Judgments - Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant)

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    63.  In the circumstances the appropriate course is for these judicial review proceedings to be remitted to the Administrative Court for further hearing in the light of the judgments of the House. Before the proceedings are restored for further hearing Lambeth council will no doubt reconsider its position. I would allow this appeal accordingly.

LORD STEYN

My Lords,

    64.  I have had the privilege of reading the opinion of Lord Nicholls of Birkenhead. For the reasons he has given I would also make the orders which he proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

    65.  The facts of these cases have been fully set out by my noble and learned friend Lord Nicholls of Birkenhead, whose speech I have had the advantage of reading in draft. I gratefully adopt his account of them, and I proceed at once to the important and difficult issues of law which they have raised.

Background

    66.  The purpose of the Children Act 1989, as its long title indicates, was to reform the law relating to children. The aim was to provide a clear and consistent code for the whole area of child law. Reforms had been made hitherto in a piecemeal way, resulting in a complex series of provisions in different statutes some of which were contradictory. The framework which had been created had been shown by the DHSS Review of Child Care Law (1985) to be inadequate. Major changes to the law were recommended as a result of this review, and many of them were accepted by the Government: The Law on Child Care and Family Services (1987) (Cm 62). Among the issues that required attention were the role of local authorities in supporting families who were in difficulty and the role of parents when their children were being looked after by a local authority. The control of social work decision-taking was another area of concern, following the Report of the Inquiry into child abuse in Cleveland 1987 (Cm 412). But that is not the area of the law with which these three cases are concerned. We are concerned here with local authority support for children and their families. The reforms in this area of child law are set out in Part III of the Act.

    67.  The theme to which the provisions in Part III of the Act are devoted is identified at the very outset in section 17(1). It provides that it shall be the general duty of every local authority, in addition to the other duties imposed on them by that Part of the Act:

    "(a) to safeguard and promote the welfare of children within their area who are in need; and

    (b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

    by providing a range and level of services appropriate to those children's needs."

There then follow, in the remainder of Part III and in Schedule 2, provisions dealing with investigations and assessments of needs of children and duties to provide various particular kinds of support services.

    68.  Section 17(1)(b) emphasises the importance which is to be attached to the promotion of the upbringing of children in need by their families. As Judith Masson (now Professor Masson, of Warwick University) noted in her general note on section 17 in Current Law Statutes, this subsection represented a fundamental shift in the provision of social services where children were concerned. It laid down a new statutory framework for all preventive work in child care. It recognised that, while local authority care may have a positive contribution to make in this field, family life too makes a valuable contribution to a child's welfare. John Murphy, "Children in need: the limits of local authority accountability" (2003) 23 Legal Studies 103, 104 makes the same point:

    "Since Part III of the Children Act 1989 is a central plank in that legislation's endeavour to reduce state intervention in the essentially private domain in family life, the duties it contains are designed to help to keep the use of compulsory measures under subsequent Parts of the Act to a minimum by providing support services that avoid the need to have recourse to those compulsory measures."

As John Murphy observes in his paper at p 104, note 5, Part III was intended to reflect the obligation in article 18(2) of the United Nations Convention on the Rights of the Child which was adopted on 20 November 1989 and entered into force on 2 September 1990 to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ensure the development of institutions, facilities and services for the care of children: see The United Kingdom's First Report to the UN Committee on the Rights of the Child (HMSO, 1994), p 2.

    69.  Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees to everyone respect for his private and family life. Article 8(2) provides:

    "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and the placement of children in foster homes or other accommodation which they do not share with their parents constitutes an interference with the right protected by article 8: Kutzner v Germany (2002) 35 EHRR 653, 664, paras 58-59. But the contracting states have a wide margin of appreciation to determine the necessity of any measures taken in pursuit of the legitimate aim of protecting the child's health and rights, which may vary according to the nature of the issues and interests at stake: KA v Finland, Application No 27751/95 (unreported) 14 January 2003. It has not been suggested that Part III of the 1989 Act fails, in principle, to meet the requirements of article 8(2). The general duties set out in section 17(1) would seem to be plainly in keeping with these requirements. The question whether decisions taken under Part III are compatible with the child's article 8 Convention rights must, of course, depend on the facts of each case.

    70.  The range of support services that may be provided under Part III and Schedule 2 is very wide. Among these services is the provision of accommodation, and it is the refusal of the respondents to provide accommodation which has given rise to these appeals. But it must be noted, as part of the background, that the functions which a local social services authority performs under the 1989 Act are different from those performed by the local education authority and the local housing authority. All the social services functions of a local authority under the 1989 Act are vested in the social services committee established under section 2 of the Local Authority Social Services Act 1970: see Schedule 1 to that Act, as amended by paragraph 26 of Schedule 13 to the 1989 Act. Responsibility for the provision of support for children and their families was placed on county councils in those areas which are not served by metropolitan districts, the London boroughs and unitary authorities created under Part II of the Local Government Act 1992: see the definition of "local authority" in section 105(1) of the 1989 Act.

