COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE RIX
| G'S APPLICATION FOR JUDICIAL REVIEW
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John Howell Q .C. and Stephen Knafler (instructed by Messrs Bindman & Partners for the Respondent)
Crown Copyright ©
LORD JUSTICE WARD:
"The local authority made a number of enquiries seeking information about her situation in Holland. Contact was made with her social worker in Holland. The local authority reached the conclusion that the reasons she gave for leaving Holland are not true. The local authority also reached the conclusion that if she were to return to Holland with her son, she and her son would be properly looked after by the Social Services in Holland. During the course of the hearing Mr Knafler on behalf of the claimant accepted, for the purposes of argument, that these conclusions could not be challenged as conclusions which a reasonable decision maker could not have reached. I therefore approach this case on the basis that there is no good reason why the claimant should not return to Holland with her son and that if she were to return she and her son would be properly looked after.
She has given as a reason for wanting to come to this country that she is searching for B's father who she says she believes is in this country. Following enquiries the defendant has doubts that she is telling the truth about this. There is evidence from Holland that she does not know who the father is. It was accepted by Mr Knafler, for the purposes of argument, that the local authority was reasonably entitled to reach the conclusion that it did about this suggested reason for coming to this country."
Those concessions are similarly made by Mr Howell Q.C. for the purposes of this appeal.
"I am writing to confirm the outcome of your office visit on Wednesday, 4th October 2000 and to give you seven days' notice of our decision to end your support and accommodation.
We are aware that you and B need accommodation and money to live from, and you are not at present entitled to benefits in this country, although we are aware that you would be visiting the DSS on Thursday 12th October.
We continue to believe that it is in the best interests of you and B for you both to return to Holland where you are entitled to accommodation and benefits immediately. We also believe that it would be better for you both to be in an environment where you have family support and can speak the language. We have heard about your reasons for being in London and why you do not wish to return to Holland, however we do not accept that these are completely truthful, and we do not think that they constitute a valid reason why you may not return to Holland.
We therefore told you that the weekly payments will stop. You may collect the payment on Thursday 12th October to cover you until Monday 16th October which will be the last payment. The hotel booking will end on the same day, with your last night being Sunday 15th October.
We offered you the fares back to Holland. You refused this, however the offer will continue to be open. You, or your representatives, should contact the office to access this. If you continue to remain here we are concerned that B would not have access to accommodation or subsistence. We offered to provide B with accommodation without yourself. You indicated that you did not wish to consider this. This offer too remains open.
If your circumstances change and you or your representatives wish for us to re-consider our services to you, then you will need to contact this office."
"It is in the public interest that this be considered by the Court of Appeal given the possible financial implications."
In the course of his judgment the judge said:-
"There is no dispute that the claimant is a good mother, ignoring her refusal to return to Holland. Apart from that refusal there is no issue as to her suitability to look after the child. Nor can there be any doubt that it would not be in this child's best interests to remove him at this young age from his mother. If the claimant remains in England and the defendant pursues the course outlined in the challenge letter, B will be put into the care of foster parents."
That remains the common ground for the purposes of this appeal.
The Statutory Background.
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 I of Schedule 2.
(3) Any service provided by an authority in exercise of the 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.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash.
(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 person with whom he has been living.
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.
(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.
(7) A local authority may not provide accommodation under this section for any child if any person who -
(a) has parental responsibility for him; and
(b) is willing and able to
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
Duties of local authorities in relation to children looked after by them.
22. General duty of local authority in relation to children looked after by them.
(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is -
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970.
(2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours.
(3) It shall be the duty of a local authority looking after any child -
(a) to safeguard and promote his welfare; and
(b) to make use of such services available for children cared for by their own parents as appears to the authority reasonable in his case.
23. Provision of accommodation and maintenance by local authority for children whom they are looking after.
(1) It shall be the duty of any local authority looking after a child -
(a) when he is in their care, to provide accommodation for him; and
(b) to maintain him in other respects apart from providing accommodation for him.
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by -
(a) placing him (subject to sub-section (5) and any regulations made by the Secretary of State) with -
(ii) a relative of his; or
(iii) any other suitable person,
on such terms as to payment by the authority and otherwise as the authority may determine.
