R (on the application of PK) v Harrow LBC (2014) QBD Admin 30 January 2014 [Lawtel note, no transcript yet]
This judicial review is possibly one for the ‘what were they thinking?’ pile.
The Claimants were the children of M. The family was street homeless and destitute following eviction. It appears that Harrow had decided there was no duty to accommodate M, as the family was referred to Social Services.
Harrow carried out an assessment, then said that it was obliged to provide the children with accommodation under s.17 and s.20 Children Act 1989, but not the mother.
The children applied for judicial review, and interim relief was granted. The children argued that as the assessment meant they would be separated from their mother, Harrow had not addressed their rights under Article 8 of the Convention.
Harrow admitted that the assessment engaged Article 8, but argued that its assessment did not amount to a decision.
Rather unsurprisingly, the High Court held that the assessment was indeed a decision. No proper human rights assessment had been carried out and the decision therefore failed to take into account the children’s Article 8 rights. R (on the application of G) v Barnet LBC  UKHL 57,  2 A.C. 208 considered on the extent of the s.17(1) duty. The decision was unlawful.
I really want to see a transcript of this, or at least get more detail. I find it hard to believe that Harrow actually defended on the basis that the s.17 Children Act assessment was not a decision, or that there wasn’t something more to it than is set out in the lawtel note if they did argue that.
While R(G) v Barnet found that there was no mandatory duty to provide housing to the parent of a child to whom as s.17/s.20 duty was owed, it is surely now generally understood that any decision that engages the child’s Article 8 rights has to involve a consideration of those rights and that an interference with them has to be for a legitimate aim and proportionate. That is going the be a high threshold for the decision to meet for separating child and parent in these circumstances. Not actually considering the child’s article 8 rights at all is surely inevitably going to be unlawful.