Twomey, R (on the application of) v Calderdale Metropolitan Borough Council

A local authority’s duty to consider a child’s wishes regarding accommodation does not ordinarily require it to comply with them. The authority must ascertain the wishes so far as reasonably practicable and consistent with the child’s welfare, and give them due consideration having regard to age and understanding.

Where a child is aged 16 or over and agrees to accommodation generally, parental objection does not prevent accommodation under section 20 of the Children Act 1989. If the authority’s preferred placement is suitable but the child absolutely refuses it, the authority may nevertheless be required to consider the child’s preferred suitable placement. A proposed assessment or trial placement may be pursued where the child’s objection may reasonably be overcome.

Louise Twomey, a disabled child approaching 18, required residential accommodation and personal-development support. Calderdale Metropolitan Borough Council accepted that accommodation was required but preferred Insight, whereas Louise and her parents sought placement at Hesley College. Louise refused to attend Insight and maintained that she wished to go to Hesley.

The claim concerned whether Calderdale’s present refusal to place Louise at Hesley was unlawful under the Children Act 1989, particularly the duties concerning accommodation, suitability and consideration of the child’s wishes. The central issue was whether those duties required the authority to comply with Louise’s expressed preference.

1. Calderdale was not presently in breach of its statutory duties. Its refusal to place Louise at Hesley was therefore not unlawful. The case was adjourned for further consideration because the situation could not continue indefinitely.

2. Under sections 17, 20 and 23(8) of the Children Act 1989, Calderdale owed Louise duties to promote her welfare, provide accommodation, and secure accommodation that was not unsuitable to her particular needs.

3. Section 20(6) required Calderdale, so far as reasonably practicable and consistent with Louise’s welfare, to ascertain her wishes and give due consideration to them having regard to her age and understanding. That duty did not itself require the authority to follow her preference.

4. If two establishments were equally appropriate, a child capable of making a sensible choice would normally be placed in the establishment preferred by the child. If the authority preferred one suitable establishment but the child absolutely refused it, the authority might have no choice but to use the child’s preferred suitable establishment.

5. Section 20(11) applied because Louise agreed to accommodation under section 20 generally, although she objected to the particular proposals. Her parents therefore could not prevent accommodation being provided or remove her from accommodation provided by the authority.

6. Louise’s objection to Insight did not presently prevent Calderdale from pursuing an assessment or trial placement. Her inability to make decisions in her own interests appeared connected with her disability, and Calderdale’s view that encouragement and explanation might overcome the objection was not irrational. It had not been shown that securing her agreement to a trial placement was not reasonably practicable.

7. The absence of on-site educational facilities at Insight did not alter the conclusion. Education included personal development and learning to act appropriately with others, and the evidence indicated that Insight offered the better prospect of meeting those needs.