EA v GA & Westminster City Council & Salford City Council [2010] EWCA Civ 586 [Not on Bailii, transcript on Lawtel]

This is a little outside our usual grounds, but as it concerns the Court’s power to direct Local Authorities to accommodate a child and parent, and has interplay with S.20 Children Act 1989, it is worth a note.

The issue in this appeal was the extent of the Court’s powers to order a Local Authority to provide accommodation under Section 5 Child Abduction and Custody Act 1985.

EA, the mother, had removed J and K, the children and fled from Ireland to, first, Salford. She was Nigerian and on a vistors visa, so became an illegal immigrant. The children were born in Ireland and were EU Citizens. They were accommodated by Salford for 4 weeks. Salford then gave her the money to go to London, one way.

The father, GA, is also Nigerian. He applied for a return order under the Hague Abduction Convention 1980. This was listed before HHJ Coates, EA having been located since first order was made. HHJ Coates made an order under s.5 Child Abduction and Custody Act that EA, J and K were to be accommodated by Westminster City Council in the interim while giving case management directions. Westminster were informed that such an order was to be sought just before the hearing, were not represented and presumably in view of the the permission to apply to discharge the order on 1 days notice.

Westminster applied to set aside the accommodation direction on the basis that it should have been Salford ordered to provide accommodation. Jurisdiction to make the order, even with ‘no true protective ingredient to the order’, was conceded. At hearing, Mostyn J doubted Westminster’s concession and took the view that there was no risk of further flight or deceit in this case, that s.5 did not bite where there was no protective purpose to the accommodation, and that it was likely that s.17 and s.20 Children Act 1987 would apply instead, creating a different duty for Westminster. The accommodation direction was discharged, with permission to appeal for everyone concerned and deferred discharge pending appeal.

EA appealed. Before the appeal was heard, an assessment of K made clear that he was a very vulnerable child with very special needs. On the basis of this report, EA argued that K should never be homeless or be without his mother’s care. A broad interpretation of s.5 was merited as there could be no doubt of K’s need for protection and such an interpretation was required to meet the requirements of Article 7B of the Convention.

S.5 reads as follows:

Interim powers
Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

For GA it was argued that an accommodation order may be needed to prevent further abduction, but also to promote preparation of a defence to the return application and to promote the welfare of the abducted child, particularly if the child has special needs. Further, a constricted view of the section as applying only to a further abduction risk would leave obvious lacunae in the Court’s powers – if the absconding parent was in custody, for instance.

Westminster argued that on the facts, s.17 and s.20 Children Act would clearly apply, such that it was unnecessary to spell a duty to accommodate out of the wording of s.5 of the Child Abduction Act, which was aimed to prevent further abduction.

Held:
The language of s.5 was broad. it needed to be in order to achieve the Convention goals and to safeguard the welfare of children whose vulnerability may well be amplified by the effects of abduction. While the commonest risk may be that of further abduction, that is but part of safeguarding the welfare of the child, were the welfare need may be unrelated to the risk of another upheaval. S.17 and s.20 Children Act discretionary powers [an error on s.20 powers being discretionary there, surely, NL] are considerably less satisfactory than a court’s powers to order accommodation in these circumstances, and there is no requirement to provide accommodation to the mother under those sections save her common law claim on grounds of humanity.

This finding is likely to be of very limited effect. Westminster had complained of the likely effect upon it, given its size and proximity to the Royal Courts of Justice, but had been unable to provide figures on the number of s.5 orders to accommodate it had received. In the circumstances there was no reason to believe that this case would be of far reaching impact.