F v London Borough of Barking and Dagenham

This is a claim for judicial review. An order for a reporting restriction pursuant to s.39 Children and Young Person’s Act 1933 and an anonymity order by application of the Civil Procedure Rules 39.2 were made by Mr Justice Walker on 10^th May 2015. The Defendant does not object to the continuation of those orders and they act to preserve the anonymity of the Claimant F and her son J.

There is an unusual matrix of circumstances in this case. The Claimant is homeless, has no leave to remain in the United Kingdom, no recourse to public funds and at the time of the hearing did not even have an application for leave to remain pending at the Home Office. Due to her immigration status she is not entitled to any support under Part 7 of the Housing Act 1996. In 1988 when she was 14 years old she gave birth to a son, J. She met J’s father (D), while she lived in a hotel. He is 7 years her senior. A residence order was made in respect of J in favour of his father in 2011. There is no order for shared residence. There are ongoing proceedings in the Family Court to determine contact and the long term residence of J who is accepted to be a Child in Need for the purposes of the Children Act 1989. The Defendant local authority has conducted assessments of the parenting capacity of both F and J’s father. The latter is alleged to have been violent to F in the past but at present J lives with him under an interim supervision order. Being homeless F cannot offer to spend any time living with J to sustain periods of family life together as she has no accommodation.

The Claimant sought judicial review of the Defendant’s refusal to provide her with accommodation, interim relief and an order compelling the Defendant to carry out a Child in Need assessment of J. Permission and the application for interim relief, considered by way of expedition on the papers, were refused by Mr Justice Cranston on 22^nd July 2015. The Claimant renewed her applications and on 11^th August 2015 Mrs Justice Nicola Davies granted permission for judicial review limited to

Having amended her Statement of Facts and Ground following the grant of permission F now seeks a mandatory order that the Defendant provide accommodation for her and J, if and to the extent necessary, to bring into practical effect any Order of the Family Court as to with whom J is to reside. She also seeks a declaration that the Defendant has acted unlawfully in failing to conduct an assessment of J’s needs for the purposes of s.17 Children Act 1989 and a mandatory order requiring such an assessment.

The Defendant’s position is that it has no power to offer F accommodation and although it may be permitted to do so if accommodation were necessary to prevent interference with J’s right to family life under Article 8, the exercise of any such power could not be contemplated while F does not have the benefit of an order from the Family Court granting her at least shared residence. The Claimant’s case is that without accommodation the Family Court will not grant her shared (at least) residence of J. This is the circular conundrum that the Court is faced with. It was this factor that led Mr Justice Cranston to refuse permission for judicial review and interim relief in respect of accommodation.

As to the Child in Need Assessment, the Defendant relies on the extensive parenting capacity assessment and its application for a supervision order in respect of J, which makes a stand alone Child in Need Assessment redundant and academic. The Claimant’s case is that such an Assessment is mandatory for a Child in Need and the various reports and assessments prepared during the Family Court proceedings are simply inadequate as a replacement for the Child in Need assessment regime.

The Claimant travelled to the United Kingdom from Trinidad when she was 9 years old. She has no right to remain although she is now 22 years old. When she was 14 she met D with whom she has a child J. There is a history of social services involvement with J and his parents due to the age of his mother at the time of his birth. The parents and child lived together periodically but there is alleged to have been domestic abuse in the relationship which has now broken down. D applied for a Residence Order for J in 2011 which was not opposed by the Claimant and D was granted the order although until 2013 the parents and their child continued to live together intermittently as before. On 10^th March 2013 D reported the child and his mother missing, he having returned from four months abroad. An application was made by D in the High Court for his son’s return and the Claimant returned J to D.

The Defendant Local Authority received a CAFCASS referral as a result of these events and in March 2013 the Claimant issued an application for contact with her son. As part of the ongoing Family Court proceedings to resolve this, assessments of J and his parents undertaken by the Defendant indicate that J is currently suffering or likely to suffer significant emotional harm without intervention. It is also indicated that both his parents could look after him but with assistance from the Local Authority. However a recent Child Guardian’s report which took into account D’s history of criminality expressed doubt about J’s safety if he were to remain living with his father in the long term. An interim supervision order is in place and the Claimant has been allowed contact visits with J twice a week at a contact centre as well as limited telephone contact. The final hearing to decide residence for J in the long term and contact with his mother is presently fixed at East London Family Court on 9^th November 2015 with a time estimate of 5 days. By the order of the Family Court at a Case Management Hearing on 14^th August 2014, by 25^th September 2015 the Defendant was to serve an addendum report in those proceedings part of which was to deal with this question

‘If the mother is able to secure accommodation and/or regularise her immigration status would that in any way alter your recommendation?’

