N and N v London Borough of Newham & Anor

For the purposes of section 17 of the Children Act 1989, a child is within a local authority’s area when physically present there. Ordinary residence is not the test for the assessment duty. The duty is to take reasonable steps to assess a child who appears to be in need; section 17 does not impose a positive duty to provide accommodation or support.

Whether a child is in need involves an evaluative judgment by the local authority following factual investigation. A local authority may reasonably take account of undisclosed alternative support from family and friends where parents refuse information needed to investigate that possibility. Cooperation between authorities may be desirable where more than one authority is involved, but section 27 creates no duty to seek such cooperation.

The claimants, two children of Nigerian parents with unresolved immigration applications and no recourse to public funds, sought judicial review of decisions by the London Borough of Newham and Essex County Council concerning accommodation, financial support and assessments under section 17 of the Children Act 1989.

Essex provided one night’s accommodation and began an assessment before the family moved to London. Newham subsequently provided accommodation and support under an interim order. The claim challenged the later section 17 and Convention assessments, the authorities’ decisions not to provide continuing support, and Newham’s initial refusal to act because the family was said to be ordinarily resident in Essex.

1. Newham’s initial refusal to assess. Newham unlawfully treated ordinary residence as decisive. The relevant question was whether the children were physically present within its area. On that basis, its refusal to take action was Wednesbury unreasonable. The authority should probably have carried out a section 17 assessment.
2. No positive duty to provide services. Section 17 imposes a duty to assess, but no mandatory duty to provide accommodation or support following assessment. The likely outcome of a proper assessment therefore could not itself establish a breach of a duty to provide services. Any issue concerning Newham’s failure to provide support immediately became academic after the interim order and subsequent assessments.
3. Assessment of need. Whether children are in need is an evaluative judgment for the local authority, subject to judicial review. Newham was entitled to consider whether the parents could obtain accommodation or financial assistance from family and friends. The parents’ refusal to provide contact details prevented a fuller investigation. The conclusion that the children were not in need was not irrational.
4. Convention assessment. Under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, the authority had to consider whether support was necessary to avoid a breach of Convention rights. The reasoning in R (on the application of Clue) v Birmingham City Council [2011] WLR 99 was applied. Once the immigration applications were to be reconsidered, return to Nigeria was academic. Since the authority had concluded that alternative support was available, it was unnecessary to consider the consequences of destitution.
5. Essex’s conduct. Essex had assessed the children under section 17 and its assessment was neither irrational nor unlawful. Its failure to carry out a separate Convention assessment was also lawful, given the family’s brief presence in Essex and Newham’s ongoing assessments. Cooperation between the authorities would have been desirable, but neither authority was under a duty to seek it.
6. The claims for judicial review failed.

The judgment is a first-instance decision on a claim for judicial review. The claimants received interim relief from Lindblom J on 23 December 2011, and permission to apply for judicial review was granted on 27 February 2012. Permission to amend the grounds was granted on 22 January 2013.