A v London Borough of Enfield

The Claimant (C) is a British teenage girl who was born and grew up in the London Borough of Enfield. She is now aged 18 years. On 29^th July 2014 C first came to the attention of the Defendant when her sister telephoned the Childrens Services Department to communicate her anxiety that C was planning to leave the country. The information recorded at that time noted that C had left her family home in February 2014 without the consent of her family and travelled through Turkey to the Syrian border.

C contacted her father from Turkey to come and collect her, apparently having had a change of heart about her plans. It is clear that C travelled to Turkey alone. Prior to her flight she is reported to have been following a number of local Muslim girls on the internet. She met an adult man, online, called Umar who lived in Turkey and he had encouraged her to runaway from home. C’s father responded to his daughter’s call and she was taken by her parents to stay with extended family in Pakistan.

C was detained on her return to Heathrow by Counter-Terrorism Police and questioned by the UKBA. Though both her parents were at the airport she refused to return home with them and stayed initially at a hotel in Newham. C’s sister told the police that C wanted to leave the country again explaining that she had somehow applied for and obtained a replacement passport, her original passport having been removed from her.

When the police spoke to C she reported being unhappy at her family home explaining that she disliked her family and had done so ‘for a long time’. She professed to want to live somewhere where she felt more ‘accepted’. By this, it is clear from the documentation in the case, she meant that she wanted to live in an environment that was observant to stricter Islamic codes of behaviour. She said that she had applied for another passport because her family had taken hers from her. C said that she went to visit people in Turkey whom she had met on Twitter. She said she wanted to join their group, she felt happy there. The family told the police that they were afraid that C might try and leave again, possibly being influenced by the same people who they (the family) considered were involved ‘in what was happening in Syria at present’.

The police told the family that they could not force C to hand over the passport or ‘lock her up’ so that she could not leave the house. All appear to agree that the police said they could not take the passport. In fact, that is misconceived, though it matters not in this application.

C was described as ‘an A-star student’, but she was at this stage expressing no inclination to study at 6^th Form. At this period the police assessed C as suitable for the Channel Programme. This programme isan early intervention multi-agency process designed to safeguard vulnerable people from being drawn into violent extremist or terrorist behaviour. Channel works in a similar way to existing safeguarding partnerships aimed at protecting vulnerable people. It is designed to work with individuals of any age who are at risk of being exploited by extremist or terrorist ideologues. The process is intended to be structured around the individual circumstances of each person and aims to provide support for any form of radicalisation or personal vulnerabilities to extremist influence. Guidance on the objectives and scope of the Channel Programme is published by the Metropolitan Police Counter-Terrorism Unit and now widely available.

C initially engaged with the project but quickly drifted away. This appears to have been in the period between March and May 2014. I emphasise that none of this factual information is contentious between the parties.

I should also make clear that much of this information is derived from a Child and Family Assessment which was undertaken by the Defendant between the 29^th July 2014 and the 8^th August 2014. It seems fairly clear, indeed I do not think it is disputed, that C was kept under very close supervision by her parents and her freedom of movement very significantly curtailed.

C told the social workers that she would not place herself at risk again and had not appreciated on her previous trip to Turkey that her friends had planned to take her to the Syrian border. C asserted that she wanted to go to Egypt to study, she said that in Egypt there was ‘one of the best Islamic schools’ and that she would like to study there. She stated that her parents would resist this and so she hoped to marry a man who already studied and lived in Egypt.

C was, however, prepared to negotiate with her parents. She stated that if they had indicated that she could marry she would not runaway. The situation was obviously fraught and on the 29^th August 2014 C left the family home making allegations that her father had hit and pulled her in the course of an argument. On the 19^th September C travelled to Egypt alone. Upon leaving her parents’ home, C stayed with her maternal aunt RB in Enfield for a number of weeks. The maternal aunt plainly struggled to manage to care for C and eventually asked her to leave the property as she was ‘finding it difficult to manage the relationship’ between C and her parents. C then stayed with her maternal grandmother, who also lives in Enfield.

