W, R (on the application of) v Oxfordshire County Council

A local authority may discharge its duties under Children Act 1989, section 17, by funding a family’s return to its home country, but only where that is an appropriate case and the assessment is lawful and evidence-based. A decision about children’s future care cannot rest on assumptions about relatives’ willingness or suitability without proper inquiry. Nor may an authority rely on generalised assumptions about extended-family support or prevailing cultural practices. The authority must address the family’s actual accommodation, support and welfare needs, including the children’s best interests and relevant views. A materially flawed assessment or speculative evidential basis vitiates the decision.

The claimant and her two daughters, one of whom had significant mental-health problems, had left an abusive household and were living in accommodation provided by Oxfordshire County Council. The Council assessed its duties under section 17 of the Children Act 1989, section 21 of the National Assistance Act 1948 and section 47 of the National Health Service and Community Care Act 1990.

The Council concluded that the family’s needs would best be met by returning to Jamaica, with the daughters returning to their father and paternal grandparents, or alternatively living with the claimant and her adult daughter. The claimant sought judicial review, challenging the assessment, the proposed care arrangements and the evidential basis for concluding that support and accommodation would be available in Jamaica.

The application for judicial review succeeded. The decision that the claimant and her daughters’ best interests would be furthered by the Council paying for their return to Jamaica was quashed and remitted for reconsideration.

1. Assessment of the children’s best interests. The Council’s conclusion that the daughters should return to the care of their father and grandparents was procedurally flawed. There had been no proper inquiry of the father or grandparents about their willingness and suitability to provide care. The children’s views had been ascertained only cursorily. The assessment also failed adequately to address the present close relationship between the claimant and her daughters and the claimant’s earlier concerns about the father’s care of one daughter. These defects were sufficient to vitiate the decision.
2. Return to Jamaica. The court accepted that, in an appropriate case, a local authority could discharge its section 17 responsibility by financing a family’s return to its home country, as illustrated by R(G) v Barnet LBC [2001] EWCA Civ 540 and R (Ali, Mohammed and Mohamed) v Birmingham CC and the Secretary of State for Health [2002] EWHC 1511 Admin. That principle was fact-sensitive. Here, the Council’s case depended on speculative assumptions about extended-family support and a short-term arrangement with the claimant’s adult daughter. There was no proper inquiry into suitable accommodation for the family if the daughters remained with the claimant, and Jamaica lacked the social and welfare benefits present in the earlier cases.
3. Other grounds. Alleged factual errors and adverse inferences, taken alone, would not have vitiated the decision. The failure to obtain fuller best-interests information from relevant health professionals provided additional support for the successful challenge. It was unnecessary to determine the Article 8 submission.

The Council was ordered to continue providing appropriate accommodation until 21 days after communicating any fresh decision. Costs followed the event, subject to detailed assessment by the Community Legal Services.

The judgment was a first-instance judicial review decision. The claimant had obtained an interim order requiring accommodation and permission to apply for judicial review. The challenged decision was quashed and the matter was remitted to the Council for reconsideration.