London Borough of Brent v S

In deciding whether to restrain a young person from travelling, the court must assess his best interests in the light of all relevant circumstances. The assessment should include his wishes, the potential benefits of the journey, risks to his safety and welfare, and any immigration consequences. A local authority’s safeguarding duty under the Children Act 1989 does not give it an unrestricted power to prevent a capable young person from acting on strongly held personal and family interests. Risks may be justified only where they are outweighed by the benefits of restraint. Cultural background and family responsibilities must be considered without imposing a purely Euro-centric perspective. On the facts, the injunction preventing travel was discharged.

The local authority applied in relation to S, a 17-year-old Afghan national accommodated as an unaccompanied minor, who wished to travel to Pakistan to trace his missing mother and siblings. The authority considered the journey unsafe because of violence in Pakistan and possible immigration difficulties on S’s return. Interim orders were made requiring surrender of his passport and preventing him from leaving England and Wales.

At the hearing, the central issue was whether continuing the injunction was in S’s best interests, having regard to the risks of travel, the possible effect on his immigration position, his wishes, and the profound personal consequences of losing the opportunity to search for his family before reaching adulthood.

1. The injunction was discharged. The court permitted S’s solicitor to return his passport and lifted the prohibition on S leaving England and Wales.
2. Under section 17(1) of the Children Act 1989, the local authority had duties to safeguard and promote S’s welfare and, consistently with that duty, promote his upbringing by his family. The court’s welfare assessment was not identical to the statutory duty imposed on the local authority. The welfare checklist in section 1(3) nevertheless assisted by highlighting S’s wishes and the harm he might suffer.
3. The court adopted the guidance in Re K; A Local Authority v N (2005) EWHC 2956. Concern to protect vulnerable children must not lead to inappropriate or unjust interference merely because their cultural beliefs and family practices differ from those familiar to a Euro-centric observer.
4. The court found that the risks of travel to Pakistan were real but small. They had to be weighed against the potentially profound benefit of discovering what had happened to S’s family, his strong and long-held wish to travel, the limited opportunity available before he turned 18, and the likely emotional harm if he was prevented from trying.
5. The possible immigration consequences were relevant but were not considered significant enough, in the circumstances, to justify restraint. The risk that finding his family might affect his return to the United Kingdom was substantially reduced if the family were located in Pakistan. Even an unsuccessful journey could improve S’s position compared with being denied the opportunity altogether.
6. The court also supported the local authority’s decision to seek the court’s assistance in a difficult and anxious case. Local authorities should not be discouraged from making appropriate applications of that kind.

The judgment records that interim orders were initially granted by Mr Iain Goldrein QC, sitting as a Deputy High Court Judge, and that further directions were made by His Honour Judge Altman, sitting as a Deputy High Court Judge. This court discharged the order preventing S from leaving England and Wales.