In a judgment of undisguised anger, Cobb J described the conduct of LB Tower Hamlets and LB Havering as “shameful” in the way in which they treated AM and his family.  I haven’t come across Cobb J before but his judgment in AM v Tower Hamlets LBC and Havering LBC [2015] EWHC 1004 (Admin) is just about as good a judgment as I’ve read in a long time.  The question was which authority should have “picked up” AM and his household, with children who were almost certainly in need under s.17, Children Act 1989.

It is another of those out-of-area placement cases, where the authorities are basically washing their hands of the children and the family is being pushed from pillar to post, as he puts it.  I see the undisguised anger with which the judgment is written partly because of its structure – it is largely written in a series of roman numeral paragraphs (I pity the computer on which it was written, as my sense is that he was banging the keys with fury).  He lists in one lengthy paragraph the very many cases in which s.17 Children Act 1989 has been considered.  Where there is a semblance of doubt about the law – and, frankly, in such a litigated field, there ain’t much – he resolves it clearly and forcefully.

In essence, AM was found intentionally homeless by LBTH in March 2013, following which AM’s case was properly referred to LBTH’s children’s services.  Nothing happened.  It began to kick off, however, when AM made a reapplication for homelessness assistance and was again found intentionally homeless on 30th May 2014.  A referral was again made to their children’s services, which (on 11 June 2014) recommended a children in need assessment, because of a potential history of domestic violence (which had become known by then) and the epilepsy suffered by one of the children.  An interview with the family was then held on 1st July, at which the (LBTH) social worker said she would return with an interpreter.  It was thought that AM’s wife was suffering from post-natal depression, certainly was not eating or sleeping well.

What I have left out of this story is that the AM family had been provided with temporary accommodation first of all in Haringey LBC and then in Havering LBC, where the family remained.  LBTH did not send the required notice to Havering, informing them that AM was living in their area (under s. 208, Housing Act 1996).  On 2nd July, a series of events are recounted by Cobb J as having occurred, which basically involved LBTH trying to evict the AM household.  But, and here was the rub, LBTH children’s services refused to conduct any further assessment; appear to have told Havering’s duty social worker “obviously misleading” information as to their involvement.  On the following day, both LBTH and Havering tell AM’s solicitors that they are closing the case/taking no further action; in Havering’s case, this was because “this is a clear case of attempting to dump responsibility for assessment and provision by transferring homeless clients out of the borough from which they originate”.  The basis for their refusal was that “As long as the family attend [LBTH’s children’s services] upon eviction they will have physical presence in that Borough …”.  Nice (slightly better than their other attempts to avoid assessment on the basis that the family were not “ordinarily resident” in Havering, which … erm … is not the relevant test).  Meanwhile, for the next period, AM is basically being sent back and forth between the authorities.

In the midst of all of this (and there is a lot more), the real hero is AM’s solicitor (unnamed, but the solicitors representing AM at the hearing were from Miles and Partners) who appears to have been sending out pre-action protocol letters left, right and centre (rightly), and issued proceedings when the local authority children were squabbling among themselves.

The actual judgment is premised on a principle of law that I guess one might contest (albeit one must bear in mind the underpinning principle of co-operation between authorities and the construction of s.17, Children Act so that it promotes the welfare and best interests of the child/ren in need).  At [35], Cobb J finds that an authority which starts an assessment (in this case under s.17), “… it is under a public law obligation in my judgment to act reasonably in deciding whether to complete it, where the legal obligation on that authority has changed (or is assessed to have changed). In such circumstances, the relevant local authorities in relation to whom the burden falls should liaise over who should complete the assessment, and how it should best be done, to avoid duplication of effort while ensuring that the child does not ‘fall between two stools’. Quite apart from this public law duty to act reasonably, there is much to be said in terms of practicality and urgency for the first (originating) authority completing the assessment“.

Havering’s argument that the children did not appear to be in need was given the short consideration it merited, in part by reference to their own policy practice and because of the information available to it – their attempt so to find was Wednesbury unreasonable.  Their argument that s.213A, Housing Act 1996 had changed the relevant principles of law (as expounded in R (Stewart) v LB Wandsworth, LB Lambeth, LB Hammersmith & Fulham [2001] EWHC Admin 709) was also rejected at [47] (not an uninteresting argument though, unlikely to be sufficient to enable them to appeal).  Their argument that the duty remained LBTH’s because AM and his family had returned for an assessment on 6th June 2014 was “misconceived”, in part because of the confusion in the Children Act obligations if they “… were deemed to hang on such a tenuous thread as a brief visit … to attend an appointment in the area of the originating authority (which … may have even been for a purpose unconnected with assessment)”.

As for LBTH – whose position throughout had been that the claim was “specious” – it did not get away with it either.  At [46], Cobb J makes clear their continuing obligation:

Even though there was no ongoing duty on LBTH to assess the family once it had left its area, it was nonetheless, in my judgment, an inexcusable failure of good social work practice to ‘wash its hands’ of the family in this way; continuity of social work involvement and practice best meets the obligations under statute and is indeed the most cost-efficient. While it is clear that by this time no statutory obligation fell on LBTH to assess the family, by reference to the public law principles outlined in [35] (and mentioned again at [42]) above, it was only reasonable that the authority should continue and complete its assessment, or at the very least offer to LB Havering that it should do so, if necessary on LB Havering’s behalf

Indeed, their failure was “significantly aggravated” inter alia by failing to notify Haringey under s.208 and failing to provide documentation for some time, as well as giving misleading information about their involvement with the family.

The penultimate substantive paragraph deserves to be quoted in full for the sheer anger in the words:

As I have earlier indicated, numerous judges before me have called on local authorities to co-operate in their discharge of functions in respect of the vulnerable and needy; it appears that these exhortations continue in some quarters at least to fall on deaf ears. Judicial encouragement to good practice is underpinned by statutory expectation (see generally section 11 of the CA 2004, and specifically in relation to the requirement for prompt notification: section 208 and section 213 HA 1996). Regrettably the financial implications on receiving authorities of accepting responsibility for those with needs prove to be a significant deterrent to demonstrable good practice. Statutory duties have not been designed, or interpreted, to operate in insulated silos, nor should they be discharged in this way. Even though local authorities have wide powers to act in the best interests of children (see the Localism Act 2011, and the section 11 of the CA 2004), they sometimes fail to do so. This is one such lamentable example, with the effect that the children were pushed from ‘pillar to post’ (see [33](xvi) above, and R(G) v Southwark at [28(3)]). Indeed, the strategy which each authority adopted on 2 July 2014 (rehearsed extensively at [14] above) to avoid responsibility for AM and his family was shameful.