    71.  Different authorities are involved in the provision of housing accommodation in the areas not served by metropolitan districts, London boroughs and the unitary authorities. Section 1 of the Housing Act 1985 provides that in these areas the district council, not the county council, is the local housing authority. Section 8(1) of the 1985 Act provides that it is the duty of every local housing authority to consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation, and section 21 of that Act vests the general management, regulation and control of a local authority's houses in the local housing authority. Among the duties allocated to the local housing authority are the allocation of housing accommodation and duties with regard to the housing of the homeless: see Parts VI and VII of Housing Act 1996. The social services and housing functions are both vested in the metropolitan districts, London boroughs and the unitary authorities, but different officials and different committees are involved and separate accounts must be kept for each function. The statutory duties and functions of the local social services authority in the provision of child care are thus separated from those of the local housing authority which is responsible for the provision of housing accommodation in the area.

The section 17(1) issue

    72.  The three cases which are before your Lordships in these appeals are all concerned with children who are in need, and they are all concerned with children who at the date of the relevant decisions were still living with their parents in the same household. The general duties which are set out in section 17(1) are therefore directly in point in each case. In A's case the family consists of three children, two of whom are in need because they are disabled children: section 17(10)(c). They are disabled because they suffer from autism. In the cases of G and W, the children were in need because the parents with whom they were living (who were their mothers only, in both cases) were homeless. Their health or development was likely to be significantly impaired without the provision of services by the local authority under Part III of the Act: section 17(10)(b). In all three cases the children were, at the relevant date, living with their mothers in the same family.

    73.  There is another characteristic which these three cases shared. It was the lack of residential accommodation which was suited to the needs of the children if they were to remain within the family unit without the risk of significant impairment to their welfare. Section 17(6) provides that the services provided by a local social services authority in the exercise of functions conferred on them by that section may include giving assistance in kind or, in exceptional circumstances, in cash. Among the forms of assistance in kind that may be given under this subsection is assistance in the form of accommodation. This is now the subject of express provision, as a result of an amendment which was made to section 17(6) with effect from 7 November 2002 by section 116(1) of the Adoption and Children Act 2002. But it was already the practice for short-term residential accommodation to be provided under that subsection before it was amended.

    74.  It has not been suggested in any of these cases that it would have been beyond the power of the local authorities at the date when these decisions were taken to provide assistance in the form of residential accommodation if this was needed to enable the children to live with their families. But it is not enough for it to be shown that the local authorities had power to provide the accommodation. The appellants' case is that the effect of section 17(1) is that the respondents owed a duty to each individual child in need to provide that child with residential accommodation to enable the child to live with his or her mother in the same family if an assessment of that child's needs shows that this is what is required to meet these needs. My noble and learned friend Lord Nicholls has said that the issue is whether a local authority may insist on providing accommodation for a child alone as distinct from accommodation for the child and the mother. It should be appreciated however that the alternative to providing accommodation for the child and the mother is that the child would be looked after by the local authority: see section 22(1). There are various ways in which a local authority may provide accommodation for a child whom they are looking after, none of which involve requiring the child to live alone: see section 23(2).

    75.  The respondents in each of these three cases are London boroughs, so they are the local housing authority as well as the local social services authority for their areas. It is in their capacity as the local social services authority that they are charged with the responsibility of performing functions under Part III of the 1989 Act. The cost of providing accommodation for children in need under Part III must be met out of the funds which are set aside in their accounts for the provision of social services. As I have mentioned, the provision of accommodation is only one of the many services which may be provided in the performance of the general duty which is owed by the local social services authority under section 17(1). It is an inescapable fact of life that the funds and other resources available for the performance of the functions of a local social services authority are not unlimited. It is impossible therefore for the authority to fulfil every conceivable need. A judgment has to be exercised as to how needs may best be met, given the available resources. Parliament must be taken to have been aware of this fact when the legislation was enacted.

    76.  That is the background to the question of law which lies at the heart of all three appeals. Does section 17(1) require a local social services authority to meet every need which has been identified by an assessment of the needs of each individual child in need within their area? For the appellants it is maintained that, once there has been an assessment of the needs of an individual child in need, there is a specific duty on the local social services authority under this subsection to provide services to meet the child's assessed needs. It follows that the child has an absolute right to the provision of residential accommodation, if this is the need which has been identified by the assessment. If this approach is right, neither the cost of providing these services nor the availability of resources can play any part in the assessment of the child's need by the local social services authority or in its decision as to whether, and if so how, it should meet that need.