On 18^th September 2015, C’s mother notified the police that C was planning to leave the country. On 19^th September 2015, C left the country and travelled to Egypt alone. She stayed there for a week. C’s parents reported this to the police and she was contacted by the British Embassy in Egypt. C indicated to them that an adult friend had bought her the ticket to travel. Fearing that her family may try to follow her to Egypt, C left and travelled to Greece, alone, where she stayed for 9 days. C’s aunt and father flew to Greece, whereupon it appears to have been agreed by the father that C should travel to Bulgaria alone, where she stayed for a further 6 weeks.

C returned to Heathrow airport on 21st November 2014 where she was, on arrival, detained by Counter-Terrorism police and questioned by UKBA. Her parents were at the airport but C refused to return home with them.

The Defendant took the view, whilst C was abroad that ‘[C] is no longer in the country therefore there is no further role for Enfield Children Services at this stage unless there are [sic] other action from outcome of the strategy meeting’ this is again recorded in the Child and Family Assessment on the 8^th August 2014. The case note report shows that C’s father asked if the Children Services could provide his daughter with a flat of her own so that she could be kept safe. By this stage C, who had already spent the previous night with her father and the family, were told that a flat of her own was not something social care could provide. C told the social services that the difficulty with her parents was that ‘they were not strict enough Muslims’. In her Skeleton Argument Ms. Mellon on behalf of C characterises the Local Authority’s refusal in these terms:

“It does not appear that this assertion was based on any assessment of the Claimant’s needs but instead is based on the erroneous understanding which has characterised the Defendant’s decision-making in this case: that they do not have the power to accommodate 16 and 17 year old children. In any event, it is widely acknowledged that bed and breakfast accommodation is not suitable for 16 and 17 year olds even on an emergency accommodation basis.”

On 25^th November 2014, C presented as ‘homeless’ to Tower Hamlets Children’s Social Care. She indicated that her family lived in Enfield but she did not wish to return to them. She gave a generalised account of incidents of domestic violence and explained that she had been abroad for two months and had just returned to the UK.

Tower Hamlets completed a preliminary assessment entitled Framework for Understanding Families, dated 27^th November 2014, which outlined concerns about C’s father in these terms:

“He reported that A had been in Bulgaria for 4-5 weeks and that he had funded this holiday. When I explored with him about who was looking after A in Bulgaria, he advised that she was staying on her own and this raised concerns about why he would allow a 16 year old child to travel to a foreign country on her own, however advised she needed respite, hence this arrangement.”

The account given by C to social services is recorded thus:

“been running away from home due to what she reported as a volatile relationship with her parents. She reported that there had been incidents in the past where there had been physical abuse and on-going emotional abuse.”

The report also stated:

“information shared by A highlighted concerns around issues surrounding radicalisation even with the limited information we had and the fact that she has travelled to different countries on her own, managed to live in different hotels and claims that self-funding the trips.”

This assessment drew an important conclusion, upon which Ms. Mellon placed considerable emphasis:

“A is an Enfield child who is currently considered high risk due to issues pertaining to radicalisation; she has now returned to Enfield for on-going interventions and case will close.”

The ‘Child in Need Assessment’ further stated:

“We have limited information regarding this young person however she appears quite vulnerable.”

Tower Hamlets ‘accommodated’ C overnight pursuant to the provisions of s. 20 The Children Act 1989 on the 24^th November 2014.

On 25^th November 2014, C was placed with a single female carer in Forest Hill for one night. On 26^th November 2014, C was taken to Enfield the following morning to the Children’s Social Care Unit, to be assessed.

Social workers from Tower Hamlets accompanied C to Enfield Children Social Care Services to be assessed by them and closed the case within their own Borough. The Enfield records, at this point, reveal that the Claimant’s case is a “high profile” case, due to “concerns around radicalisation.”

In November 2014 Enfield Social Services Department concluded that C was not homeless as she was able to return to her parents. On my reading of the documents, though C’s parents have plainly struggled with their daughter, they have never refused to provide her with accommodation. Enfield appears to have taken a simplistic approach and concluded that as her parents were offering accommodation, ipso facto, she could not be homeless. They compounded this flawed reasoning by extrapolating that as C was not homeless she could not be ‘in need’ in the sense contemplated by s.17 Children Act 1989. That position is one they hold to in their defence to this application. Mr Paget, on behalf of Enfield, in his ‘Response to Grounds of Challenge’ document expressed the point in these terms:

“Ground 1: The Defendant has undertaken a lawful s.17 assessment;

The conclusions of the Defendant are not irrational or Wednesbury unreasonable. It considered the evidence and made an evaluative judgement that the Claimant’s family home was available to her and so she did not appear to require accommodation. That judgment is consistent with the Defendant’s understanding that the Claimant has been living at the family home on weekdays;

The Defendant did not conclude that the Claimant had been excluded from her family home and so the guidance from Baroness Hale about sofa-surfing being a child-in-need does not apply.

