M, R (on the application of) v London Borough of Barnet

HIS HONOUR JUDGE MICHAEL KAY QC: This is a renewed application for permission to apply for judicial review. It relates to the situation of a child who is known by the letter M in this case. The challenge is essentially to the alleged ongoing refusal by the defendant to acknowledge its obligations to her under section 20 of the Children Act 1989 and therefore its alleged ongoing failure to comply with its obligations to her as a looked after, and therefore an eligible, child for the purposes of the leaving care provisions. This is, I do not shrink from it, a difficult and anxious case for a judge to have to decide. M is due to turn 18 very shortly and the decision in this case will therefore have significant effects upon her future care by the local authority, if any.

The background can be stated, I think, somewhat shortly. M arrived in the UK with her family from Spain in 2002. She clearly has had difficulties in her relationship with her family, particularly with her father, since 2002 and at times has fled the family home and gone to live with other members of her family. In 2006, M's parents moved into the area covered by the local authority of Barnet and, in July 2006, M returned to live with her parents. Troubles continued and it was in November 2006 that she presented herself to the London Refuge, where she was accommodated. November 2006 was clearly the beginning of a crisis in M's life, if I can put it in that way, and there were assessments immediately undertaken by the London Borough of Barnet as to her position. There are documents in front of me which were compiled in that period in time. One of the matters that M complained of was that she had been assaulted or abused by her father. I stress that I am not in a position to assess whether these allegations are true or not and I am certainly not in a better position than the London Borough of Barnet to assess their truth. They were allegations made by M who has clearly and sadly had a troubled period during her teenage years. In relation to the allegations of abuse, it is correct to say that ultimately they were not proceeded with; they were denied by M's father and, although they were investigated by the relevant police investigation unit, they were found to be unsubstantiated.

So the background, as I say which I am not in a position to judge, was that there was unhappiness, if I can put it in a neutral way, as between M and her parents and in particular her father. All of that was considered and assessed by the London Borough of Barnet beginning in November 2006. M has been accommodated since November 2006 with the assistance of the London Borough of Barnet but they maintain that they have done so in accordance with section 17 of the Children Act 1989. It is the claimant's case that either they were or should have been acting under section 20 of that act; if they were or should have been doing so, then M would have been a looked after child within the legislation and further, an eligible person within the legislation. Certain consequences, which I need not go into in detail, would have ensued. In essence, they would have involved further levels of interaction with M and further levels of care for her.

The points that are taken on the claimant's behalf are, as I understand it, twofold (and I am not quite sure this is the order in which Mr Wise advanced them: firstly that there was a policy, adopted by the London Borough of Barnet, which in essence sidestepped the duties of local authorities under section 20. Section 17 involves on the part of the local authority a lower level of interaction and therefore a lower level of time and cost as compared to its duties under section 20. The allegation is that a wrong policy was adopted. It is said that obviously it is an attractive course for a local authority to sidestep its obligations under section 20 of the Children Act 1989 and that that is an approach that was taken by the London Borough of Barnet.

I was taken to the Local Authority's letter of 17th August 2007, which states that M has been provided with accommodation as a child in need under section 17. It is said that that accommodation has been provided pursuant to the local authority's internal protocol and procedures for providing accommodation for children who do not meet the threshold for being accommodated under section 20 but require assistance under section 17. I was taken to the local authority's circular guidance on a local authority's duties under section 17 and section 20 and to case law which has indicated that there should be a joined-up policy in relation to a local authority's duties under section 17 and section 20 of the Children Act and under the Housing Act. I should say in passing that M does not qualify for housing assistance under the Housing Act because of her status in the UK.

I was taken then to the protocol and procedures referred to in the letter of 17th August 2007. They are headed Barnet Home Seekers: Childrens Panel, Protocol and Procedures. Mr Wise for the claimant relied substantially on that document as being the wrong policy to adopt and one that sidestepped a council's duties under section 20 of the Children Act. It is correct, as he says, that the document does not refer to section 20; it instead refers to section 17. The explanation that has been given to me on behalf of the local authority for this omission is an entirely persuasive one. The document appears to be, and is, I am told, the Local Authority's procedure once the decision has been made as to whether a duty arises under section 17 or section 20 and therefore it is unsurprising that it does not refer to section 20.

There is another policy document which has been shown to me. It is described as a route map for looked after children, which sets out the steps to be taken by this local authority when it is considering whether a child is to be considered a looked after child. That document must contemplate action under section 20 because its very basis is that it is considering the position of a looked after child.

