Case No. Case-No.-CO-5942-2017

d London WC2A 2LL B e f o r e: DAVID ELVIN QC (Sitting as a Deputy High Court Judge) Between: THE QUEEN on the application of KI Claimant v LONDON BOROUGH OF BRENT Defendant Felicity Williams (instructed by G T Stewart Solicitors and Advocates) appeared on behalf of the Claimant David Carter (instructed by the London Borough of Brent) appeared on behalf of the Defendant Hearing date: 1 May 2018 Royal Courts of Justice Strand London WC2A 2LL B e f o r e: DAVID ELVIN QC (Sitting as a Deputy High Court Judge) Between: THE QUEEN on the application of KI Claimant v LONDON BOROUGH OF BRENT Defendant Felicity Williams (instructed by G T Stewart Solicitors and Advocates) appeared on behalf of the Claimant David Carter (instructed by the London Borough of Brent) appeared on behalf of the Defendant Hearing date: 1 May 2018 Judgment Approved by the court for handing down (subject to editorial corrections) DAVID ELVIN QC (Sitting as a Deputy Judge of the High Court)Introduction1.This is an application for judicial review, brought with permission granted on 7 February 2018 by Philip Mott QC (sitting as a Deputy High Court Judge), of the decisions of the London Borough of Brent (“the Council”) to refuse to recognise the Claimant as a child in need requiring accommodation under s. 20 of the Children Act 1989 (“the 1989 Act”) and, subsequently, on his attaining the age of 18 on 5 January 2018, refusing either to recognise his status as a “former relevant child” (“FRC”) for the purposes of s. 23C of the 1989 Act or, if he was not, to exercise its discretion to treat him as such (see R (GE) Eritrea v Secretary of State for the Home Department [2015] 1 WLR 4123 at [53]-[55].).2. I will refer to the Claimant in this judgment as K, to his cousin as M and to their uncle as U. K’s friends are referred to as A and Y. Quotations from the evidence have been adjusted accordingly. Duty of candour3. Before turning to the facts of this case, it is necessary for me to consider an important preliminary issue. 4.On reading the papers, I was concerned that the Council had not fully complied with its duty of candour and questioned at the beginning of the hearing whether the Court had been given an accurate account of the material facts. It was evident from the bundle that there were a large number of significant redactions in the documents and there were documents, especially the initial viability assessment, which were missing. I asked the Council to consider this and I am told that some 400 unredacted documents were provided to the Claimant’s legal team during the course of the lunchtime adjournment of the one-day hearing. I therefore allowed written submissions to be made on the question of whether there had been the omission of any material facts and compliance with the duty. 5.A clear warning had been given to the Council in the Claimant’s pre-action letters in December 2017 of the need to provide disclosure and to comply with the duty of candour. I had been assured by Mr Carter for the Council at the hearing that his solicitor had been through the unredacted documents the day before the hearing and had satisfied herself that the redactions were in connection with the other child (K’s cousin, M). This turned out to be incorrect and a different explanation has now been given. 6.The Court also has a witness statement dated 4 January 2018 from Tracey Low who has been the allocated social worker for K since 13 September 2017. Although she does not say so in her statement, other than giving the usual assurances that the contents of her statement are true and correct to the best of her knowledge and belief, as the allocated social worker she will have had access to the complete Council records concerning K for the last 7 months and consulted the files before making her statement. 7.No subsequent statement or disclosure was made prior to the hearing in line with the continuing duty to consider observance of the duty of candour.8.Unfortunately, my concerns turned out to be well-founded and from the documents disclosed and the written submissions made to me following the hearing, it is clear that an accurate picture of the material facts was not provided by the Council. This is not disputed by the Council. The Council explains in its written submissions that it did not have appropriate procedures in place to enable the lawyers to be sure that the duty had been complied with. There must have been inadequate supervision of the drafting of Ms Low’s statement to ensure it dealt with the material facts. Indeed, the statement I have been provided on disclosure says nothing about Ms Low’s access to, and account of, the documents or the checking of the statement of Ms Low by the legal team or what advice she was given about compliance with the duty of candour. If the legal team did not have access to all the documents until 30 April as I am told, then they cannot have properly supervised the drafting of the witness statement on 4 January.9.I am told that the Council’s Legal Department does not have direct access to client records, that Social Services keep records in multiple files, and the Legal Department is dependent on the provision of the information through the Data Protection Team. The documents were requested by the Council’s legal department on 18 January (2 weeks after the filing of Ms Low’s statement). It appears that despite several reminders both from the Claimant’s solicitors, and internally, a set of unredacted papers (including the viability assessment) was not provided to Ms Malik, instructing Mr Carter, until the day before the hearing. In the time available, contrary to what I was told in Court, she had no time to go through them (they were not in the same order as the redactions apparently) before the hearing began. I am told that the non-disclosure in this case was not