It is accepted that the Claimant is vulnerable to radicalisation and is being monitored by counter-terrorism police but that has no impact on the Defendant decision that the family home is available to her.”

Notwithstanding the direct referral from Tower Hamlets, Enfield did not undertake any kind of structured assessment until June 2015, and then only in response to pre-action protocol correspondence. It appears that Enfield Housing Team (F.A.S.T), referred C to a place which accommodates young people but she was not, for a variety of reasons, considered to be suitable. Thereafter it appears to be common ground that Enfield took no further action and provided no further services or support. Where C was in fact living in this period has been much debated. The preponderant evidence is that she stayed with a variety of friends, relatives and most probably from time to time with her parents. Ms Mellon has characterised this period as one in which C became ‘increasingly unsafe’. It is perhaps important to emphasise that the nature of the risk to C from this chaotic lifestyle was of a different complexion to the risk of radicalisation. In this context, the risk was more generally to her physical, emotional and sexual security.

It is important to record that at some point in 2014 C (still aged 16 years) underwent a Nikah, a preliminary ceremony to a Muslim marriage, with a man in his early thirties. The best evidence available is that this introduction was arranged with the contrivance of an uncle, though it appears to be against the expressed wishes of the parents. In her own statement, filed in these proceedings C states that she stayed, at this time in the property of this man, in Bethnal Green. She claims that he now vacates the property when she stays over. Furthermore, it appears to be common ground that this individual is monitored by the police in the light of his radicalised beliefs.

C’s pre-action protocol letters are, as I have observed in the course of exchanges with counsel, a model of their kind. They identify specified complaints, they are presented in careful chronological order and they are set in the framework of the relevant legislation and case law. On the 28^th May 2015 the Defendant contacted C’s solicitors by letter stating:

“I have been tasked with a Children and Family Assessment for [A] and her siblings and would like to visit you at home to discuss further.

We are naturally concerned about [A’s] welfare and in line with the regulations under the Children’s Act 1989 we need to complete a Children and Family Assessment.

I would like to arrange a visit to see you within the next 48 hours and would be grateful if you could contact me on the above details to arrange this.”

Ms Mellon, identifies the following comments within the assessment that followed:

“13 May 2015- Claimant is living with her former partner in Bethnal Green ;”

22 May 2015- [Children’s Services to FAST Social Worker]” I can see you have been working hard to resolve her housing need”;

22 May 2015- Claimant seeks to stay in a Women’s Refuge but does not meet criteria: she is refused a number of FAST providers; she is staying at the home of her ex-fiancés;

1 June 2015- the FAST Social Worker comments that A “is still homeless and reliant on others”.

1 June 2015, the Defendant wrote to the Claimant’s parents stating that “Enfield Children Services are unable to provide any further assistance at this stage…I hope that C is returned home safe and well.”

2 June 2015- file note from Children’s Services: “I can not see how Children’s Services would be able to offer any further assistance that the FAST team is not already doing. She is adamant she does not want to be placed in a foster care home and I advised her that this Department do not place children in independent accommodation, this would fall under the Southwark judgment which I understand it is what FAST do.”

In the concluding sections of the assessment, under the heading ‘Analysis and Professional Judgement’, are a number of what are, to my mind, significant observations. It is moot as to whether there is either ‘analysis’ or indeed judgement. Nonetheless, I identify the following:

Having concluded that ‘no further action was required’ the Defendant declined to become involved in C’s case. On the 8^th November C was again detained by police at Heathrow seeking to travel to Bulgaria with a significant sum of money. On the 16^th November, having by this time also dropped out of her A-levels, C enrolled at the Institute of Rawda, Manor Park to undertake a Diploma in Islamic Studies.

