision-maker, despite lip service having been paid to it. The fact that the decision-maker in his earlier review decision of 25 November 2005 made a clear finding (see page 2 of the letter) that he was "satisfied that your decision to return to the UK was not to resume a former period of habitual residence, but was to start a new life for yourself as a young adult (my emphasis)", ie in effect a finding of an intention to settle on the part of the claimant, made it all the more necessary for careful consideration to be given to the material identified above, and for an adequate explanation and/or reasons to be given for such conclusions as were reached on the merits of the case in the light of that important material.

For those reasons, I have therefore come to the firm conclusion that there has not been a properly directed consideration of the factors identified in ex p Mohammed. In particular, there has not been any proper consideration of the merits of the case and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits, or was one which involved a very fine balance of judgment.

It follows that I am therefore satisfied that the decision contained in the letter of 24 January 2006 is one of those exceptional cases in which my conclusion is that the decision was, for the reasons indicated, Wednesbury unreasonable and/or irrational. The first ground of challenge, therefore, succeeds for that reason, and the decision in question must be quashed.

As it seems to me, my conclusion on ground 1 makes it unnecessary to go on and consider the remaining grounds of challenge, which either do not add very much to the first ground or, to some extent, overlap it, or are effectively incorporated into it: see for example ground 3.

For the foregoing reasons, this application for judicial review succeeds. I will hear further submissions from counsel on the appropriate terms of the order.

MR BERRY: My Lord, I am grateful. If I could just take instructions for a moment. My Lord, there was an application as well for a mandatory order in this case as part of the initial claim as lodged. I am aware at the moment that the claimant is being accommodated on a without prejudice basis, effectively, by Social Services.

MR JUSTICE FORBES: Yes, I will hear what Mr Broatch has to say about a mandatory order, but it seems to me at first blush that what you have is a quashing of the decision. That opens the door to you again to go back for an immediate further decision, and, in the light of my judgment, it would be surprising if the decision was the same as the one we have had so far.

MR BERRY: My Lord, I am told on instructions that Social Services expect her to leave her current accommodation on Tuesday. So there may be some scope for -- maybe Mr Broatch can assist on what the local authority's plans are. I do see the force of your Lordship's point about the force of the judgment.

MR JUSTICE FORBES: When I completed the judgment, of course it left me wondering, beyond quashing the decision, how much further I could go in all the circumstances. It is not unusual, of course, in cases such as this for agreement to be reached as to what should be done. I do not know, if I rise for a few moments, whether that might be productive. Is there any point in me giving you a moment?

MR BROATCH: My Lord, it seems to me that we may be --

MR JUSTICE FORBES: You are still a bit shell-shocked, are you, Mr Broatch?

MR BROATCH: I do not think shell-shocked is the word I would have used. One knows that many judgments delivered in these buildings are not ones which are expected. But your Lordship quashes the decision, which means there is no section 188 decision, ergo the authority have a statutory duty to make a fresh decision on that point. It is also worthy of note that the review decision under section 202 has still not been made -- 56 days has not elapsed -- although the authority could make it earlier once it receives the applicant's solicitor's final representations. So a possibility which your Lordship -- I do not think I have anybody here from whom I can take instructions to get an undertaking -- the present position is, just trying to draw this strand together, is that she is being housed by Social Services under their discretionary powers either under the Children Act or under the National Assistance Act. But the Social Services have not agreed to house her until the review decision is made.

MR JUSTICE FORBES: No.

MR BROATCH: So if your Lordship were minded to make any form of mandatory order, your order would thus be: (1) decision of 24 January quashed; (2) that the authority was in some way ordered not to discontinue the claimant's accommodation until either it makes a fresh 188(3) decision, or it makes the section 202 decision -- whichever is the earlier. Once the section 202 decision is made, it would not be necessary to make a further 188(3) decision.

MR JUSTICE FORBES: What are your instructions, Mr Berry?

MR BERRY: My Lord, that is as much as we could expect under the statutory framework, because clearly until the decision is made under section 202, as my learned friend points out, the matter goes off.

MR JUSTICE FORBES: Then it goes to the county court.

MR BERRY: Precisely, and once there is a section 188(3) decision, if it were to be adverse, we would of course have to look at the reasons given for that.

MR JUSTICE FORBES: If you are both of a mind as to how that should be dealt with, would it help if I just rise for a few moments while you work out a suitable term of order or are you without instructions?

MR BROATCH: I am without instructions, and I am not consenting to that. But if that order were made, in the light of your judgment, I would not be shell-shocked.

MR JUSTICE FORBES: I see. In that case, there is no point in me rising. Would you write out the form of order which reflects that, Mr Berry, and let Mr Broatch see it and then pass it up to me, and I will, of course, make it quite clear that Mr Broatch is not consenting to this, but does not raise any arguments of principle in opposition to it.

MR BROATCH: My Lord, it is not worth arguing about at the moment, because it will be for a relatively short period.

MR JUSTICE FORBES: And so far as costs are concerned?

MR BERRY: My Lord, we seek our costs, and also for detailed assessment for public funding purposes. We were successful in the judicial review. I have no other submissions to make on that point.

MR JUSTICE FORBES: Anything you want it say about that?

MR BROATCH: The second point part does not concern us. As to the first part -- I have nothing further to say. If your Lordship is going to apply the normal rule, then I would have very little to say.

