F v London Borough of Barking and Dagenham

A court should avoid making a conditional and uncertain mandatory order where the underlying family-residence question remains for the Family Court. Where statutory accommodation is said to be necessary to protect Article 8 family-life rights, sufficient certainty is required about the circumstances giving rise to that necessity. Where Family Court proceedings and a supervision order are already active, the Family Court may be the appropriate forum to determine whether a separate Child in Need assessment is required. The proceedings may therefore be transferred so that the child’s interests can be considered as a whole.

F, who was homeless and had no leave to remain in the United Kingdom or recourse to public funds, sought judicial review of the defendant local authority’s refusal to provide accommodation and its failure to carry out a separate Child in Need assessment concerning her son J.

Permission was granted on the questions whether accommodation was necessary to secure F’s and J’s Article 8 rights and whether a Child in Need assessment was required. The Family Court was already considering J’s long-term residence and contact arrangements, with an interim supervision order in place. F sought mandatory orders requiring accommodation and an assessment.

1. The court declined to make the mandatory accommodation order. The proposed order depended on a future Family Court decision about J’s residence and was therefore conditional and uncertain.

2. The court recognised an arguable route by which Children Act 1989 s 17 might be engaged through paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, if necessary to avoid a breach of Convention rights. It did not determine the final merits of that argument.

3. The court also declined to determine whether a separate Child in Need assessment was required. The Family Court was best placed to decide that issue in light of the existing assessments, reports and interim supervision order.

4. The claim was transferred to a High Court judge nominated to sit in the Family Division. A case-management hearing was directed to take place before the listed Family Court hearing, enabling the issues to be considered together and addressing the absence of J’s father from the judicial-review claim.

Permission and interim relief were initially refused by Mr Justice Cranston on 22 July 2015. On renewal, Mrs Justice Nicola Davies granted permission on 11 August 2015, limited to the Article 8 accommodation issue and the Child in Need assessment issue. The present court did not finally determine the merits and transferred the claim to a High Court judge nominated to sit in the Family Division.