On the 19^th November 2015 Mr Justice Walker ordered that pending determination of the application for permission to apply for Judicial Review or further order, the Defendant shall forthwith provide accommodation and support to C under s.20 of the Children Act 1989. Walker J observed ‘I make the order… because I consider that the material available to me suggests that the Claimant has an arguable claim for relief and that this order is necessary to protect the Claimant from the risk of harm pending a decision on whether the Claimant should have permission to seek that relief’.

Provision of accommodation for young people who may be homeless and /or require accommodation is regulated by part III of the Children Act 1983 Act and part VII of the Housing Act 1997. Section 17 (10) Children Act 1989 provides:

“(10)

For the purposes of this Part a child shall be taken to be in need if—

(a)

he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)

his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)

he is disabled,

and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

The duties that flow from the identification of a child as falling within the provisions of section 17 (10) are:

“17 Provision of services for children in need, their families and others.

(1)

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

(2)

For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.

(3)

Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.

(4)

The [appropriate national authority] may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there.

(4A)Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—

(a)ascertain the child’s wishes and feelings regarding the provision of those services; and

(b)

give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

It is argued that C was a child in need of accommodation and support, of the type that should be provided by section 20 of the Children Act 1989. It is convenient here to set out the key provisions of this section:

20 “Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(2)

…

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

(4)A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

(6)Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—

(a)ascertain the child’s wishes [F1and feelings] regarding the provision of accommodation; and

(b)give due consideration (having regard to his age and understanding) to such wishes [F1and feelings] of the child as they have been able to ascertain.”

It is also convenient here to set out the statutory guidance issued by the Department for Children Schools and Families (2010), Provision of Accommodation for 16 and 17 year old young people who may be homeless and or require accommodation:

“Approaches and referrals to children’s services.”

2.15

Where a 16 or 17 year old seeks help from local authority children’s services or is referred to children’s services by some other person or agency (including housing services) as appearing to be homeless or at risk of homelessness, or they are an 6

unaccompanied asylum seeker without a parent or guardian with responsibility for their care, then children’s services must assess whether the young person is a child in need, and determine whether any duty is owed under section 20 of the 1989 Act to provide the young person with accommodation.

2.16

Where a 16 or 17 year old seeks help or is referred, and it appears he or she has nowhere safe to stay that night, then children’s services must secure suitable emergency accommodation for them. This will mean that the young person will become looked after (under section 20 (1)) whilst their needs, including their need for continuing accommodation and support, are further assessed. Bed and breakfast accommodation is not considered suitable for 16 and 17 year olds even on an emergency accommodation basis. Where the young person is accommodated under section 20 they will not be eligible for welfare benefits, including housing benefit2 and children’s services will have a duty to maintain them (including meeting the cost of accommodation).”

Even the most cursory reading of the provisions of s17 make it plain that the concept of ‘need’ covers a wide spectrum of issues relating to the welfare of a child. In providing services for such children the statute imposes a duty both to promote and to safeguard the welfare of children. To this must be added the importance of ascertaining the ‘wishes and feelings’ of a child regarding the provision of ‘a range and level of services appropriate to the child needs’. Plainly, the older the child and the greater her understanding, the more weight must be given to ‘wishes and feelings’ (which are not synonymous) particularly, it seems to me, where the child is in fact requesting support. It is strikingly clear that the Defendants did not truly analyse C’s case at all within the framework of these provisions. Indeed it would seem to me that the risks arising to C by virtue of her views and belief structure and the concerns that she was within a spectrum of radicalisation, undoubtedly placed her securely within the contemplated reach of s.17. To this must also be added: preparation for a marriage to a much older man, which her parents were apparently unable to prevent; two occasions in which C had travelled extensively and alone in dangerous parts of the world; allegations by C of being locked in her home against her will for considerable periods of time; direct requests to the Local Authority from C’s parents that she be found somewhere ‘safe’ to live; very significant periods when C’s whereabouts were not known at all and allegations made by C to the effect that she had been subjected to disproportionate degrees of force from her father.