    77.  My noble and learned friend Lord Nicholls has said that, on the respondents' approach to the construction of section 17(1), it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1) and that this would go far to stultify the purpose of Part III of the Act. I should make it clear, before I embark on my analysis, that I am unable to agree that this conclusion follows from the respondents' argument. Section 17(2) provides that, for the purpose of facilitating the discharge of the general duty under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty of the local authority to take reasonable steps to identify the extent to which there are children in need in their area is to be found in paragraph 1 of the Schedule. That will involve assessing the needs of each child who is found to be in need in their area as paragraph 3 makes clear.

A v Lambeth: section 17(1)

    78.  The situation in this case raises the question which these cases have identified under section 17(1) in its most acute form. The needs of the appellant's two disabled children were assessed by the respondent in the exercise of their functions as the local social services authority. It was found that the flat in which they were living was overcrowded and damp and that the bedroom windows and kitchen units were broken. It was also found that the flat was in a location which was very dangerous to them as it was very close to the road and one of the children had a fixation with climbing out of the window and running out of the front door. The conclusion was that the children should continue to live with the family but that the family needed to be "re-housed" to an appropriate accommodation. The appellant maintains that it is the duty of the respondent under section 17(1) of the Act as the local social services authority to meet the assessed need, and she seeks an order to that effect.

    79.  The duty which has been placed on the local social services authority by section 17(1) to provide a range and level of services appropriate to the children's needs is described by the subsection as a "general duty". This duty is said by the opening words of the subsection to be in addition to the other duties imposed on them by Part III of the Act. And section 17(2) provides that, for the purpose principally of facilitating the discharge of their general duties under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty on which the appellant seeks to rely in this case is not one of the other duties imposed on the respondents by Part III of the Act, nor is it one of the specific duties set out in Part I of Schedule 2. Her case rests therefore fairly and squarely on the propositions that the general duties described in section 17(1) are owed to each and every child in need individually, and that they are enforceable against them by or on behalf of each individual child accordingly. The contrary view is that section 17(1) is designed to set out the general principles which the local services authority must apply when providing services to children in need in their area.

    80.  An examination of the range of duties mentioned elsewhere in Part III of the Act and Part I of Schedule 2 tends to support the view that section 17 (1) is concerned with general principles and is not designed to confer absolute rights on individuals. These other duties appear to have been carefully framed so as to confer a discretion on the local social services authority as to how it should meet the needs of each individual child in need.

    81.  Section 18(1), which imposes a duty to provide day care for pre-school children, provides that the local authority shall provide such day care "as is appropriate". Section 20(1), which imposes a duty to provide accommodation for a child for whom no person has parental responsibility, who is lost or abandoned or whose carer has been prevented from providing him with suitable accommodation or care, and section 20(3), which imposes a duty to provide accommodation for children over sixteen, leave important matters to the judgment of the local authority: "appears to them to require accommodation" in section 20(1); "whose welfare the authority consider is likely to be seriously prejudiced" in section 20(3). So too does section 22, which imposes a duty on the local authority (described in the side-note, but not in the section itself, as a "general" duty) before making a decision with respect to a child whom they are looking after to ascertain the wishes and feelings of the child and various other people "so far as is reasonably practicable" and to give "due consideration" to such wishes and feelings as they have been able to ascertain. So too does section 23, which imposes a duty on the local authority to provide accommodation for children whom they are looking after, as section 23(2) sets out a range of options which includes in subsection 2(f)(i) such other arrangements as "seems appropriate to them". The duties in Schedule 2 follow the same pattern. The duties in paragraphs 6 and 7 also leave important matters to the judgment of the local authority: "designed" to "minimise" the effect in paragraph 6; "designed" to "reduce", to "encourage" and to "avoid" in paragraph 7. Those in paragraphs 8 and 9(1) are qualified by the expression "as they consider appropriate", and the duty in paragraph 10 is qualified by the words "take such steps as are reasonably practicable".

    82.  The discretion which is given by these provisions to the local authority is framed in various ways, but the result is the same in each case. Where a discretion is given, the child in need does not have an absolute right to the provision of any of these services.

    83.  The use of the expression "general duty" in section 17(1), too, suggests that the purpose of the subsection was to set out duties of a general nature only and that they were not intended to be enforceable as such by individuals. The DHHS Review of Child Care Law contained the following recommendations:

    "5.7 Local authority powers and duties regarding children living with their families could be regarded as having two main aims: to provide 'family support' to help parents bring up their children; and to seek to prevent admission to care or court proceedings except where this is in the best interests of the child .…

    5.8 We believe the provisions should be stated clearly in general terms of making services available at an appropriate level to the needs of the area rather than in terms of duties owed to individual children or families, in order to leave local authorities a wide flexibility to decide what is appropriate in particular cases while providing for a reasonable overall level of provision. It is for local authorities to decide on their priorities within the resources available to them."

