QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London WC2A 2LL |
||
B e f o r e :
____________________
THE QUEEN (on the application of) | ||
LIVERPOOL CITY COUNCIL | Claimant | |
- and - | ||
LONDON BOROUGH OF HILLINGDON | Defendant | |
- and - | ||
AYAN KHAN | Interested Party |
____________________
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Hilton Harrop-Griffiths (instructed by Borough Solicitor, London Borough of Hillingdon) for Defendant
Adam Fullwood (instructed by Jackson & Canter, Liverpool) for Interested Party
____________________
Crown Copyright ©
INTRODUCTION
THE FACTS
THE STATUTORY FRAMEWORK
"(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) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within -
(a) three months of being notified in writing that the child is being provided with accommodation; or(b) such other longer period as may be prescribed."
"(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."
LA CIRCULAR
"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 child (as required by section 20(6) of 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). ...
While the needs assessment is being carried out, he should be cared for under section 20."
"Where a Social Services Department provides help under section 17 which involves providing or funding accommodation out of their own area, the placing Department does not relinquish responsibility for the case unless it is specifically and formally transferred to another local authority. In addition, the placing authority should consider whether it is the child's best interests to advise the second authority of the placement, and should do so unless there are strong reasons not to."
CASE LAW
"It is, I think, implicit in this provision that the local authority will assess the actual needs of a child in need whenever it appears necessary to do so."
THE SANDRA STEWART CASE
"With regard to dumping or "passing the buck", there was no suggestion that Hammersmith had, in the present case, decided to accommodate the Stewarts in Lambeth in order to get rid of any statutory duties it had. It was accepted by Mr Giffin that if it had done so it would have exercised its powers for an improper purpose ..."
"The limited and temporary nature of Hammersmith's duty also distinguishes this case from the cases where an authority accommodates children in need in the area of another authority to have access to specialist services or to be close to particular relatives pursuant to a duty which is not so limited and temporary. As Mr Giffin conceded, an authority under a duty to provide services cannot bring that duty to an end by transferring a person to the area of another authority."
"Requiring physical presence is a clearer test than a purposive approach under which the nature and duration of the presence, or the responsibilities of the different authorities in the frame are taken into account. While physical presence may, as in the present case, involve more than one authority being subject to the duty, I do not consider that an objection. There are, for example, children who are accommodated for part of the week with one parent and partly with the other parent who lives in a different local authority. As Mr Knafler submitted in reply, the absence of a dispute resolution procedure such as that in section 30 in respect of the "ordinary residence" of a child supports the view that a section 17 duty may lie on more than one authority. In a case where more than one authority is under a duty to assess the needs of a child, there is clearly no reason for more than one authority to in fact assess a child's needs and there is a manifest case for co-operation under section 27 of the Children Act and a sharing of the burden by the authorities."
"I, however, reject Mr Giffin's submission that physical presence, although necessary, is not sufficient, and that the need must co-exist with the presence. This latter factor may not be apparent when an authority is approached by a person physically within its area and asked to make an assessment and requires further investigation of the sort deprecated by Mr Giffin. Moreover, as Mr Knafler stated, it may exclude a section 17 duty in respect of children of gypsies and travellers, and children on the run. It would also not eliminate the possibility that more than one authority might be under a duty; it would not, for example, do so in the case of children who are partly accommodated with one parent in one borough and partly with the other parent in a different borough. While consideration of whether the need co-exists with the presence may well be relevant in a case where more than one authority is under a section 17 duty and an assessment has been made, and the issue is which, if any authority might provide a given service, I do not consider it to be a prerequisite for the duty to assess. The duty under section 17 is to assess the needs of the child and "need" in section 17(10)(a) includes situations in which a child is unlikely to maintain a reasonable standard of health or development without the provision of services by "a" local authority. The provision is not restricted to services that would be provided by the authority making the assessment."
"The next question is whether either Lambeth or Wandsworth have failed to do something they were under a duty to do. Wandsworth's position, as I have stated earlier in this judgment, was that notwithstanding the children's physical presence at Wandsworth schools, they were not in need in Wandsworth and therefore it was not under a section 17 duty. Mr Giffin submitted that since the children were accommodated in Lambeth it was not Wednesbury unreasonable for Wandsworth not to provide accommodation, and it was not therefore in breach of its duty under section 17. This, however, goes to the content of the duty and what needs to be done by the authority with the children within its area and what services need to be provided by it rather than to the identification of the authority with a duty to assess. ..."
