R (MN and KN) v London Borough of Hackney

This is a judicial review of a local authority decision dated 16 March 2012 refusing accommodation and support under section 17 of the Children Act 1989 to two children and their parents who were unlawfully present in the United Kingdom. The court held that a local authority's powers under section 17 are engaged only when the authority has positively assessed a child as being "in need"; here the social worker's Children Act assessment did not reach such a positive finding because the parents failed to provide sufficient information to substantiate their claim of imminent destitution. Accordingly Hackney had no power or duty under section 17 (or section 20) to provide assistance and its refusal was lawful.

The judgment summarises the statutory framework, including Schedule 3 to the Nationality, Immigration and Asylum Act 2002 which restricts support for persons in breach of immigration laws unless necessary to avoid a breach of Convention rights, and explains that where Schedule 3 applies local authorities must assess Articles 3 and 8 ECHR. Although the ECHR assessment in this case concluded no breach of Article 8 would arise from return to Jamaica, the court found that the ECHR assessment was flawed in failing adequately to consider the claimants' private-life ties to the UK and the impact of relocation on the autistic child; had Hackney relied on that assessment as determinative the decision would have been unlawful. Nevertheless, because Hackney had not found the children to be "in need" as at 16 March 2012, the claim for judicial review failed.

The claimants are two children (aged 3 and 13 at the time of the decision) and their parents, Jamaican nationals present in the UK without leave. The family applied for leave to remain in 2010 which was refused. In January–March 2012 the parents sought assistance from Hackney on the basis that they faced homelessness. Hackney commissioned a Children Act 1989 assessment and a separate ECHR assessment. The Children Act assessment concluded the children were not "in need"; the ECHR assessment concluded that refusal of support would not breach Articles 3 or 8 ECHR because the family's needs could be met in Jamaica or by assistance to return.

Nature of the claim: judicial review seeking a declaration that Hackney acted unlawfully in refusing accommodation and support under section 17 Children Act 1989; urgent interim relief had been granted by Lloyd-Jones J to provide temporary accommodation during proceedings.

Issues framed by the court:

• Threshold issue: whether Hackney had lawfully concluded the family were not destitute and therefore not "in need" so as to engage section 17 powers.
• If the family were "in need", whether Hackney lawfully assessed Convention rights (Articles 3 and 8) and could rely on funding return to Jamaica to avoid a breach, including whether it had properly assessed private-life interference, best interests of the children and compliance with the public sector equality duty (Equality Act 2010 s.149).
• Related legal questions included the effect of Schedule 3 to the 2002 Act and the relevance of case-law (notably Birmingham v Clue and R (KA) v Essex).

Court's reasoning: The judge read the two assessments together and, giving a fair reading appropriate to social-worker documents, concluded they were equivocal and did not amount to a positive local-authority determination that the children were "in need". The investigator had made reasonable enquiries, met the family four times and sought further particulars of the sources of support the family had relied upon during the previous ten years; the inability to reach a firm view derived from the parents' failure to provide that information. The court accepted that the local authority's assessment of need is an evaluative judgment for the authority, subject to judicial review on ordinary public-law grounds. The investigation was therefore sufficient and the decision not to find the children "in need" was not irrational.

On the hypothetical assumption that the family were "in need", the judge addressed the ECHR assessment. He explained the statutory interaction (Schedule 3) requiring local authorities to consider whether withholding support would cause a breach of Convention rights and whether return assistance could avoid that breach. The court rejected the broader legal proposition in R (KA) v Essex that a person refused leave to remain automatically acquires a Convention-linked right to be supported until a removal decision is taken and appealed; the judge considered that reasoning incorrect and contrary to Birmingham v Clue. Nevertheless, the judge found the ECHR assessment had not properly analysed the private-life dimension (particularly for the 13‑year‑old who had lived in the UK since age 2) nor adequately considered the likely effect of return on the autistic child given available medical opinion, and therefore would have been unlawful if treated as determinative of Article 8.

Disposition: the claim was dismissed because Hackney had not lawfully been required to provide section 17 support as it had not found the children to be "in need" on the material before it on 16 March 2012. The judgment also records guidance on how Hackney should proceed if it revisits the assessment.

The claim is dismissed. The court held that Hackney lawfully declined to provide assistance under section 17 because its assessments did not positively find the children to be "in need" as at 16 March 2012; the social worker's investigation was adequate and the decision not to find need was not irrational. The court further held that, although the ECHR assessment concluded return to Jamaica would not breach Articles 3 or 8, that assessment was flawed for failing properly to consider the claimants' private‑life ties (especially the 13‑year‑old) and the impact on the autistic child; had Hackney relied on that assessment to justify withholding support while the children were in fact "in need" the decision would have been unlawful.