QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HELEN BERHE, YORSMAME KIDANE, WAHDAT MUNIR, ALBERTINA NCUBE||(CLAIMANT)|
|THE LONDON BOROUGH OF HILLINGDON||(DEFENDANT)|
|SECRETARY OF STATE FOR EDUCATION AND SKILLS||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A LEVY QC and Mr J ROSENBLATT appeared on behalf of the DEFENDANT
MR S KOVATS appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
"(1) A local authority shall have the following additional functions in relation to an eligible child whom they are looking after.
(2) In subparagraph (1) 'eligible child' means, subject to subparagraph (3), a child who
(a) is aged sixteen or seventeen; and
(b) has been looked after by a local authority for a prescribed period, or periods amounting in all to a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen".
"Each local authority shall have the duties provided for in this section towards --
(a) a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and
(b) a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child,
and in this section such a person is referred to as a 'former relevant child'".
"has been looked after by a local authority for 13 weeks, or periods amounting in all to 13 weeks, which began after he reached the age of fourteen [but before he reached the age of sixteen] and ended after he reached the age of sixteen".
"By regulations, this new legislation applies to all children and young people aged 16 and over who have been looked after by a local authority for at least 13 weeks after they reached the age of 14. Those 13 weeks can be continuous or made up of separate episodes of care, excluding short-term placements made by way of respite care (regulation 3(2)), but must include a period of time after reaching the age of 16".
"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".
"In subsection (1) 'accommodation' means accommodation which is provided for a continuous period of more than 24 hours".
"(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".
"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.
(5) Every local authority --
(a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide which virtue of this section, or section 18, 20, 23 or 24; and
(b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
(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.
(11) ... in this Part --
'development' means physical, intellectual, emotional, social or behavioural development ... "
"(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".
"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.
(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 regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain".
"Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section".
"(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 subsection (5) and any regulations made by the Secretary of State) with --
(i) a family;
(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;
[(aa) maintaining him in an appropriate children's home;] or
(f) making such other arrangements as --
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State".
"(1) In section 17 of the 1989 Act (provision of services for children in need, their families and others) in subsection (6) (services that may be provided in exercise of the functions under that section) after 'include' there is inserted 'providing accommodation and'.
(2) In section 22 of that Act (general duty of local authority in relation to children looked after by them), in subsection (1) (looked after children include those provided with accommodation, with exceptions) before '23B' there is inserted '17'".
"The amendment to section 17 did not affect the duties and powers of local authorities to provide accommodation for lone children under section 20 of the Children Act 1989, or under a care order. Accordingly, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families. However, there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under section 17.
Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families, published by the Government in April 2000. It should then use the findings of that assessment, which will include taking account of the wishes and feelings of the up child (as required by section 20(6) the Children Act) as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to his circumstances.
The assessment should first determine whether the child meets the criteria set out in section 20(1). Those criteria are:
(a) there being no person who has parental responsibility for him;
(b) his being lost or abandoned
(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 and or care.
For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after, unless the needs assessment reveals particular factors which would suggest that alternative response would be more appropriate. While the needs assessment is being carried out, he should be cared for under section 20.
Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful means of support in this country. In such cases, the child's being without a family or responsible adult in this country would appear to trigger a duty under section 20(1). However, after taking account of the child's wishes as required by section 20(6), the local authority might judge that the child is competent to look after himself. In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20 (and thereby taking him into the looked after system). In such cases section 17 may be used for support, including help with accommodation, without making the child a looked after child".
"For the majority, it is concluded that they are able to live in the community with a support plan and be provided with services under section 17 of the Children Act 1989 ...
A small number of these young people are accommodated under section 20 as a consequence of the Department's assessment of their needs".
"Given the circumstances of these unaccompanied young people, the initial primary needs are usually for housing provision, financial subsistence and any immediate health care needs.
48. It is recognised that for the majority of unaccompanied 16 and 17 years olds, there is no one available to them who can exercise parental responsibility for them. Such young people are clearly 'children in need' and require somewhere to live".
"However, it is reasonable to consider as to whether the provision of services under section 20 would have any effect in this respect. Section 20 does not confer parental responsibility on the Local Authority; a young person of 16 and over would be regarded as capable of taking any significant decision about their life, without reference to an adult and therefore 'beyond' Parental Responsibility. I believe that it is therefore reasonable for the Local Authority to provide such services under section 17, in line with the assessment of such young people. This is completely in line with the provision of services for local young people of 16 and 17, who are unable for a number of reasons to live with their families.
49. Unaccompanied 16 - 17 years olds are clearly estranged in difficult circumstances from their families of origin. The level the service which has therefore been developed is to meet this level of need. In many cases, this is in fact a higher level of service than is required by local young people of this age group, where the degree of estrangement from their natural family is usually less. Local young people of 16 - 17, who are unable to live with their natural family, the majority are supported in housing provision in the community, unless their needs dictate otherwise".
"The Local Authority undertook assessments of these young people under section 17 of the Children Act, decided that they were "Children in Need" and provided services accordingly under section 17. It is therefore the Local Authority's contention that they are not entitled to services under the Children (Leaving Care) Act. We believe that there is a clear difference between providing actual housing provision and 'accommodation' (section 20)".