Mr Wise has further referred me to the assessment document of 3rd November 2006, which, as I have said, is the time when matters became acute for M. He points out that the note in it says that M would not be accommodated at age 16, she is entitled to go Barnet Home Seekers and she was advised to go to Barnet Home Seekers next week. Mr Wise says that that suggests that this local authority has a policy of not housing children under section 20 of the Children Act and of sidestepping its duties. It seems to me that that is not a basis on which his argument could possibly run. It is simply evidence of a decision in this particular case and does not show that any wrong policy has been adopted. Therefore I reject the application on Mr Wise's first ground.

Secondly, Mr Wise went on to argue that in this case the local authority has acted unlawfully and I was taken to various decisions, in particular the decision of Stanley Burnton J in the case of R (S) v London Borough of Sutton [2007] EWHC 1196 (Admin) and to the case of R (M) v Hammersmith and Fulham [2008] 1 WLR at page 535. The relevant paragraph in Stanley Burnton J's decision is paragraph 40. He is considering section 20 of the Children Act 1989. The relevant part of that section is as follows:

I was at first puzzled by the approach of Stanley Burnton J in the Sutton case as to quite what test he was applying by way of a judicial review of the local authority's decision. However, there is no dispute between counsel that the test he must have been applying was not one where he substituted his own view as to what the right decision should be under that section of the Act as opposed to the view that the local authority reached.

Ms Clement took me to the case of G v Southwark [2008] EWCA Civ 877, where, at paragraph 28, Longmore LJ stated in relation to a case involving section 20 considerations:

The test, therefore, for me to apply is whether there is anything irrational or perverse in the view that the Local Authority here arrived at as to whether their duty under section 20 was engaged. I will have to consider the approach they took, what matters they took into consideration and perhaps anything that they did not take into consideration. Mr Wise has sought to suggest, from certain evidence that was available as to the mental health of M's father and the history of their relationship, that nothing could indicate that the parents could provide suitable accommodation within section 20(1)(c). I have been shown, on the other hand, by Ms Clement a number of comments in the various documentation and assessments that have taken place over the years. They are set out in her skeleton argument and they indicate that M's parents have consistently stated that they are ready, willing and able to care for her and want her to return home, though that was from November 2006 through to March 2007. It does not seem to me to be irrational or perverse on the part of the local authority here to take the view that that was the position and that the reason why M would not go home was that she did not want to live with her parents, who were in fact willing to provide suitable accommodation and care and could do so, perhaps given some assistance.

A very late statement was served, I think yesterday, by M indicating that her parents no longer wished to have her home and there is a manuscript letter, purportedly signed by M's mother, suggesting that they did not wish her to return. There is some doubt cast upon that sudden and very late change of attitude by M's parents and some doubt cast on it by the local authority. It is not for me to say at this stage whether that is the accurate position, as it purports to be or whether it is not, but it seems to me, since we are really considering what has happened over the past two years, that it has no real effect on the decision I have to reach on this application. It cannot, as has been argued, affect the rationality of the local authority's decision that has been taken so far.

Looking at everything as I have done, I cannot see any arguable case that the local authority made an error of law, took into account something it should not have taken into account or reached a perverse or irrational conclusion on the evidence that was available to it in reaching its conclusion as to whether a duty under section 20 was engaged and therefore I dismiss this application.

MR WISE: Would you just bear with me one moment, my Lord? (pause) My Lord, may I -- it is always a difficult application to make, but may I seek permission to appeal your Lordship's decision. Plainly your Lordship has come to a particular view and is unlikely to think that it is arguable that your Lordship got it wrong, but nevertheless I am in the invidious situation of having to --

HIS HONOUR JUDGE MICHAEL KAY QC: I know -- it is right you have to ask, is it? You can, I think, go to the Court of Appeal without asking me, can you not?

MR WISE: Well, no, you have to ask the judge below first. So I am in that invidious position. I do not need to rehearse the arguments. You have heard them all morning.

HIS HONOUR JUDGE MICHAEL KAY QC: I accept you have to ask me. The result is that I have taken the view that this is unarguable and therefore I refuse leave to appeal.

MR WISE: Very well. May I then ask your Lordship to make an interim order, pending the matter being determined by the Court of Appeal, pending the application to the Court of Appeal being determined, an interim order requiring the defendant to continue to provide accommodation and support for the claimant pending the determination of the application to appeal. Your Lordship has heard that my client is potentially in a very dire situation as of Friday, when support will be withdrawn. If we are ultimately found to be correct in this application by the Court of Appeal, it would be unconscionable for my client to be put on the streets in the meantime pending the final resolution of this matter and in those circumstances we would say the just and proper approach of the court would be to make an interim order in the terms you have just outlined.

