BC, R. (on the application of)

Under Children Act 1989, physical presence is both necessary and sufficient to place a child within a local authority’s area for the purposes of section 17. A local authority must assess the child’s needs on that basis. It may consider accommodation or support available elsewhere, but it must not treat the child’s previous area as the responsible authority or require a return there as a substitute for assessment.

The duty to make proper and sufficiently diligent enquiries remains with the local authority. An applicant should provide relevant information, but evidential gaps cannot replace investigation and fair opportunity to respond. A material territorial error which affects the enquiries and reasoning will justify quashing the decision where the court cannot be satisfied that the outcome would highly likely have been substantially the same.

BC, an overstayer with no recourse to public funds, sought accommodation and support from Birmingham City Council for herself and her six-year-old son, NM. NM had recently moved from London to Birmingham and was living there when the Council assessed that he was not a child in need under section 17 of the Children Act 1989.

The Council considered that support should instead be sought from Bromley, where the family had previously lived and where NM remained registered at school. BC sought judicial review, alleging that Birmingham had misunderstood its territorial responsibility and had failed to make sufficient enquiries about the family’s accommodation and support. The central issues were whether NM was within Birmingham’s area and whether the assessment was lawful.

1. Permission and relief. Permission was granted. The Council’s decision not to treat NM as a child in need was quashed.
2. Territorial responsibility. Section 17 of the Children Act 1989 is engaged by the child’s physical presence within the local authority’s area. That presence need not be supported by previous residence, schooling, registration or other local connections. A merely trifling or transient presence may fall outside the statutory scheme, but NM had been living in Birmingham for several weeks and plainly fell within the area.
3. Assessment of need. Birmingham could properly consider whether accommodation or support remained available from family or friends in Bromley. It could not, however, approach the assessment on the basis that NM should return to Bromley and seek support there. The Council’s reasoning treated Bromley as the responsible authority and thereby applied the wrong legal approach.
4. Enquiries and evidence. The parent was expected to provide information relevant to destitution and previous sources of support. That did not transfer the statutory duty of enquiry to the parent. The Council needed to investigate the apparent conflict between TG’s assurance that accommodation remained available and the evidence that BC and NM had left; the suitability and capacity of TG’s accommodation; and the reasons why previous support had ended. Any adverse inference from evidential gaps also required fairness.
5. Materiality. Under section 31(2A) of the Senior Courts Act 1981, relief could be refused only if it appeared highly likely that the outcome would not have been substantially different. The territorial error was central to the assessment and had infected the enquiries. That test was not met.
6. An application for leave to remain was not an adequate alternative remedy because it would not address NM’s immediate needs.

Not stated in the judgment. This was a rolled-up judicial review hearing at first instance.