My view is reinforced by the guidance issued by Sir James Munby, President of the Family Division, on the 8^th October 2015: ‘Radicalisation cases in the Family Courts’. These cases are recognised as a new facet of safeguarding and child protection. Implicit within the guidance, which I do not propose to repeat here, is recognition of the profound seriousness of the contemplated harm. I find it hard to envisage any circumstances where issues of this kind arise that do not fall at very least within the ambit of s.17. Far more likely they will require a more serious level of intervention see: Re X (Children); Re Y (Children) [2015] EWHC 2265 (Fam); Re X (Children); Re Y (Children) (No 2) [2015] EWHC 2358 (Fam); The London Borough of Tower Hamlets v M and ors [2015] EWHC 869 (Fam).

It is paradigmatic that many children who are at risk or ‘in need’ live with parents or carers who themselves present the risk or, as here, are unable to protect from it. That such parents continue to offer a home to their children is often, again as here, understandable but frequently irrelevant. The Defendants have created a false logic: (i) the parents offer a home; (ii) the child is not homeless and therefore; (iii) the child is not ‘in need’ (per s.17). The flaw in this reasoning, which I am satisfied was the false equation constructed by the Defendants, is manifestly irrational.

The point was considered inRegina (G) v Southwark London Borough Council [2009] UKHL 26; [2009] 1 W.L.R. 1299, per Baroness Hale:

“Para 28…(5) Is that need the result of: …:(c) the person who has been caring for him being prevented from providing him with suitable accommodation or care? As Lord Hope pointed out in the Barnet case [2004] 2 AC 208, (c) has to be given a wide construction, if children are not to suffer for the shortcomings of their parents or carers.”

In R (ET) v Islington BC [2012] EWHC 3228 (Admin), Cranston J. considered that the intensity of review was heightened in the type of circumstances in focus here, at [26]:

“26 In my view, the intensity of Wednesbury review is also heightened under the Children Act 1989 in circumstances like the present, where the consequences of the council falling into error is the possible sexual abuse of children and young people. The profundity of the impact, to use that phrase, is equivalent, indeed potentially greater, than in community care cases such as R(KM) v Cambridgeshire County Council . In my view, a notion of heightened review does not undermine the Wednesbury test. The court is simply saying that the public authority must exercise its discretion with a due appreciation of its responsibilities. In effect, given the context, the public authority must tread more carefully than usual. Heightened review calibrates Wednesbury unreasonableness to the matter at issue.”

In Regina v. London Borough of Barnet (Respondents) ex parte G [2003] UKHL 57 Lord Nicholls analysed the scope of s.17 as apt to impose both a duty to assess the needs of the child as well as to provide a range and level of appropriate services tailored to those identified needs:

“ 32. I am fortified in my view that section 17 imposes a duty in respect of the individual child by noting the consequences of the alternative approach. On the local authorities' approach, since section 17(1) does not impose a duty in relation to an individual child, it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1). That cannot be right. That would go far to stultify the whole purpose of Part III of the Children Act 1989. The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need. Failure to carry out this duty may attract a mandatory order in an appropriate case, as occurred in R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235 (2001) 4 CCLR 295. Richards J ordered a local authority to carry out a full assessment of a child's needs in accordance with the guidance given by the Secretary of State in 'Framework for the Assessment of Children in Need and their Families' (March 2000).

33.

Where does such an assessment lead? According to the local authorities, nowhere as a matter of legal obligation, so far as an individual child is concerned beyond, presumably, an obligation on the part of the authority to consider the assessment and decide whether to exercise any of its statutory powers. That would be a surprisingly weak outcome. That would represent a lacuna in the law relating to children in need. I cannot think Parliament intended this should be so. I prefer a different approach. If section 17(1) is apt to impose a duty on a local authority to take reasonable steps to assess the needs of an individual child in need, it is equally apt to impose the duty mentioned above to provide a range and level of services 'appropriate' to those needs.”

In Regina (G) v Southwark London Borough Council (supra) Lord Neuberger analysed the inter-relationship between a Local Authority’s duties under the Housing Act 1996 and those which arise under s.20 of the Children Act 1989. It requires to be set out in full:

“36…However, I would like briefly to summarise my views on the interrelationship between the duty under Part VII of the Housing Act 1996 and the duty under section 20 of the Children Act 1989 in the case of children aged 16 or 17, who “require accommodation”.