MR JUSTICE FORBES: Is there anything else you want to say, Mr Broatch?

MR BROATCH: Yes, my Lord, I would ask your Lordship to give the authority permission to appeal.

MR JUSTICE FORBES: No, permission is refused. It seems to me that this is not likely to succeed and there are no other special circumstances relating to. Anything else? I will have to fill the form in when the associate gets back.

MR BROATCH: When your Lordship comes to consider giving your reasons for refusing permission to appeal, one facet of your Lordship's judgment which appeared to be of -- I accept that there is the mistake about the six months -- but one facet of your Lordship's judgment which appeared to be of great weight in how your Lordship found the decision to be Wednesbury unreasonable --

MR JUSTICE FORBES: Which is what?

MR BROATCH: Which was the birth of the child. Your Lordship did not address the question that you indicated that you were going to refrain from addressing, but that does raise a question of considerable importance which is not juridically explored at all as to what is the status in terms of habitual residence of a child born to a non-habitually resident mother, if that is what she is, and whether that child becomes habitually resident, or whether by virtue of the birth of the habitually resident child, the non-habitually mother crystallises --

MR JUSTICE FORBES: I thought I was very careful not to say anything about the actual status of the child, other than that the child is a British citizen, and the fact that his birth to a British citizen in the UK was, in my view, powerful evidence in the context of an intention to settle.

MR BROATCH: And in that context, your Lordship has attached no weight to any consideration that the child might not be habitually resident.

MR JUSTICE FORBES: It is not a case of attaching no weight to it; I have merely indicated that it is powerful evidence. Of course, the sort of matters you would want to raise, no doubt, if one got involved in the exercise, would have to be put into the balance. But the only point for this case is that the decision-maker simply did not even start to consider the matter. I do not want to revamp my judgment, but that is the point.

MR BROATCH: But the point I am making, with not disrespect or impertinence, if those matters are neither relevant or cogent, for legal reasons then it matters not that the decision-maker did not hold them in the balance, and therefore a point of law as to the consequence of that birth, both on the status of the child and on the status of the mother if she had remained, contrary to your Lordship's prima facie view -- non-habitually resident -- are matters of considerable legal importance which are unexplored juridically, ergo there is a matter of some public importance and interest which certainly might apply to authorities.

MR JUSTICE FORBES: Certainly my intention and my view of it is that I am not taking the matter any further than I indicated in the course of submissions. I did indicate that I was not proposing to get involved in an analysis as to precisely what the status of the child was.

MR BROATCH: My Lord, that I accept. But the point I am making, albeit obviously badly, is that by reaching the conclusion that that birth is of itself a matter of considerable weight which the decision-maker ought to hold in the balance, your Lordship is saying that, as a matter of law, it may change the status of the mother and that the --

MR JUSTICE FORBES: I certainly did not think anything I said was to that effect.

MR BROATCH: My Lord, I have made my point.

MR JUSTICE FORBES: I understand.

MR BROATCH: If your Lordship is unimpressed with the point, so be it. But, my Lord, it does seem to me to be of some considerable importance because the authorities are sometimes -- this was not the situation of someone flying in and almost immediately giving birth -- but she was pregnant when she arrived.

MR JUSTICE FORBES: I understand, Mr Broatch, but I thought I had -- it is my view that I have left the matter on the basis that I indicated I was going to in the course of submissions, namely that I regarded the birth of the child as being of significant evidential value on the question of intention to settle, but that I was not going to get involved in what the child's status was or what effect it might have on the status of the mother.

MR BROATCH: My Lord, that is of itself, with respect to your Lordship, a difficult factor to be determinative in the way that your Lordship has indicated, because that there was going to be a birth was an inevitable consequence of her arriving in this country pregnant.

MR JUSTICE FORBES: All of this is in support of a further submission by you that there is something here which I should consider granting leave to appeal.

MR BROATCH: Yes, whether the authority takes up that grant of permission would be up to them.

MR JUSTICE FORBES: I think that is how it is going to be left. I propose to say, so you know what I said, that I shall keep my reasons fairly anodyne, that is to say I do not consider that there is any reasonable prospect of success, and secondly there are no other exceptional reasons for granting permission to appeal. That is what I will put on the form. Have you got your --

MR BERRY: My Lord, if I could just show it to Mr Broatch.

MR JUSTICE FORBES: Thank you.

MR BROATCH: My Lord, I have slightly altered my friend's draft for reasons which may be self-evident. The position is she will have to be moved because she is in Social Services accommodation. She will now be moved to Housing Department accommodation.

MR JUSTICE FORBES: Is there any objection to the form of this order?

MR BROATCH: If your Lordship is against me on making any form of mandatory order, then that --

MR JUSTICE FORBES: I would like to make some form of mandatory order that does not usurp the local authority's duties.

MR BROATCH: Your Lordship is saying that we are to house her until either the fresh decision or the 202 decision, and if the 202 decision comes, then these proceedings -- this all becomes otiose.

MR JUSTICE FORBES: Very well. In that case that seems to me to be a satisfactory form of order and I make the order in those terms. Mr Berry, will you take appropriate steps to draw it up and lodge it with the court, because I have not got an associate. I will initial this order.

MR BROATCH: The order should also say: defendant's application for permission to appeal refused, at some stage.

MR JUSTICE FORBES: Quite right. It simply says: defendant's application for permission to appeal is refused. Thank you both very much.