QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF W||(CLAIMANT)|
|OXFORDSHIRE COUNTY COUNCIL||(DEFENDANT)|
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 SHELDON (attended for hearing) and MS PROOPS (attended for judgment)(instructed by Oxfordshire Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Your current needs do not meet Oxfordshire County Council Social Services Department eligibility criteria for accommodation or services under the provision of Section 21 of the National Assistance Act or Section 47 of the National Health Service Community Care Act 1990.
"I am aware that colleagues in the Children and Families Department (Oxford) are undertaking an assessment and will be in contact with you under separate cover."
On the 18th July, assessments were completed on A and D under Section 17 of the Children Act 1989. This led to a decision which is evidenced by a letter dated 19th July and by the Acknowledgment of Service in these proceedings, which bears the same date. In the Acknowledgment of Service it is stated:
"The Defendant has also considered its obligations under Section 17 Children Act 1989. The Defendant has completed an appropriate assessment and has concluded that it would be reasonable not to exercise its discretionary power to provide support for the Claimant and her daughters. The Defendant relies on the fact that the Claimant has a large extended family and other family members have been providing support to the Claimant and her family at regular times; the Claimant is able to work and though one of her daughters has mental health problems these are considered to be stable as is evidenced by the fact that the daughter has expressed a desire to gain employment and go to college. The Claimant has also support for [sic] her local Church community. The Claimant has also not exercised her legal right to seek support from her former partner which is open to her."
In the letter of 19th July it was added:
"You may wish to take instructions from your client about whether she wishes to accept an offer from Social Services to pay for her return flight to Jamaica where Social Services consider that her and her family's needs could be met. We should be grateful if you would take instructions on that point."
"Section 21 National Assistance Act 1948 Assessment
The Assessment was originally carried out on 16 July 2002 and a further assessment was undertaken on 25 September 2002.
"We attach a copy of the reasons as to why it is considered your client does not qualify for support pursuant to Section 21 of the National Assistance Act 1948.
"It is also apparent that your client may have accommodation otherwise available to her in Jamaica.
"Section 17 of the Children Act 1989
The Assessment undertaken on 24 October 2002 sets out on the face of it the reasons why it is considered that the Local Authority have discharged its obligations pursuant to Section 17 by offering payment of the fares to [the claimant] and her children to return to Jamaica. You will note from the Assessment that this is considered to be the best way of meeting all your client's children's needs.
"In the event that your client considers that she does not want to take up this offer and insists on remaining in this country without access to accommodation or subsistence then Social Services propose to offer to provide accommodation for [D] and [A] pursuant to Section 20 of the Children Act 1989."
"It was and continues to be in the best interests of the children and [the claimant] to return to Jamaica. I considered, and still consider, that they will have support and accommodation available to them in Jamaica that will meet their needs."
"1) It shall be the general duty of every local authority ...
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 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."
"If the Council could make proper provision to meet the needs of the family, including the mother, as a whole, under the provisions of section 17 then there was no requirement to consider separately any duty to the mother as an individual under section 21."
"Both [A] and [D] are distressed with their current situation. As children they need permanence, security and stability in their lives. They need an environment which meets their educational, social and physical and emotional needs. It is therefore my professional judgement that the children should return to Jamaica, back to their father and grandparents who have played an instrumental part in their earlier upbringing."
And a little later:
"It is clear that the majority of [the claimant's, A's and D's] lives have been spent in Jamaica. There is no evidence of them being a tight family unit who have lived together before coming to England."
"Therefore, it is my professional judgement that [D] and [A], although classed as children in need do not meet the criteria for children needing to be looked after by the Local Authority. I believe [A] and [D] should return to Jamaica to their paternal family as soon as possible."
The core assessment was signed by Barbara Lee. It is the view that informs all the later decisions and from which she does not resile.
"[A] feels that this [a return to Jamaica and to the father and grandparents] is the best option. She is ambivalent about her child care course. She would like to work caring for adults. She does not like to see her mother upset. [D], she says, does not know what she would like, just for everyone to be happy and settled."
However, given their ages it cannot be said that the ascertainment of their views at that time was anything other than cursory. In the same report it is stated:
"I met [A] in passing as I was leaving -- having been given a cup of tea. Before departing, [A, D and the claimant] were in high spirits laughing and joking. [The claimant] spoke about her divorce".
Nor do the earlier assessments evidence a serious ascertainment of A's and D's response to this proposed solution, although it is right to say that they were spoken to at greater length on those occasions.
"[K] confirmed that a return to Jamaica would be difficult and while she had moved to a bigger flat it may be that they would have to make temporary arrangements for her sleeping which could included [sic]a mattress on the floor. I do not consider this to be unreasonable as this is what [the claimant] has done for much of her life and certainly was the position prior to her move to this country."
K is aged about 24 and lives with her partner, whom the claimant does not know, and her own child, age 7.
Other grounds of challenge