MN & Anor v London Borough of Hackney

A local authority’s assessment of whether a child is “in need” under Children Act 1989, section 17, involves an evaluative judgment for the authority, subject to ordinary judicial review principles. The court will not substitute its own assessment where the investigation was reasonable and the conclusion rational.

For a family unlawfully present in the United Kingdom, Schedule 3 to the Nationality, Immigration and Asylum Act 2002 restricts support under section 17 unless it is necessary to avoid a breach of Convention rights. A local authority must assess whether return would interfere with article 8 private life, including established social and cultural ties and relevant health consequences. A potential future appeal against removal does not itself create an immediate right to accommodation and support.

The claimants, two Jamaican children, sought judicial review of Hackney’s refusal to provide accommodation and support for the family under section 17 of the Children Act 1989. The family were unlawfully present in the United Kingdom and had applied unsuccessfully for leave to remain. Hackney’s assessments concluded that the children were not established to be “in need” and that refusal of support would not breach articles 3 or 8 of the Convention.

The central issues were whether Hackney had lawfully assessed destitution; whether section 17 powers were engaged; whether the family’s possible return to Jamaica required support pending a future removal decision and appeal; and whether the assessments properly addressed private life, best interests and disability.

1. Disposition. The claim for judicial review was dismissed. Hackney had reasonably investigated the family’s circumstances but had not concluded that the children were “in need”. Its section 17 powers were therefore not engaged. The same conclusion applied to section 20.
2. Assessment under section 17. Whether a child is “in need” is an evaluative judgment for the local authority, not an objectively determinable question for the court. The authority must take reasonable steps to investigate the position. Here, the social worker was entitled to take account of the family’s decade without public support, request information about previous sources of assistance, and draw adverse or refuse to draw favourable inferences from the parents’ failure to provide it. The conclusion was not irrational.
3. Unlawfully present families. Schedule 3 to the Nationality, Immigration and Asylum Act 2002 made the family prima facie ineligible for section 17 support, subject to the Convention-rights exception. If the family were destitute, Hackney would have to assess whether return to Jamaica would breach articles 3 or 8 and whether financial assistance for return under section 2 of the Local Government Act 2000 was a cheaper means of avoiding such a breach.
4. Article 8. The assessment had to address both stages of article 8. It was legally wrong to treat a potential future appeal against removal as an existing right requiring support until removal directions were made and appealed. The court declined to follow R (KA) v Essex City Council [2013] EWHC 43 (Admin). However, the assessment was materially deficient in failing properly to evaluate the children’s private-life ties to the United Kingdom, particularly KN’s long residence, and the likely effect of removal on MN’s autism and mental health.
5. Further guidance. If Hackney later found the family destitute, it would need to reconsider the article 8 assessment. At the proportionality stage, the children’s best interests would be a primary consideration, and section 149 of the Equality Act 2010 would require due regard to MN’s disability-related needs.