(f) Making such other arrangements as
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State;
(3) Any person with whom a child has been placed under sub-section (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(4) A person falls within this subsection if he is -
(a) a parent of the child;
(6) Subject to any regulations made by the Secretary of State for the purposes of this sub-section, a local authority looking after a child shall make arrangements to enable him to live with -
(a) any person falling within sub-section (4); or
(b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare."
We are told that no regulations have been made by the Secretary of State for the purposes of subsection (6) of section 23.
"Every local authority shall take reasonable steps designed -
(a) to reduce the need to bring -
(i) proceedings for care or supervision orders with respect to children within their area ..."
"(1) A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.
(2) A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales."
"(1) Every local authority shall establish a social services committee and, subject to subsection (3) below, there shall stand referred to that committee all matters relating to the discharge by the authority of -
(a) their functions under the enactments specified in the first column of Schedule 1 to this Act (being the functions which are described in general terms in the second column of that schedule) ..."
The whole of the Children Act, insofar as it confers functions on a local authority within the meaning of that Act, is specified in the first column of Schedule 1 and the functions described in general terms in the second column of that Schedule are the functions under Part III of the Act (Local Authority Support for Children and Families).
The judgment under appeal.
"What are the obligations of a local authority under the Children Act 1989 towards a young child who is within the area of the local authority because a parent refuses without good reason to take the child to a place outside the area of the local authority where the child would be properly looked after?"
In his judgment he drew support from R v Hammersmith and Fulham LBC ex parte Damoah  2 C.C.L.R. 18. He recorded the submission of Mr Harrop-Griffiths that:-
"As a general principle, it cannot be right that a mother who can reasonably have access to the means of meeting (the needs of her child) but refuses to pursue this, should be able to rely on this refusal as the basis for the child's need and so in effect require a local authority to provide her with such support."
"I have considerable sympathy with this submission. However, if the child is "in need" by virtue of section 17(10) (and it is conceded by Mr Harrop-Griffiths that B is) and if it is in the best interests of the child to live with his mother (as it is in this case), it seems to me that the local authority, exercising its Children Act powers, has no alternative but to place him with his mother assuming that it is reasonably practicable to do so. Given the duties imposed on the local authority under section 17(1)(a) and (b) and the powers granted to it by Section 23 and bearing in mind the decision in Damoah, it is difficult to see what other course is open to the local authority even though the mother (as in this case) is, in the view of the local authority, acting in an unreasonable manner. It may be that the local authorities would be better advised to take the course suggested by Kay J. in Damoah, namely make the offer of free travel and indicate that, should the offer not be accepted, the local authority would reconsider its position in the light of its obligations under the Children Act. For these reasons this application succeeds."
The submissions before us.
Section 17 of the Act.
"If Mr Smith and his family were ejected by the housing authority from their temporary accommodation on 20th January 1993, his children would be in need. By section 17(3) a Social Services authority has power to provide services for the family of a particular child in need. By section 17(6) the Social Services authority were entitled to give assistance in cash to safeguard and promote the welfare of children." (Emphasis added by me).
At p.410 he said:-
"The provisions of section 27 of the Children Act of 1989 ... imposed on the housing authority a duty to ascertain whether the housing authority could, without unduly prejudicing the discharge of their functions, provide a solution or co-operate in securing a solution to the problems of the Smith family to the extent necessary to prevent the children from suffering from lack of accommodation. ... There might have been no solution which did not impose on the housing authority a financial burden which they considered unduly prejudicial to the discharge of their functions. Mr Smith might have been an unacceptable tenant. Failing any acceptable solution, it would have been the duty of the Social Services authority to protect the children by providing financial assistance towards the accommodation of the family or by exercising the other powers available to the Social Services under the Children Act 1989." (Again the emphasis is mine.)
It is to be observed firstly that whereas Lord Templeman in the latter passage spoke of the duty of the Social Services, he had in the earlier passages referred to the powers provided by section 17(3) and (6).
"It shall be the duty of every local authority to make available such ... assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under the Children Act 1948 ... and any provision made by a local authority under this subsection may, if the local authority think fit, include provision for giving assistance in kind or, in exceptional circumstances, in cash."
One sees quite plainly the genesis of Section 17. Templeman L.J., as he then was, held at p.857:-
"To my mind, the word "assistance" in section 1(1) of the Act of 1963 clearly includes the provision of accommodation and then provides that the general powers of a local authority shall include specific powers. (Emphasis added).