The Claimant’s immigration position is at the heart of this claim. It is her lack of any form of leave to remain in this country that excludes her from recourse to public funds and makes her vulnerable to removal (subject to the Family Court proceedings which are extant). She is ineligible for housing allocation or assistance under the Housing Act 1996 and all other rules and guidance. Her most recent application for leave to remain based on her family life with J has been refused, a decision letter dated 9^th September 2015 received by the F’s immigration solicitor on 14^th September indicates that the refusal is not a substantive refusal. F failed to pay the fee of £600 and asked for the fee to be waived. She has been determined as not qualifying for a fee waiver. In order to make a fresh application she must pay the correct fee. It follows that she has no outstanding application at the present time.

If the Family Court were to order that J reside only with the Claimant she would seek to bring herself under the principle in Zambrano v Office Nationale de L’emploi [2012] QB 265. Although such an order has not yet been made it is not entirely inconceivable because there are clear concerns about the care that J’s father can provide although in his absence it is not appropriate to set them out in detail here. F’s own parenting capacity has been very positively assessed. The third option is for J to be taken into care. The Guardian’s position statement (at page 56 paragraph 3 of her report) is that she cannot support foster care when the child had a mother willing to have him and who is able to meet his needs.

As will become clear presently I am not able to determine the final merits of this claim and so the arguments presented are set out only in general terms.

The Children Act 1989 makes it the unqualified requirement of any court determining a question as to a child arrangement order to have the child’s welfare as its paramount consideration. The Claimant submits that a similar approach should apply in this case which is concerned with ensuring that the Defendant, a public authority, does not interfere with J exercising his right to have and enjoy a family life with his mother.

Because she is ineligible for support by virtue of the Nationality, Immigration and Asylum Act 2002 Schedule 3 Paragraph 1, F cannot seek to invoke Section 17 Children Act 1989 which places a duty upon the Defendant to promote the upbringing of children by their families by providing a range and level of services appropriate to those children’s needs, including by providing services to the family rather than only to the child (by subsection (3)). However there is route by which the Claimant argues s.17 Children Act 1989 is available to her by virtue of paragraph 3 Nationality, Immigration and Asylum Act 2002 Schedule 3,

“Paragraph 1 does not prevent the exercise of a power of the performance of duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—

(a)

a person’s convention rights, or

(b)

A person’s right under the [EU] Treaties.”

The Claimant argues that reading paragraph 3 together with s.17 Children Act accommodation can be provided by the Defendant for F if it is provided with a view to safeguarding or promoting J’s welfare. Furthermore she argues that it is relevant that Paragraph 3 refers to a person’s Convention rights rather than only the ineligible person so it could be interpreted as the exercise of the s.17 power to avoid breach of either J or the Claimant’s Convention rights. She goes further in reliance on Anufrijeva and Another v Southwark LBC [2003] EWCA Civ 1406and urges the Court to find a duty on the Defendant to take positive action under Article 8 ECHR. She points out that the Court of Appeal concluded that (paragraph 43),

“Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue.”

The Defendant argues that this route to redress is an unwarranted expansion of the Defendant’s positive duty, to require it to house those who are not entitled to assistance under a clear and comprehensive statutory scheme and who remain in the jurisdiction in breach of Immigration law. The Defendant’s position is set out in the statement of Samuel Quartey dated 10^th September 2015.

From nowhere in the Court of Appeal’s judgment in Anufrijeva v Southwark LBC (supra.) do specific criteria for the imposition of a positive duty spring. Indeed although preventing a member of a family sharing family life together is likely to infringe Article 8(1) (paragraph 12), the Court observed at paragraph 19,

“ …the Court of Human Rights has always drawn back from imposing on states the obligation to provide a home, or indeed any other form of financial support.’

Furthermore the Defendant urges the court not to be drawn into what amounts to an adjudication on the Family Law proceedings in breach of jurisdiction, this is not a case in which the Claimant wishes to continue her family life with J, she needs housing to commence family life with J at a time when the Family Court has not granted her that privilege.