HIS HONOUR JUDGE MICHAEL KAY QC: Ms Clement?

MS CLEMENT: My Lord, two points in respect of that. The first point is that it is not the case that M will be on the streets on Friday. The landlord would have to go through the normal process to obtain a possession order to evict her, so, while the local authority may terminate the placement, it will take some time before the claimant is actually evicted or removed from the premises, pursuant to a possession order obtained from the court. The second point is that my clients would not resist continuing the placement on a short term basis. However, I am conscious that this is, of course, a vacation, so I am not sure what the time limits would be or how quickly the Court of Appeal could look at an urgent application such as this. I do not know if Mr Wise could undertake to make the application within a certain number of days, 7 or 14 days, but of course my concern is how long would it then be before the Court of Appeal were to consider the application for permission. So I think my clients are anxious not to give an open ended commitment, particularly in circumstances where the claimant will not be on the streets on Friday or next week or indeed anything like that.

MR WISE: A couple of points --

HIS HONOUR JUDGE MICHAEL KAY QC: Well, it sounds like there is no resistance to some form of order. The question is how long.

MR WISE: My learned friend has made it clear that the local authority intend to terminate the placement. How long possession proceedings then take to come to fruition is unknown and what we seek in this application is to prevent the local authority from terminating the application so other matters are not precipitated. With regards to expedition, I cannot, I am afraid, undertake to do anything in the next 14 days, I go away next week and --

HIS HONOUR JUDGE MICHAEL KAY QC: I thought you might say that.

MR WISE: Unfortunately I am not in a position -- ordinarily, of course, I would but I am simply not in a position and, in any event, as my learned friend has correctly alluded to, the chances of the Court of Appeal looking at it in August are probably fairly slim.

HIS HONOUR JUDGE MICHAEL KAY QC: Well, I am minded to say, given this is an anxious matter, that this should last for, in the initial stages, two months.

MR WISE: Well, my Lord, I am grateful for that indication, and of course we will expedite any appeal and make all the appropriate and necessary steps. It is in my client's interests to do so, of course, that goes without saying. But we are, at least to some extent, hamstrung by the Court of Appeal itself and have no control over how long it may take for the Court of Appeal (a) to determine whether permission be granted on the papers or (b) to determine any --

HIS HONOUR JUDGE MICHAEL KAY QC: You might have to renew the application.

MR WISE: Absolutely, or of course they might grant permission on the papers and it goes to a substantive hearing. In those circumstances, if your Lordship has granted an interim order -- we will perhaps come to the terms of that in a moment -- for two months, one can envisage circumstances where that two months lapses before we get into the Court of Appeal. It may not, of course, but if one considers it is early August now -- August, September, just into October would be the beginning of the new legal year -- any appeal is unlikely to take place before the end of October, one would have thought, and then one, of course, is in limbo and one would have to come back to this court and all of the unnecessary inconvenience and expense that that would entail.

HIS HONOUR JUDGE MICHAEL KAY QC: Well, I am just trying to find a formula which --

MR WISE: We will undertake to prosecute any appeal as expeditiously as possible --

HIS HONOUR JUDGE MICHAEL KAY QC: Well, you are, as you rightly say, in the hands of the Court of Appeal as to whether they regard it --

MR WISE: Absolutely. There is very little more we can undertake to your Lordship. But I do not know if my learned friend --

MS CLEMENT: My Lord, I suspect the Court of Appeal will deal with this as a matter of all expedition, but obviously that is not something that Mr Wise has any control over, but perhaps -- and again this is something the local authority would not oppose -- that there would be an undertaking rather than an order that the local authority would not terminate the placement, pending the Court of Appeal's consideration of Mr Wise's application for permission to appeal, and then it would be a matter for the Court of Appeal to decide whether to either order any -- well, it would be a matter for my client to consider whether to continue with that undertaking in light of the Court of Appeal --

HIS HONOUR JUDGE MICHAEL KAY QC: So you would give an undertaking to this court not to terminate the placement until the application for permission to appeal has been resolved. Is that what you are saying?

MS CLEMENT: Has been put before the Court of Appeal and then it would be a matter for the Court of Appeal -- either for my clients to consider at that stage or for the Court of Appeal to order interim relief if it considers it appropriate. I am anxious not to have an open ended commitment for an extended period of time.