deliberate and that it -“is of grave concern to the Defendants who are anxious to ensure that the same thing does not happen in the future. It maybe that staff have been overly cautious during the redaction process. A full investigation will be undertaken by the various different departments to ascertain the cause of this failure.”10.The difficulties encountered cannot justify the failure by Social Services, the witness and the Council’s Legal Department properly to review the material disclosed or referred to especially since it was requested by the Claimant’s legal team from the outset and the Council had 4 months between the making of the claim and the hearing. The new/unredacted documents include material which goes to the Council’s asserted reasonable conclusions in respect of its statutory duties in this case. I do not know why those documents were not reviewed by either the Council’s legal team or counsel before the case began. I was not asked for time before the case started to allow the documents to be reviewed.11.Since this case concerns duties owed to vulnerable children, latterly young adults, I find this lack of effective procedures to ascertain the facts and obtain relevant documents from the department concerned to be disturbing taken with the very late concession (on the day of the hearing) that, despite resistance for over 4 months following the issue of proceedings, a duty under s. 20 had arisen at least for a period of time and that ground 1 was not contested.12.There can be no excuse for this poor compliance given the previous decisions by the Court emphasising the “very high duty on public authority respondents” (e.g. R (Quark Fishing Limited) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409, at [50]) and the Administrative Court Judicial Review Guide 2017 which includes at sections 6.4 and 14:“6.4 Duty of Candour 6.4.1 There is a special duty which applies to parties to judicial review known as the ‘duty of candour’ which requires the parties to ensure that all relevant information and all material facts are put before the Court. This means that parties must disclose any information or material facts which either support or undermine their case. 6.4.2 It is very important that you comply with the duty of candour. The duty is explained in more detail below at paragraph 14.1 of this Guide. …. 14. Duty of Candour 14.1. There is a special duty which applies to parties to judicial review known as the ‘duty of candour’ which requires the parties to ensure that all relevant information and facts are put before the Court. This means that parties must disclose any information or material facts which either support or undermine their case. 14.1.1. This rule is needed in judicial review claims, where the Court’s role is to review the lawfulness of decisions made by public bodies, often on an urgent request being made, where the ordinary rules of disclosure of documents do not apply (see paragraph 6.5 and chapter 20 of this Guide on evidence) and where the witness statements are usually read (rather than being subject to cross examination by witnesses who are called to give their evidence orally). …14.1.3. The Court will take seriously any failure or suspected failure to comply with the duty of candour. The parties or their representatives may be required to explain why information or evidence was not disclosed to the Court, and any failure may result in sanctions.14.1.5. The duty of candour is a continuing duty. The claimant must reassess the viability and propriety of a challenge in light of the defendant’s acknowledgement of service and summary grounds.”13.These duties apply not only to claimants but to public authorities who are defendants since it will often be the case that the authority under challenge has access to information and materials which are unavailable, or may even be unknown, to the claimant. The absence of a general requirement to provide disclosure should not encourage a public authority to consider that it can adopt a less rigorous approach than a claimant, or to redact relevant material, and thus not ensuring that an accurate account of the facts is presented to the Court. See the comments of Singh J. (as he then was) in R. (Midcounties Co-operative Ltd) v Forest of Dean DC [2015] EWHC 1251 (Admin) at [149]:“It is well established that judicial review litigation is not to be conducted in the same way as ordinary civil litigation. This is not only because there are specific provisions in Part 54 of the Civil Procedure Rules 1998 which govern judicial review. More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular it had been clear since the decision of the Court of Appeal in R v Lancashire County Council, Ex p Huddleston [1986] 2 All ER 941 that a public authority defendant in judicial review proceedings had a duty of candour and co-operation so as to assist the court in understanding its decision-making process and to deal with the issues fairly. It had to conduct the litigation with its cards face upwards. That was based on the concept that it acted in the public interest, and not merely to protect a private, commercial interest.”14.I do not consider that the Council properly discharged its duty in this case and this is of particular concern given the nature of the claim and the vulnerable status of the Claimant. I cannot emphasise strongly enough the importance of the duty of candour in the case of vulnerable children and young people and that the local authorities charged with these duties should have in place procedures to ensure that that they do not fall into similar errors such as those made by Brent Council in this case - which included the lack of access by the legal department to the social services records relied on by Tracey Low until almost 4 months after her witness statement was filed.15.The Court’s overriding concern is to