37 The borough's argument, which was accepted by the majority of the Court of Appeal, is as follows. At the time G approached the borough's children's services authority, he was a child aged 16 or 17 who was “homeless”, “eligible for assistance”, and not “homeless intentionally”. Accordingly, he had priority need for housing under Part VII of the 1996 Act, as a result of the Homelessness (Priority Need for Accommodation) (England) Order 2002 . Consequently, as the local housing authority thereby had a duty to house him, the children's authority could perform its duty under section 20 of the 1989 Act by making arrangements with the housing authority to ensure that G was provided with housing.

38 Apart from being inconsistent with the thrust of the reasoning of this House in R (M) v Hammersmith and Fulham London Borough Council [2008] 1 WLR 535 , I consider that this argument is unsatisfactory, for two connected reasons. First, and most importantly, the 2002 Order expressly excludes from priority those children aged 16 or 17 to whom a children's authority owes a duty under section 20 of the 1989 Act. Secondly, the argument could not have been advanced before the 2002 Order came into force.

39 The fact that children to whom a children's authority owe a section 20 duty are excluded from the ambit of the 2002 Order seems to me to render the borough's argument circular. On the face of it, G “require[s] accommodation” and therefore must be “provide[d with] accommodation” by the children's authority under section 20 of the 1989 Act. In order to avoid that conclusion, the borough argues that G has a priority need claim *1313  on the housing authority under the 2002 Order. But the only basis on which G falls within the scope of the 2002 Order is if the children's authority has no duty under section 20 of the 1989 Act. So, the reasoning on which the borough relies to avoid the duty which is prima facie imposed by section 20 effectively involves asserting that there is no such duty.

40 Not only is this reasoning circular, but it appears to me to be inconsistent with the purpose of the 2002 Order in relation to children aged 16 and 17. Until the order came into force, a child aged 16 or 17 would not have been treated as being in priority need under Part VII of the 1996 Act unless he or she was “vulnerable as a result of … [some] other special reason”—see section 189(1)(c) . If a child of that age fell within section 20 of the 1989 Act, he or she would be provided with accommodation. However, if such a child did not fall within section 20 , no accommodation would be provided, unless he or she was found to be “vulnerable”—and even then there might have been an argument that being aged 16 or 17 was not a “special reason”. The purpose of the 2002 Order was, as I see it, to fill that lacuna, not to enable a children's authority to divert its duty under section 20 to the housing authority, thereby emasculating the assistance to be afforded to children of 16 or 17 who “require accommodation”.

Mr Paget sought to advance a version of the argument that Lord Neuberger so comprehensively rejected in the passages above, seeking to contend that because C was not a child in need she fell within the provision of the Housing Act rather than the Children Act. Of course, this is circular and given that I have already evaluated the Local Authority’s s.17 assessment as fundamentally flawed, is now otiose. Any reasonable decision maker looking at the broader spectrum of needs required by S. 17 could only have concluded both that she was a child ‘in need’ and that she required to be accommodated pursuant to S.20.

It may be helpful to emphasise that the purpose of the assessment should be to investigate the child’s needs across the spectrum, to identify what help and support the child and family require and the agencies at least best placed to offer that help. In R (J) v Caerphilly CBC [2005] 2 FLR 860 Munby J, as he then was, highlighted that a lawful assessment and care plan to assess the needs of a child ought to be a ‘detailed operational plan’. Munby J endorsed the principles set out by Richards J, as he then was, in R (AB and SB) v. Nottingham City Council (2001) 4 CCLR 295. These require restating (at para 20, 301 D-F):

“in relation to the child’s developmental needs and the other domains of the assessment framework, with objectives and plan of action, person or agency responsible, date by which objectives is to be achieved, and outcome. It serves to highlight the detail required for a core assessment, the process of carrying out such an assessment (including the involvement of parents or carers, children and other relevant family members), and the fact that in completing the record, it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help.”

Although the Framework Guidance is not designed to be followed in a prescriptive manner, Richards J held (at 41 at 306G-I) that:

“… There should be a systematic assessment of needs which takes into account the three domains (child’s developmental needs, parenting capacity, family and environmental factors) and involves collaboration between all relevant agencies so as to achieve a full understanding of the child in his or her family and community context. It is important, moreover, to be clear about the three-stage process: identification of needs, production of a care plan, and provision of the identified services. It seems to me that where an authority follows a path that does not involve the preparation of a core assessment as such, it must nevertheless adopt a similarly systematic approach with a view to achievement of the same objectives. Failure to do so without good cause will constitute an impermissible departure from the guidance.”

