FZW, R (on the application of) v Bristol City Council

Under the Children Act 1989, the specific accommodation duty in section 20 takes priority over the general section 17 duty where its criteria are met. A local authority cannot avoid looked-after and leaving-care consequences by labelling accommodation as section 17. Section 20 is not confined to lone-child cases. Accommodation with a family member may still attract the duty where the authority plays a central role. Authorities must ask an older child about the available pathways and give genuine weight to informed wishes. Where unlawful decision-making has deprived a person of care-leaver support, a remedial discretion may arise. In an exceptional case, serious unfairness may make treating the person as a former relevant child the sole justifiable outcome.

FZW, aged 17, and her slightly older sister became homeless after leaving an abusive brother. No person had parental responsibility for FZW. Bristol City Council provided support and accommodation under section 17 rather than section 20, seeking to keep the sisters together. It therefore did not treat FZW as looked after or provide section 23C support when she turned 18.

FZW sought judicial review on the basis that the accommodation had been mislabelled and, alternatively, that the Council had failed to ascertain her wishes and feelings or exercise a remedial discretion. The central issues were whether the section 20 duty arose despite the family arrangement and what consequences followed from the failure to consult her.

The claim succeeded on ground one. Ground two would also have succeeded in the alternative.

1. The court applied the seven-question approach in R (G) v Southwark London Borough Council [2009] UKHL 26. The claimant was a child in need within the Council’s area and appeared to require accommodation. The absence of a person with parental responsibility satisfied section 20(1)(a). It was circular to say that section 17 accommodation meant that she did not require accommodation under section 20.
2. Section 20 is not confined to lone-child cases. A fact-sensitive inquiry is required where a child is accommodated with a family member. The Council had played a central role in creating the accommodation arrangement. The claimant’s sister was also prevented from providing suitable care by her serious mental ill-health and the consequences of the Home Office’s immigration error. The section 20 duty therefore arose on or around 19 July 2024.
3. The Council had to ascertain the claimant’s wishes and feelings and give them due consideration. She was approaching adulthood and, if given an informed choice, would have selected the section 20 pathway because of the post-18 educational and practical support it provided. This reinforced the conclusion that the accommodation was provided under section 20 in substance.
4. The claimant was consequently a looked-after child for the purposes of sections 22 and 22A-C and a former relevant child for the purposes of section 23C. She was entitled to the benefits flowing from that status.
5. Alternatively, the failure to consult was process irrationality. Applying the remedial approach in R (GE (Eritrea)) v Secretary of State for the Home Department and Bedford Borough Council [2014] EWCA Civ 1490, the degree of unfairness and continuing present injustice would have made treating the claimant as a former relevant child the sole justifiable outcome.

The parties were invited to draw up a consequential order, including costs.