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Primary considerations

By Dave

In Mohamoud v RB Kensington and Chelsea and Saleem v Wandsworth LBC [2015] EWCA Civ 780, the Court of Appeal were faced with the difficult argument about the interaction between section 11, Children Act 2004 and possession proceedings brought by a local authority against unsuccessful applicants for homelessness assistance.  In Huzrat v Wandsworth LBC [2013] EWCA Civ 1865, the Court had previously found that there was no room for the use of section 11 to gloss the clear questions which a local authority must ask itself to determine whether an applicant is intentionally homeless, but that is very different from the question in Mohamoud.  After all, mandatory possession proceedings have clear consequences.

Section 11 provides that local authorities

(2) … must make arrangements for ensuring that—

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.

(3) In the case of a local authority in England, the reference in subsection (2) to functions of the authority does not include functions to which section 175 of the Education Act 2002 (c. 32) applies.

(4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.

The derivation of this section is accepted as being (“in spirit, if not the precise language”) Article 3, UN Convention on the Rights of the Child, which provides that the best interests of children are “a primary consideration” in all actions concerning them.  In ZH (Tanzania) [2011] UKSC 4, Baroness Hale said, [33], “This means that they must be considered first.  They can, of course, be outweighed by the cumulative effect of other considerations”; Lord Kerr said, [46], “… in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result”.

In Castle v Commissioner of Police [2011] EWHC (Admin) 2317, the Divisional Court nuanced this approach by saying that the impact of the section 11 duty would “depend to a significant degree upon the function being performed and the circumstances in which it is being performed”.  Those were the questions for the Court of Appeal in Mohamoud.  Sharp LJ answered them in favour of the authority.  What I found interesting about the judgment was the way in which the major advances in human rights law and possession proceedings were deployed not in favour of the children, but effectively against them (which kind of ties in with Costas Douzinas’ brilliant, The End of Human Rights) – in essence, Sharp LJ said that it was difficult to see what section 11 adds to the Article 8 analysis.  And, in any event, children were already expressly catered for in the terms of the homelessness provisions.

The question of whether section 11 offers a free-standing duty is left hanging in the judgment, because, following Castle, it was not open to the Court: “… the duty cannot be detached from the statutory functions it is designed to secure” ([63]).  The other argument deployed by the appellants was that the local authorities failed to make appropriate arrangements to have regard to the statutory need when exercising their homelessness assistance functions – that they were under a positive duty to assess need prior to serving the notice to quit.  Lady Justice Sharp, following the lead of Castle, dismissed that argument on the basis that it would be wrong for section 11 to change “the nature or scope of the functions to which it relates”.  Further, at [68], any such assessment

… would be extraordinarily burdensome in terms of cost and resources and – in the overwhelming number of cases – simply futile. As outlined above, the law already caters for the position of children, it allows for the assessment of proportionality at various stages, it has built into it various periods when any particular facts can be raised which might (in the most exceptional case) bear on the proportionality of an eviction, and mandate a temporary halt of the process, and the legislation, together with the procedural protections available to protect the article 8 rights engaged, provide for such matters to be independently assessed by a court. Hard pressed social workers would be diverted from their vital child protection work in relation to children in need as defined by the legislation, to conduct thousands of child assessments on the off chance that there were exceptional facts, of which the local authority which had already conducted a detailed review of the parent’s circumstances was, as yet, unaware, and the parent did not think to raise with the local authority him or herself. If the appellants’ argument are correct, then one child might be the subject of any number of such assessments (presumably these would then be required further back into the process). There is moreover an existing duty on the part of local authorities to conduct a Children Act assessment in respect of any child in need, whose parent is likely to lose their accommodation; and local housing authorities and children’s services/departments are under a duty to co-operate in any event: see section 10 of the 2004 Act and section 27 of the 1989 Act.

My suspicion is that we may not have seen the last of this case.  It may not be the best one to pursue further, though, as both applicants had not sought a review of the homelessness decision in time.  And, as Sharp LJ said, with a final flourish ([70]), even if there was such a free-standing duty, the facts did not show any basis for interfering with the possession orders as there was no link between the order and the failure to conduct an assessment.



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