Liverpool City Council, R (on the application of) v London Borough of Hillingdon & Anor

A local authority cannot discharge its duty to accommodate a child in need merely by ascertaining that the child wishes to live elsewhere and assisting the child to move there. Under section 20(6) of the Children Act 1989, the child’s wishes receive due consideration but are not automatically decisive.

The authority must make an overall judgment which assesses the child’s welfare needs, age and understanding, and the suitability and location of the proposed accommodation. A mature child’s informed and reasoned wishes may determine the outcome, but an assessment of needs remains essential. A complete failure to perform the section 20 duty leaves the authority under a continuing obligation. That differs from a defective performance, whose consequences depend upon any public law challenge and the relief granted.

An asylum seeker whose age was disputed was detained within the London Borough of Hillingdon. An immigration judge had accepted medical evidence that he was 15, although Liverpool City Council had previously assessed him as an adult. Hillingdon provided temporary accommodation but did not reassess his age or accept responsibility under section 20 of the Children Act 1989.

After learning that he wished to return to Liverpool, Hillingdon escorted him there. Liverpool accommodated him while maintaining that he was an adult and that it had no statutory responsibility. Liverpool sought judicial review.

A deputy High Court judge held that Hillingdon’s responsibility ceased when the young person returned to Liverpool and that Liverpool would in any event have a concurrent duty. Liverpool appealed. The principal issue was whether Hillingdon had discharged its section 20(1) duty by ascertaining and facilitating the young person’s wish to live in Liverpool.

1. Appeal allowed. Hillingdon had not discharged its duty under section 20 of the Children Act 1989. Its responsibility did not cease merely because it escorted the young person to Liverpool in accordance with his expressed wishes. Declarations and a mandatory order were granted requiring Hillingdon to reassess his age and accommodate him while doing so.

2. Section 20(6) does not make a child’s wishes and feelings determinative. The authority must ascertain and give them due consideration, so far as reasonably practicable and consistent with the child’s welfare. That exercise must account for the child’s age and understanding. The wishes form part of the authority’s overall judgment about welfare needs and the type and location of suitable accommodation.

3. A mature, articulate and intelligent child’s strong and reasoned wishes may be decisive. An assessment of needs is nevertheless always required. Without it, the authority cannot decide whether acceding to those wishes is consistent with the child’s welfare. Hillingdon had not assessed the young person’s welfare needs, age, understanding or the suitability of any accommodation in Liverpool. Its reliance upon his wish to return was therefore insufficient.

4. There is a distinction between complete non-performance of a statutory duty and defective performance susceptible to challenge on ordinary public law grounds. Complete non-performance leaves the authority subject to a continuing obligation. Defective performance amounts to a decision whose consequences depend upon whether it is challenged and what discretionary relief the court grants. Hillingdon’s words and conduct demonstrated complete non-performance: it did not reassess age and consistently denied that it owed a section 20 duty.

5. Hillingdon conceded that, if its duty remained undischarged, Liverpool owed no concurrent duty. The court therefore did not determine whether two authorities can ever owe concurrent section 20 duties. Rix LJ agreed in the result but reserved his position on that question. He considered that the statutory priority was the child’s interests and that an earlier authority’s undischarged duty might not invariably exclude a later authority’s duty.

1. Court of Appeal (Civil Division): The appeal was allowed. The court held that Hillingdon had not discharged its section 20 duty, granted the requested declarations and ordered it to reassess the young person’s age and provide accommodation while doing so.

2. High Court, Administrative Court: A deputy judge held that Hillingdon’s responsibility ceased when the young person returned to Liverpool in accordance with his wishes. The judge further held that Liverpool would also owe a duty if Hillingdon’s duty continued. That decision was reversed.