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05/12/2008

Avoiding s.20 duties to children?

I am strangely and unaccountably late with this one – I can only presume it was released late by Bailii and it was August anyway. But finally, here is R(M) v Barnet LBC [2008] EWHC 2354 (Admin), a judicial review on a decision to assist a 17 year old under s.17 Children Act 1989, rather than s.20, and thereby avoiding the continuing care and assistance duties that follow from s.20.

M had a difficult relation with her parents, particularly her father. She had repeatedly left the family home before. In 2006, she left home. There were unsubstantiated accusations of abuse. She presented to the London Refuge. Barnet carried out an assessment and had accommodated her since November 2006, under s.17 Children Act 1989 powers.

M applied for Judicial Review, on the basis that Barnet should have been acting under s.20. M claimed that: i) Barnet adopted a policy to avoid s.20 duties; and ii) that the decision to use s.17 powers in M’s case was wrong.

On i), M relied on a protocol document called Barnet Home Seekers: Childrens Panel, Protocol and Procedures, which solely addressed s.17. Barnet stated that this was not surprising as the document referred to procdure once a decision as to s.17 or s.20 duty had been made, and it was the s.17 document. Barnet produced a further document – a ‘route map’ for looking after children which described the ‘looked after child’ route. The Court accepted this a referring to s.20 duty. This ground failed.

On ii), M submitted that the decision was unlawful, on the basis of R (S) v London Borough of Sutton [2007] EWHC 1196 (Admin) and R (M) v Hammersmith and Fulham [2008] 1 WLR. The issue was whether the person caring for M was ‘prevented’ from providing suitable accommodation and care.

In R(S) v Sutton, Stanley Burnton J said, at para 40:

Prevention undoubtedly involves an objective test. It is not satisfied if the facts are only that child does not want to live with someone who is willing to provide suitable accommodation. But circumstances do arise where people are so incompatible that they simply cannot live together. According to Ms Gardner’s witness statement, J’s father was unable to offer her accommodation on her release because of her difficult relationship with his partner. The fact that J’s placement with her father in November 2005 failed so speedily supports the conclusion that on 11 November 2005 he could not provide accommodation for her. In these circumstances, section 20(1)(c) was satisfied, and Sutton was under the duty imposed by that subsection.

M argued that this applied to her situation.

Barnet raised G v Southwark [2008] EWCA Civ 877, (NL note here), in particular Longmore LJ’s statement that:

The truth is that Southwark have decided that G is a resourceful teenager who is capable of sourcing accommodation provided that he is given assistance to do so. That was a decision that was legally open to the local authority and it is not for this court (which has not even, unlike the local authority, seen G) to second-guess their evaluation of the position.

The Court held that the proper test was “whether there is anything irrational or perverse in the view that the Local Authority here arrived at as to whether their duty under section 20 was engaged”. On the evidence, there wasn’t – in particular given the repeated comments by M’s parents that she was welcome to return and that they were able to care for her. A late statement to the contrary by the parents did not apply to the period of the decision.

The application was refused and permission to appeal refused (with conditions on continuing to accommodate pending application for permission to appeal to the Court of Appeal).

I am so late on this one that application for permission to appeal has already been made to the Court of Appeal. One to watch for, then.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. J

    Given that the House of Lords is hearing G v Southwark on 28/29 Jan 08, surely the application for permission to appeal will be stayed pending judgment in that case?

    Reply

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