The final issue arising between the parties focused on the claim for an order that the Defendant should treat C ‘as if she were a former relevant child’, the objective being to trigger the responsibilities arising pursuant to the Children (Leaving Care) Act 2005. If a child has been accommodated for more than 13 weeks after the age of 14, including at least some time after the age of 16, he is an ‘eligible child’ while aged 16 or 17 see: paragraph 19B, Schedule 2, CA 89; the Children (Leaving Care) Regulations 2001, Reg 3. If he is no longer accommodated some time after the age of 16, he is a ‘relevant child’ see: s23A, CA 89.

This provides a gateway to a raft of further provisions of support, including care and accommodation which a local authority is obligated to provide to the “eligible child” or “relevant child” throughout his childhood. Once ‘eligible’ and ‘relevant’ children reach the age of 18, they acquire the status of ‘former relevant children’ which has considerable legal significance, establishing an entitlement to a wide range of support under the ‘Leaving Care’ provisions (s23C-23E) until the age of 21 (or 24 if they remain in education).

The transitional planning for a care leaver is required to commence before he turns 18 years old and is governed, extensively, by the framework of the Care Planning, Placement and Case Review Regulations 2010 and the Care Leavers (England) Regulations 2010 which supplement the primary legislation under sections 23A-E, CA 89.

This support includes the drawing up of a Pathway Plan (s23C(3)(b)), the appointment of a personal advisor (s23C(3)(a)), and support in finding accommodation, employment, education and access to benefits. There is a duty on the relevant local authority to provide a ‘former relevant child’ with such “assistance to the extent that his welfare requires”: s23C(4)(c). The Plan includes, inter alia:

The general aim of the leaving care responsibilities is to provide a child or young person with “the sort of parental guidance and support which most young people growing up in their own families can take for granted but which those who are separated or estranged from their families cannot”: see para 8 of Lady Hale’s speech in G v Southwark (supra).

Mr Paget submits that if, contrary to the Defendant’s primary position, the Grounds for Judicial Review have been made out, the application has now been overtaken by circumstances, given that the Claimant is no longer a child. He emphasises that the remedies in judicial review are ‘discretionary’ and will be applied to abate or cure an error in public law which will affect a certain class of the public. Judicial review, Mr Paget says, correctly, is not the appropriate route to assert a private law right. Where any public law element is not made out or has fallen away, the action can be transferred to the Queen’s Bench Division, to be determined as a private law action. The Court of Appeal in R v Ministry of Agriculture, Food and Fisheries ex p Live Sheep Traders Ltd [1995] COD 233 confirmed that where it is quite clear that any declaration was going to be of academic interest it was not the function of the court to give bare declarations which were of no utility. The Court was not in the business of enabling an applicant to seek a remedy merely to show that a public body had behaved improperly: see R v BBC ex p Quintavelle (1998) 10 Admin LR 425 CA andR (on the application of Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin). In the latter case Silber J stated:

“In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.”

It is important here to consider the ambition of the declarations sought. I set them out in full:

Mr Paget says that the impact of these declarations and in particular (d) above would, in effect, be to ‘deem’ C to be a ‘former relevant child’ which, he submits, is wrong in principle. My attention has been drawn to a number of recent cases where a local authority did not provide s.20 accommodation in circumstances where they ought to have: R (MM) v Lewisham London Borough Council [2009] EWHC 416 (Admin) and R (R) v Croydon London Borough Council [2013] EWHC 4243 (Admin). However, the most recent analysis is that of Christopher Clarke LJ in R (GE (Eritrea) v Home Secretary [2014] EWCA Civ 1490. The basic principle is set out in unalloyed terms:

“44 So far as principle is concerned, there seems to me no good reason to hold that a child who has not in fact been looked after by a local authority should be treated as if he had been, so as to be able, on that account, to become a former relevant child. The purpose of the provision is to provide some continuity of care and assistance after a child who has been looked after by the local authority becomes 18. The draftsman cannot, I think, be taken to have contemplated that provisions intended to have that effect should create a right, after the child was 18, on account of the fact that he should have been, but was not, accommodated for the relevant period before then.”

