G, Re Application for Judicial Review

Under Part III of the Children Act 1989, a local authority’s general duty to safeguard and promote a child’s welfare does not itself require it to provide accommodation or financial support for the child’s parent. Sections 17(3) and 17(6) confer powers, rather than duties, to support the family or provide assistance in kind or cash. The duty under section 20 is to accommodate the child, not necessarily the parent and child together. Section 23(6) does not impose a separate duty to house the parent. A lawful alternative may be to offer assistance enabling mother and child to return to a country where their needs can be met.

The mother, a Dutch national, entered the United Kingdom with her young child. She was ineligible for homelessness assistance, income support and housing benefit because she failed the relevant habitual residence test. The local authority initially provided accommodation and subsistence pending assessment, but concluded that the child’s needs would best be met if mother and child returned to Holland, where accommodation, benefits and family support were available.

Hooper J. quashed the authority’s decision to end its support, holding that the authority had to accommodate the child with the mother if the child was in need and it was in the child’s best interests to remain with her. The authority appealed. The central issues were whether Part III of the Children Act 1989 imposed a duty to house the mother with the child, whether accommodation for the child alone was lawful, and whether offering fares to Holland contravened paragraph 19 of Schedule 2.

Appeal allowed; application for judicial review dismissed. The court held that the local authority acted lawfully.

1. Sections 17(3) and 17(6) of the Children Act 1989 use permissive language. They confer powers to provide services for a child’s family and to give assistance in kind or, exceptionally, in cash. They impose no duty to provide accommodation or subsistence for the parent. The general duty in section 17(1) could lawfully be met by offering assistance for mother and child to return to Holland, where the authority reasonably considered the child’s needs would best be met. In the absence of a Wednesbury challenge, the choice fell within the authority’s lawful range of powers.

2. The court explained the approach in R v Northavon D.C. ex parte Smith [1994] 2 A.C. 402 and Attorney-General, ex rel. Tilley v Wandsworth L.B.C. [1981] 1 W.L.R. 854 as consistent with the distinction between statutory powers and duties. R v Hammersmith and Fulham LBC ex parte Damoah [1999] 2 C.C.L.R. 18 supported offering return assistance, but the present decision differed because alternatives remained available and the authority did not threaten to withdraw all assistance for the child.

3. The section 20 duty is to provide accommodation for the child. It does not require accommodation for the parent and child together. Offering accommodation to B alone was therefore lawful.

4. Sections 22 and 23 must be construed purposively. A child may be treated as provided with accommodation, and therefore as looked after, from the authority’s decision to place him for more than 24 hours in accommodation within section 23(2), even before the placement begins. Even assuming section 23 applied, section 23(6) did not require accommodation for the mother. Its duty to make arrangements enabling the child to live with the parent is subject to reasonable practicability and welfare. Those conditions were not met where the mother had no accommodation and living with her on the streets would harm the child’s welfare.

5. Paragraph 19 of Schedule 2 did not make the offer of fares unlawful. The offer was conditional on the mother’s approval. If rejected, no arrangement leading inexorably to the child living abroad was in place.

Lord Justice May and Lord Justice Rix agreed with Lord Justice Ward. The appeal was allowed with costs here and below, and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): [2001] EWCA Civ 540. Appeal allowed against Hooper J.’s order of 18 January 2001; the mother’s application for judicial review was dismissed.
2. Queen’s Bench Division: Hooper J. had granted judicial review and quashed the local authority’s decision. Permission to appeal was granted because of the potential public importance and financial implications.