So once again the categorisation is of powers not duties. I also note that at p.858 Templeman L.J. said this:-
"Children's needs, and their welfare, depend on a variety of factors. When the council are considering the exercise of their powers and duties under the Act of 1963 one of the factors that they must take into account is the history of the family, including any history of intentional homelessness. The council must not take intentional homelessness into account for the purpose of punishing the child or punishing the parents of the child, but must take it into account in asking: "What is the best way, in the interests of this child, of exercising the powers which are given to us?""
In the appeal before us there is no Wednesbury challenge to the reasonableness or rationality of the local authority's conclusions only to the lawfulness of the choices they made.
"A local authority may in discharge of its duties under Part III of the Act make an offer to the parent of a child it determines to be in need to give financial assistance for the family to return to a country from where they have come and where it believes the needs of the child will be best met. It is wrong, however, for the local authority to decide to withdraw all further assistance for the child in the event that the parent declines to accept the offer and it must clearly follow that it is wrong for it to threaten such a course of action even if it has made no such decision."
(1) That they had decided to end their support and accommodation in seven days' time, consistent with the undertaking they gave Turner J.
(2) They explained where they believed the best interests of B lay.
(3) They offered the mother her fares back to Holland, an offer which was left open.
(4) If the mother insisted on remaining here without access to accommodation or subsistence, then the local authority offered to provide B with accommodation without the mother and that offer was also to remain open.
(5) Finally the local authority indicated that if the mother's circumstances changed and she wished them to reconsider their services, she could apply accordingly.
(1) On his case, section 23 only applies because of the offer to accommodate B under section 20. On the proper construction I have found for section 20, the duty is to accommodate the child only, not to accommodate mother and child. On Mr Howell's construction of the operation of these sections, that duty under section 20 would immediately be transformed by virtue of section 23(6) into a duty to house both. The statute cannot be construed in a way to produce such an odd result. It must be absurd if the lawfulness of the local authority's decisions that it is unwilling any longer to accommodate the mother and child under section 17 but that it will accommodate the child, but not the mother and the child, under section 20, can be set at nought as it would be if section 23(6) meant that the local authority suddenly had to do what a moment earlier they were not obliged to do, namely find accommodation for both together. That construction simply cannot be right. If the duty to accommodate the child (the section 20 duty) is the primary duty, and section 23 provides, as Mr Howell acknowledges, the range of choice for the performance of that duty, then that mechanistic purpose of section 23 should not be used totally to change the nature of the primary duty it is there to serve.
(2) Mr Howell places section 23(6) at the forefront of his case. In his submission section 23(6) means that the only lawful step for a local authority in circumstances like these is to offer accommodation to mother and child. If he is right, such a far reaching duty which would leave the Social Services Department with practically no discretion, would impose considerable strain on their stretched resources, and would render Part VII of the Housing Act 1996 virtually irrelevant where the intentionally homeless person is a parent with young children. I would be astonished to find that such a hugely important social provision should be hidden away in the sixth subsection of the seventh section in Part III of the Children Act. The Children Act was indeed a great reforming statute but I would have expected that if the reforms went that far then they would find a more prominent place in the statutory framework and be spelt out in clearer language than is urged upon us.
(3) The duty under section 23(6) is that the local authority make arrangements to enable the child "to live with" his parents. That begs the question where B is to live with his mother. The local authority are, in my judgment, perfectly entitled to say that they have made arrangements for B to live with his mother if only she will accept their offer to go home. Subsection 6 makes no reference to the accommodation in which the child is to live with the mother and it seems to me to be a mighty jump to infer from an underlying philosophy of the Children Act that encourages children to be brought up by their parents that suddenly there is a duty on the local authority to provide the accommodation which the mother cannot herself provide. Such an onerous duty to provide housing for the mother is not, in my judgment, a necessary implication from a duty to make arrangements to enable the child to live with the mother.
(4) Under subsection 6 arrangements for the child to live with the parent must be made "unless that would not be reasonably practicable or consistent with his welfare". In my judgment it is not reasonably practicable to make arrangements for this child to live with his mother because this mother has no accommodation at which her child can live with her. But I have already made that point. It would not be consistent with his welfare to have him living with his mother on the streets. I reject the argument that a duty to provide the necessary accommodation arises because the mother cannot cope without that help.
Paragraph 19 of Part II of the First Schedule.
LORD JUSTICE MAY: I agree.
LORD JUSTICE RIX: I also agree.