ensure that the interests of children and young persons have been properly protected and the question of inconvenience and costs to the authorities concerned in reporting and accounting for their decisions and actions cannot be permitted to take precedence or to provide an excuse for a failure to comply. It is the responsibility of the lawyers involved in such cases to ensure that all those involved in the authority are aware of the duty of candour and comply with it. Relevant law16. S. 17 and Schedule 2 of the 1989 Act place local authorities under a general duty to safeguard and promote the welfare of children in need within their area. It is common ground that at all material times K had been identified as a “child in need” within the Defendant’s area. 17. S. 20 of the 1989 Act sets out the duty to provide accommodation for a child in need: “ 20 Provision of accommodation for children: general (1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of – (a) there being no person who has parental responsibility for him (b) his being lost or having been abandoned or (c) the person who has been caring for him being prevented (whether or no permanently, and for whatever reason) from providing him with suitable accommodation and care . . . (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. (4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider to do so would safeguard or promote the child’s welfare. (5) A local authority may provide accommodation for any person who has reached the age of 16 but is under twenty – one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare. (6) Before providing accommodation under this section a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare- (a) ascertain the child’s wishes and feelings regarding the provision of accommodation; and (b) give due consideration (having regard to his age and understanding) to such wishes [and feelings] of the child as they have been able to ascertain. (7) A local authority may not provide accommodation under this section for any child if any person who (a) has parental responsibility for him; and (b) is willing and able to - (i) provide accommodation for him; or (ii) arrange for any accommodation to be provided for him, objects . . .” (In this case K’s uncle, U, did not have parental responsibility for him.) 18. If a child is provided with accommodation, under s. 20 he or she falls within the definition of a “looked after child” within s.22 of the 1989 Act: “ 22.— General duty of local authority in relation to children looked after by them. (1) In this section, any reference to a child who is looked after by a local authority is a reference to a child who is— (a) in their care ; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B. (2) In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours. (3) It shall be the duty of a local authority looking after any child—(a) to safeguard and promote his welfar e; and (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.” 19.The purpose of the duty is broad and is to protect the child, promote that child’s welfare, and to provide accommodation. The application of the duty has been considered at length by the courts. In R. (G) v Southwark LBC [2009] 1 WLR 1299 at [28] Lady Hale endorsed the list of issues required to be considered under s. 20 set out by Ward LJ in R (A) v Croydon LBC [2009] LGR 24 at [75] which I do not need to repeat here given the concession made by the Council at the beginning of the hearing. Lady Hale also made some observations at [32] which I will return to later in this judgment:“We have heard no submissions from the other parties on the circumstances in which, once triggered, the duty under section 20(1) might come to an end. Presumably, it will do so if the criteria are no longer met—if the child is no longer “in need”, or his parents or carers are no longer prevented from providing him with suitable accommodation or care, or if a competent child no longer wishes to be accommodated under that section. But the whole purpose of the leaving care provisions was to ensure that older children who were without family support were given just the sort of help with moving into independent living that children normally expect from their families. Authorities should therefore be slow to conclude that a child was no longer “in need” because he did not need that help or because it could be provided in other ways.”20.A local authority must accommodate a child to whom s. 20 applies and the application of the criteria are for the judgment of the Council though, once they have been found to apply, their application is not a matter of discretion. In G at [24] Lady Hale considered the House of Lords’ decision in R (G) v Barnet LBC [2004] 2 AC 208 and held: “24. On the other hand, the Act draws a distinction between the “general duty” in section 17(1) and the specific duties laid down elsewhere in Part III, including section 20. As Lord Hope made clear in para 81, these duties do leave important matters to the judgment of the authority. But once those matters have been decided in a particular way, it must follow that a duty is owed to the individual child. Thus Lord Hope was able to conclude, in para 100, that there was no doubt that the authorities were under a duty to provide accommodation under section 20(1) for the children of the two claimants who did not qualify for accommodation under the 1996 Act. The concern for children's welfare which ran throughout Part III meant that the children should not suffer because their mother had come to this country or had become homeless intentionally. Thus these mothers were “prevented” within the meaning of section 20(1)(c) even though it was their own choice….” 