HIS HONOUR JUDGE MICHAEL KAY QC: So your application to the Court of Appeal would have to be for permission to appeal and for an order -- you would have to be applying for an order at that stage, it seems to me.

MR WISE: The much neater way, my Lord, with respect, we would suggest was merely that -- whether it be done by undertaking or order is frankly neither here nor there, because an undertaking to the court has the same effect, of course -- but merely that there be no termination of the placement pending the determination by the Court of Appeal, because of course if the Court of Appeal refuse permission then that is the end of the matter and --

HIS HONOUR JUDGE MICHAEL KAY QC: Well, that is the open ended nature of that --

MR WISE: Well, it is not open ended, because the determination would determine the interim position as well.

MS CLEMENT: My Lord, I --

HIS HONOUR JUDGE MICHAEL KAY QC: No, because we do not know when the Court of Appeal is going to resolve --

MS CLEMENT: My Lord, I have just been reminded by those behind me that, of course, the local authority's long term aim, and what they consider to be in the best interests of the claimant, is that she does co-operate with the authority in attempts to locate private sector accommodation for her that is paid for by housing benefit. That has been the local authority's position for the last six months --

HIS HONOUR JUDGE MICHAEL KAY QC: She will get housing benefit, will she?

MS CLEMENT: She does currently get housing benefit, my Lord, yes, and has been intermittently over the last -- since she has been in independent living, and that would be the case regardless of whether she is, in fact, found to be a former relevant child and so entitled to the leaving care provisions, because the obligation is not to provide accommodation, it is to -- I cannot quite now remember the precise wording, but that accommodation under the leaving care provisions can, and often is, provided through private sector accommodation that the local authority has helped the claimant to find and is then funded through housing benefit. So what the authority does not want to happen is a commitment that they will keep the claimant in this particular accommodation, when in the normal course of events they would be seeking to assist her in finding private sector accommodation paid for by housing benefit. So they do not want anything to --

HIS HONOUR JUDGE MICHAEL KAY QC: I think I have to make the decision now. I think what I am going to say is that, upon the local authority undertaking not to terminate M's placement until an application is made -- sorry, an application for an order to that effect is made to and resolved by the Court of Appeal or until -- I am trying to work out the possibilities, because one is not made -- I give 28 days from today, until 28 days have elapsed without such application having been made. Sorry, I am not thinking clearly at this stage of the morning, but what I want to have is a position where you are giving an undertaking. Essentially, you will not terminate the placement within 28 days and if, within those 28 days, an application is made for an order that the placement is not terminated, until that application is resolved.

MS CLEMENT: My Lord, yes. Could we add the additional caveat "or unless suitable alternative accommodation is identified in the private sector for the claimant".

HIS HONOUR JUDGE MICHAEL KAY QC: Of course, yes. Could I ask you to go and draft out what I intend to do? You see what I am saying, that you have basically 28 days to make your application, when ordered not to terminate the placement.

MR WISE: 28 days to be able to make an application, until not to terminate.

HIS HONOUR JUDGE MICHAEL KAY QC: Yes, and that either you make an application at that time or you do not. If you do not, then that undertaking lapses. If you do, then the undertaking continues until that application is considered and resolved by the Court of Appeal. In other words, I am putting the onus on the Court of Appeal to decide whether you should have such an order.

MS CLEMENT: And, my Lord, with the caveat --

HIS HONOUR JUDGE MICHAEL KAY QC: And the caveat that the undertaking will lapse if suitable accommodation in the private sector is located. Could you try in the course of today to put that in a form of wording and you can send it in and I will sign it.

MS CLEMENT: My Lord, we will try and draft something between ourselves. Is it possible to email the document to your clerk?

HIS HONOUR JUDGE MICHAEL KAY QC: I do not get a clerk.

MR WISE: I wonder if your Lordship could give us your personal email address, that might be appropriate.

HIS HONOUR JUDGE MICHAEL KAY QC: You could get me through the Government website --

MR WISE: Rather than give it out in open court, your Lordship might want to give it to one or other of us and we will sort that out, or we will do that this afternoon, my Lord.

HIS HONOUR JUDGE MICHAEL KAY QC: Shall I just write it down. I had better go and check it. I think it is this.

MR WISE: The other alternative would be for us to email the associate.

HIS HONOUR JUDGE MICHAEL KAY QC: That is better.

MR WISE: And then the associate can liaise with your Lordship.

HIS HONOUR JUDGE MICHAEL KAY QC: That is much, much better.