THE ISSUE
THE FIRST QUESTION
THE SECOND QUESTION
THE THIRD QUESTION
"11. ... I restated Hillingdon's position. Ms Martin confirmed that she was aware of a Tribunal decision and a paediatrician report, both of which concluded that AK is a minor. Ms Martin also confirmed that Liverpool were in receipt of a letter from AK's solicitor informing them that AK wished to return to Liverpool.12. I suggested to Ms Martin that in the interest that AK may be a minor, I could arrange for his release into accommodation over the weekend provided by Hillingdon with a view to Liverpool making arrangements to reassess him. Ms Martin thanked me for this. I subsequently emailed her confirming our discussion. Ms Martin has never responded to this email or indicated that she did not accept its content.
13. Arrangements were made for [AK] to be released from Harmondsworth on the evening of Friday 9 May. This was facilitated by our Emergency Duty Team. He was placed in accommodation over the weekend.
14. Hillingdon Social Services provided accommodation under S17. No assessments were undertaken as it was our belief that we were providing accommodation only for [AK] pending Liverpool Social Services arranging to reassess him.
15. On the next working day, Monday 12 May, Elizabeth Hearst made several attempts to make direct contact with Liverpool's Team manager and received no response.
16. On 13 May a social worker from Liverpool relayed a message from the manager to Ms Hearst stating that Liverpool were not accepting responsibility.
17. On 13 May [AK] was interviewed by a social worker in Hillingdon Asylum Intake Team during which he made it clear he wanted to return to Liverpool. The worker also phoned [AK's] solicitor who confirmed that his client wished to return to Liverpool and that a letter had been sent to Liverpool requesting this but Liverpool had not responded.
18. On 13 May Hillingdon Social Services legal department faxed a letter to Liverpool's legal department outlining our position and their responsibilities and stating that the young person wished to return to Liverpool."
"Further to our telephone conversation I have agreed in principle that our Service will provide accommodation for the above named young person pending a re-assessment of his age. It is our contention that any re-assessment of age should be undertaken by Liverpool as the original assessing authority. I look forward to this matter being resolved at the earliest opportunity and Team Manager Beth Hearst will continue to liaise with you about this."
"Just to confirm that the above young person was taken out of detention Friday night and provided with accommodation as per the agreement you reached with Paula. What can we do to further assist you with this matter today? The young person is clear that he wants to return to Liverpool as soon as possible."
"Do you have a direct work number I can reach you on? I've tried phoning over 4 times throughout the course of today on the main number given to us, 01512258620, and no one is picking up. As Paula said we would like to resolve this matter as soon as possible."
"I understand from your social worker who phoned me yesterday that you have access to your e-mails. Attached is a copy of the letter sent from our legal department to yours yesterday. Our position and your responsibilities are outlined very clearly. We are advising the young person to present to your office."
THE FOURTH QUESTION
"A LA approached for an age assessment should check whether any previous assessment has been carried out by another LA. The host LA should request a copy of the age assessment from the original LA and base further action on the content.In the event that no new evidence is being brought forward that was not considered at the original assessment, the issue should be treated as a complaint about the original assessment and referred to the LA responsible for it.
In the event that new evidence has been brought forward the host LA should continue to reassess the age of the applicant taking full account of all sources of information."
THE FIFTH QUESTION
THE SIXTH QUESTION
THE SEVENTH QUESTION
THE EIGHTH QUESTION
NINTH QUESTION
CONCLUSION
IN THE HIGH COURT OF JUSTICE CO/5939/08
QUEEN'S BENCH DIVISION Royal Courts of Justice
ADMINISTRATIVE COURT Strand, London WC2A 2LL
Neutral Citation Number: 2008 EWHC 1702 (ADMIN)
JAMES GOUDIE QC (DEPUTY JUDGE) Date: 18/07/2008
B E T W E E N :
Claimant
Defendant
Interested Party
Bryan McGuire (instructed by City Solicitor, Liverpool City Council) for Claimant
Hilton Harrop-Griffiths (instructed by Borough Solicitor, London Borough of Hillingdon) for Defendant
Adam Fullwood (instructed by Jackson & Canter, Liverpool) for Interested Party