A And B (Minors: placement, faith)

This judicial review concerned a local authority's decision to offer respite accommodation at a non‑orthodox residential home (Birtenshaw) rather than at an orthodox Jewish home (Bayis Sheli) for two brothers with significant disabilities. The court considered the decision against the statutory framework of Part III Children Act 1989 (in particular ss.17 and 20 and the placement duties in s.22/C), and against Articles 8, 9 and 14 ECHR and the Equality Act 2010 (ss.19 and 29).

The judge held that judicial review challenges to decisions under s.20 can only succeed on conventional public law grounds (for example irrationality) and that the ECHR issues require a proportionality assessment of any interference with the right to manifest religion. On the facts, the proposed 12‑week assessment placement of A at Birtenshaw (including Sabbaths and religious festivals) would, absent satisfactory provision for a mashgiach and festival arrangements, substantially interfere with A’s ability to manifest his orthodox Jewish faith and so breached Articles 8 and 9; that decision was therefore unlawful. By contrast, the defendant’s offer for B of fortnightly one‑night respite at Birtenshaw did not amount to an unlawful interference and was not irrational. The claim therefore succeeded for A and failed for B.

This case concerned two brothers (A, aged 15, and B, aged 11) from an ultra‑orthodox Haredi family who require high levels of supervision and support. The local authority proposed respite/assessment placements at Birtenshaw, a local residential specialist provider, while the family sought placement at Bayis Sheli, an orthodox Jewish residential home, because of strict kashrus (dietary) and Sabbath/festival observance requirements. The claimants sought judicial review of the defendant’s decisions and argued breaches of Articles 8, 9 and 14 ECHR, indirect discrimination under the Equality Act 2010 (ss.19 and 29), and public law irrationality including unlawful failure to accommodate under s.20(1)(c) Children Act 1989.

Nature of the claim / relief sought:

• Declaration and/or relief by way of judicial review that the defendant’s placement decisions were unlawful, irrational or incompatible with the claimants’ Convention rights and/or discrimination law; an order that appropriate culturally and religiously compliant accommodation be provided (in particular at Bayis Sheli).

Issues framed by the court:

• Whether the defendant’s decisions were public law unlawful or irrational in the exercise of powers/duties under Part III CA 1989 (including ss.17, 20 and s.22 duties in relation to looked after children).
• Whether the decisions interfered with the claimants’ rights under Articles 8 and 9 ECHR and, if so, whether such interference was justified as proportionate.
• Whether there was unlawful discrimination contrary to Article 14 ECHR and the Equality Act 2010 (notably ss.19 and 29).

Court’s reasoning and conclusion (concise):

• The court reiterated that decisions to provide accommodation under s.20 are amenable to judicial review only on conventional public law grounds and that s.17 duties are of a general nature (citing G v Barnet). The court must still conduct a proportionality assessment where Convention rights are engaged.
• Evidence (including an independent social worker report) indicated that A lacked the capacity and insight to perform the kashrus and Sabbath requirements reliably without an orthodox supervisor (mashgiach) attending Friday evening and Saturday lunchtime and for festivals (notably Passover). Birtenshaw was unwilling to permit extended attendance of non‑staff orthodox adults for reasons connected to the home's ethos and the welfare of other resident children.
• Placing A at Birtenshaw for a 12‑week assessment, including Sabbaths and festivals, would substantially interfere with his ability to manifest his religion. The interference was not justified as necessary or proportionate because alternatives (placement at Bayis Sheli or different support arrangements) would enable religious observance without the same restrictions. Accordingly that decision breached Articles 8 and 9.
• By contrast, the proposal for B of fortnightly one‑night respite at Birtenshaw did not produce an unlawful or disproportionate interference with his Convention rights and was not irrational; the claim in relation to B therefore failed.

The court allowed the claim in part (in favour of A) and dismissed it in part (in relation to B), and made further observations intended to assist the parties going forward regarding assessment of competing welfare and religious considerations.

First instance judgment: the claim was allowed in part. The court found that the decision to offer A a 12‑week assessment placement at Birtenshaw was unlawful and incompatible with his rights under Articles 8 and 9 ECHR because, on the evidence (notably the ISW report), the proposed arrangements would not permit A to manifest his orthodox Jewish faith (kashrus, Sabbath and festivals) unless a mashgiach or equivalent orthodox supervision attended in ways the provider would not allow; that interference was not justified as proportionate. The defendant’s proposal for B of fortnightly overnight respite at Birtenshaw was lawful and not public law unreasonable, so that claim failed.