The Claimant has previously made an application for leave to remain under the Zambrano principle but that application was refused in 2012 because she was not the sole or primary carer of J. That remains the position and will not change unless the Family Court makes an order in her favour. If that were to occur then there is no reason prima facie why she would not then acquire the derivative rights of a Zambrano carer.

The Defendant points to the unusual form of mandatory order sought and argues that it is not just unprecedented as a forward looking form of relief, it is also far too speculative because the test is whether the exercise of statutory duty under the Children Act is necessary for the purpose of avoiding a breach of human rights and that necessary implies a high degree of probability, certainty even, that there will be a breach if the action is not taken. The Defendant urges that this Court is not in a position to say that housing is the pivotal issue in this case in respect of preventing a breach of J’s human rights. The family proceedings picture is simply far more complicated than that.

The Defendant also argues that if the Family Court were to make an order giving care of the child to the Claimant the Local Authority would then look again at the circumstances and its own power under s.17 Children Act 1989; the Defendant will not give any undertaking to react in any particular way if circumstances change but urges that this is an indication of the claim being premature.

In respect of the Child in Need assessment the Claimant submits that Schedule 2 of the Children Act 1989, paragraphs 1 & 3 have been construed with section 17 as imposing a duty on a Local Authority to assess anyone classified as a child in need. The Claimant submits that the statutory Guidance issued by the Secretary of State in respect of these provisions leaves no leeway for the Defendant who has acknowledged that J is a child in need but has not carried out a formal assessment of him and his needs outside the various reports prepared for the Family proceedings. The Claimant points out that those reports are aimed at different targets, eg assessing parental competency rather than providing a systematic assessment of the child’s needs and proposing a reviewable programme to meet those needs. The interactions between the Defendant and the child in need should be informed by a systematic assessment, recording and gathering relevant information and which sets clear outcomes and is dynamic in that it is reviewed.

The Defendant deals with this also in the statement of Mr Quartey. In essence the departure from the Guidance is justified in the circumstances of active Family proceedings and in totality the work done with J and about him more than fulfils the requirements of the Guidance, in fact, if not in form.

In response to this the Claimant argues that unless a comprehensive assessment has been conducted there is no way of knowing what such an assessment might throw up and the court must not be lured into thinking the child’s needs are being noticed and met and the application for relief is academic. By way of example attention was drawn to a letter from a GP doctor dated in July 2015 that sets out a summary of concerns about J’s health and development which have not found their way into any of the various reports prepared for the Family proceedings. It is right to point out, of course, that the reason the claimant has that letter to rely on is because it is part of the papers for the Family proceedings, disclosed for this claim.

The Defendant submits that even if there has been a breach this is not a case for ordering relief, the mandatory assessment of J, but rather for inviting the Family court to order an assessment if there is a lacunae in the work already done. This, it is suggested will avoid duplication of effort and a waste of resources in a case which has a Local Authority already engaged with J to the extent that a Supervision Order is sought by the Authority.

There is a difficult but logically and legally arguable route by which the Claimant may be able to bring herself within the grace of the local authority by way of reliance on J’s Article 8 ECHR rights. However, the Claimant has failed to persuade me that it is right or possible for me to make an order against the Defendant in respect of Article 8 rights because the order sought would be both conditional and uncertain. The Defendant claims that as soon as any certainty arises the claim will either fall away or become academic. Plainly, the need here is for some certainty as to the Family court’s residence order in respect of J. On the material put before me it is entirely possible that the Family Court will decide that the best outcomes for J are likely to involve shared contact (at least) with his mother. This court cannot achieve that because the power to make such an order is, it is agreed, with the Family Court. Equally, it is the Family Court that is in the best position to determine whether a Child in Need assessment is required in J’s case and whether it would serve any real purpose given the interim Supervision Order which is already in place.

Having made these preliminary observations expressing doubt that a judge solely concerned with the public law elements of the Claimant and J’s position should make the final determinations and in order to achieve a just result and certainty I direct that this claim is transferred to a High Court Judge who is also nominated to sit in the Family Division so that a Case Management Hearing can take place as soon as possible, and certainly well before the November 2015 date presently fixed for the five day hearing in the Family court. The High Court Judge will be in the best position to look at the interests of J in the round and make the appropriate order in this claim and the family proceedings. Joinder of the two sets of proceedings will also overcome a specific difficulty identified by the Defendant, namely the absence of J’s father from this case.