    84.  The recommendations of the DHHS Working Party on Child Care Law were taken into account in the White Paper, The Law on Child Care and Family Services, which preceded the introduction of the Bill which became the 1989 Act. Chapter Two of the White Paper deals with services to families with children. In paragraph 14 it was explained that the powers and duties of local authorities to provide services to promote the care and upbringing of children and to diminish the need to take them compulsorily into local authority care were to be revised, and that there was to be a new focus on the provision of services in voluntary partnership with parents. In paragraph 18 the proposals for promoting the care and upbringing of children in their families were introduced in this way [emphasis as printed in the White Paper]:

    "It is proposed to give local authorities a broad 'umbrella' power to provide services to promote the care and upbringing of children, and to help prevent the breakdown of family relationships which might eventually lead to a court order committing the child to the local authority's care. Within this power the local authority will be able to provide services to a child at home, for example a family aide to assist within the home; at a day centre, for example a day nursery for pre-school children, an after school scheme for school age children or placement with a childminder; or residential facilities allowing a child to stay for short or long periods away from home, say with a foster family or in a children's home. The local authority will also be able to offer financial assistance in exceptional circumstances. This is not an exclusive list …."

    85.  This legislative background serves to reinforce the impression which the structure and language of the legislation itself gives, that the so-called "general duty" in section 17(1) is owed to all the children who are in need within their area and not to each child in need individually. It is an overriding duty, a statement of general principle. It provides the broad aims which the local authority is to bear in mind when it is performing the "other duties" set out in Part III (see the words in parenthesis in section 17(1)) and the "specific duties" for facilitating the discharge of those general duties which are set out in Part I of Schedule 2 (see section 17(2)). A child in need within the meaning of section 17(10) is eligible for the provision of those services, but he has no absolute right to them.

    86.  The appellants submit that the correct analysis of section 17(1) is that the general duty which it sets out is made "concrete and real" for a specific person when that person is assessed as being in need of the services which are available by way of the general duty. In other words, the process of assessment "crystallises" the general duty so that it becomes a specific duty which the local social services authority now owes to the individual whose needs have been assessed.

    87.  This argument is based on the approach which was taken by the Court of Appeal in R v Kensington and Chelsea Royal London Borough Council, Ex p Kujtim [1999] 4 All ER 161 to the case of a person who had been assessed by the local authority under section 47 of the National Health Service and Community Care Act 1990 as being a person in urgent need of care and attention which was not otherwise available to him, so that he satisfied the criteria laid down in section 21(1)(a) of the National Assistance Act 1948. It was submitted in that case that, in consequence of that assessment, the local authority were under a continuing duty to meet these needs by providing him with residential accommodation until, upon a reassessment, it was decided that his needs had changed. That argument was accepted by the Court of Appeal. The contrary argument, that this was no more than a "target" duty in the sense of the label used by Woolf LJ in R v Inner London Education Authority, Ex p Ali (1990) 2 Admin L R 822, 828 in relation to section 8 of the Education Act 1944, was rejected. Potter LJ said in Ex p Kujtim, at p 175c-d, para 30, that the position was as follows:

    "Once a local authority has assessed an applicant's needs as satisfying the criteria laid down in section 21(1)(a), the local authority is under a duty to provide accommodation on a continuing basis so long as the need of the applicant remains as originally assessed, and if, for whatever reason, the accommodation, once provided, is withdrawn or otherwise becomes unavailable to the applicant, then (subject to any negative assessment of the applicant's needs) the local authority has a continuing duty to provide further accommodation."

    88.  In the Court of Appeal in the A case [2001] EWCA Civ 1624, (2001) 4 CCLR 486, 501, para 26 Laws LJ, with whose opinion on this point Chadwick LJ and Sir Phillip Otton agreed, said that he was willing to accept that the approach taken by Potter LJ in Ex p Kujtim might be characterised or described as demonstrating that the operation in practice of section 21 of the National Assistance Act 1948 involves the notion of a "target" duty which becomes "crystallised" and thus enforceable upon the happening of an event, namely a needs assessment. But he went on to say that this analysis of section 21 of the 1948 Act could not conclude the question whether a like result could be got out of section 17 of the 1989 Act. Having examined the differences of language between these two provisions, he concluded, at p 502, para 29, that neither the terms of section 21 of the 1948 Act nor the reasoning of the Court in Kujtim could support a construction of section 17 of the 1989 Act which would in practice produce an analogous result.

 
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