However, Christopher Clarke LJ plainly considered that did not absolve the Local Authority, in such circumstances, from its discretionary responsibility:

“53.

If, as I think, R could not be deemed to be a former relevant child, the best that he could hope for would be that the local authority should treat him as if he was a former relevant child. For practical purposes that might be regarded as amounting to the same thing. But there is a critical difference. If R was to be deemed to be a former relevant child, he would be entitled to the whole range of duties applicable to such a person. If, however he was to be treated as if he was such a child, this could only be on the basis that the local authority should exercise its discretion to act in this way. Any such discretion, if it fell to be exercised at all, would have some flexibility. The local authority might, for instance, decide to provide some but not all of the services that it might have been obliged to provide if R was, in fact, a former relevant child. ”

Moreover, it was recognised that the rational use of such discretionary power may, in some circumstances, oblige a local authority fully to make good any unlawfulness that the Court has identified:

“54 I accept that a local authority may use its discretionary powers to make good any unlawfulness that it has committed in the past and may, in some circumstances, be obliged to do so. In R (S) v Secretary of State for the Home Department [2007] Imm AR 781 this court drew attention to the fact that the Secretary of State had a residual discretionary power to grant indefinite leave to remain to someone no longer entitled to refugee status as such; that the grant of indefinite leave might provide a remedy for unfairness; and that it was open to the court to determine that a legally material factor in the exercise of the discretion was the correction of injustice. In an extreme case the court could hold that the unfairness was so obvious, and the remedy so plain, that there was only one way in which the Secretary of State could reasonably exercise his discretion. (That appears to be what Thirlwall J decided in R (R) v Croydon London Borough Council [2013] EWHC 4243.) The court recognised that the Secretary of States decision would fall to be made on the basis of present circumstances but those circumstances might include the present need to remedy injustice caused by past illegality: para 47.”

Whilst this does not amount to any general proposition that a local authority must atone to the fullest extent that it can, much will depend on the identified degree of fault or ‘blameworthiness’:

“55 There is no general rule that, wherever it has acted unlawfully, a local authority must undo its past errors to the fullest extent that it can. Much will depend on the circumstances, including whether or not the claimant had sought interim relief and been refused (as here), whether he was guilty of unacceptable delay, and whether and to what extent the authority or the claimant should be regarded as blameworthy. There may be countervailing considerations of public interest which would entitle it to refuse any relief at all. It may be relevant to consider what other remedies are open to the claimant. The matter would be one for the discretion of the local authority, to be determined in the light of whatever application is made and in the circumstances applying when it is invoked”.

It is perhaps important to interpolate here that interim relief was both sought and granted. As I have observed above (para 30) Walker J, on the 19^th November 2015, ordered that pending determination of the application for permission to apply for Judicial Review or further Order, the Defendant should forthwith provide accommodation and support to C under s.20 of the Children Act 1989. Had C not turned 18, as she did on the 7^th February 2016, she would have fallen within the embrace of the provisions set out at para 45-48 above and have achieved the status of ‘former relevant child’ in any event.

For the reasons that I have set out above I consider that the Local Authority’s decision making here is fundamentally flawed and, with respect to Mr Paget’s robust presentation of his case, difficult to justify or defend. I can not foresee any circumstances where it would be fair to exclude C from consideration of the entire range of services that would be open to her under s.35 Children (Living Care) Act 2000. This is not to say, of course, that her entitlement to services should necessarily be regarded as automatic, it is inextricably linked to the identification of her welfare requirements. In this respect therefore she is to be regarded ‘as if she were a former relevant child’, to adopt the distinction drawn by Christopher Clarke LJ (see para 53 above). It is plainly desirable for C to be supported to take decisions for herself which are both better informed and rooted in a more reflective analysis. It is perhaps also important to note that there may very well be a significant benefit to wider society.

In the light of my analysis above I consider that the available declaratory relief renders this case far from being ‘academic’. The draft orders, the phrasing of which I endorse, provide a real and vital remedy. The terminology is also carefully tailored to fit with the observations on the ambit of this relief identified by Christopher Clarke LJ, set out at paras 53 - 55 above.