21. At [27] and [31] she added: “… Parliament has decided the circumstances in which the duty to accommodate arises and then decided what that duty involves. It is not for the local authority to decide that, because they do not like what the duty to accommodate involves or do not think it appropriate, they do not have to accommodate at all.”“Section 20 involves an evaluative judgment on some matters but not a discretion” 22. It is common ground that the accommodation to be provided must be suitable for the child’s needs but whether it is suitable is a matter for the Council’s expert judgment, subject to normal public law principles which set a high threshold for intervention by the Court. It is also right when considering the exercise of judgment to have regard to the current difficult and financially straitened circumstances in which local authorities have to operate: see Helen Mountfield QC (sitting as a Deputy High Court Judge) in R (O) v London Borough of Lambeth [2016] EWHC 937 (Admin) at [17] and [18]. 23.Further, the duty under s. 20 should be read in the light of the general duty under s. 11 of the Children Act 2004 which requires local authorities to make arrangements to ensure that:24. When the s. 20 duty arises, s. 22C applies and in this case, s. 22C(5) and (6)(d) applied since U was not a local authority foster parent nor was he proposed to be one: “ 22C Ways in which looked after children are to be accommodated and maintained (1) This section applies where a local authority are looking after a child (“C”). … (5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available. (6) In subsection (5) “placement” means— … (d) subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.”25. Since the Council now accepts that a s. 20 duty arose on 1 August 2017, but submit that the duty (and K’s status as a looked after child) ended with its arrangement in October 2017 to place the cousins back with their uncle, it is necessary to have regard to s. 22D: “22D Review of child's case before making alternative arrangements for accommodation (1) Where a local authority are providing accommodation for a child (“C”) other than by arrangements under section 22C(6)(d), they must not make such arrangements for C unless they have decided to do so in consequence of a review of C's case carried out in accordance with regulations made under section 26. 26.The relevant regulations made under s. 26 are the Care Planning Placement and Case Review (England) Regulations 2010 (SI 2010/959). Reg. 27 sets out the general duties when placing a child under “other arrangements” (other than e.g. with a parent or fostering), which was applicable here, including informing the independent reviewing officer and having regard to the matters set out in Schedule 6. These included, applicable here, under para. 1, the facilities and services provided and, under para. 2 -“C's -(a) views about the accommodation,(b) understanding of their rights and responsibilities in relation to the accommodation27.Part 7 of the 2010 Regulations sets out the arrangements made by the responsible authority for ceasing to look after a child. Where a child is to leave care, other duties are imposed on local authorities. These include at reg. 39: “39.— Arrangements to be made when the responsible authority is considering ceasing to look after C(1) This regulation applies where the responsible authority are considering ceasing to look after C.(2) Before deciding to cease to look after C the responsible authority must—(a) carry out an assessment of the suitability of the proposed arrangements for C's accommodation and maintenance when C ceases to be looked after by them,(b) carry out an assessment of the services and support that C and, where applicable P, might need when the responsible authority ceases to look after C,(c) ensure that C's wishes and feelings have been ascertained and given due consideration, and(d) consider whether, in all the circumstances and taking into account any services or support the responsible authority intend to provide, that ceasing to look after C will safeguard and promote C's welfare.(3) The responsible authority must include in C's care plan (or where regulation 47B(4) applies, the detention placement plan) details of the advice, assistance and support that the responsible authority intend to provide for C when C ceases to be looked after by them.(4) Subject to paragraph (5), where C has been a looked after child for at least 20 working days, any decision to cease to look after C must not be put into effect until it has been approved by a nominated officer.(5) In any case where C is aged 16 or 17 and is not in the care of the local authority, the decision to cease to look after C must not be put into effect until it has been approved by the responsible authority's director of children's services.(6) Before approving a decision under paragraph (4) or (5), the nominated officer or director of children's services must be satisfied that—(a) the requirements of regulation 9(1)(b)(i) have been complied with,(b) ceasing to look after C will safeguard and promote C's welfare,(c) the support the responsible authority intend to provide will safeguard and promote C's welfare,(d) C's relatives have been consulted, where appropriate,(e) the IRO has been consulted, and(f) where appropriate, regulations 40 to 43 have been complied with.”28.These requirements are reinforced by statutory guidance The Children Act 1989 guidance and regulations, Volume 2: care planning, placement and case review (June 2015) which includes guidance in Section 5 Ceasing to look after a child. This states at 5.6:“Where the plan is for a child to return to the care of their family when they cease to be looked-after, there should be a robust planning and decision making process to ensure that this decision is in the best interests of the child and will safeguard and promote their welfare [regulation 39].”29.It is unnecessary to consider the requirements in further detail because the Council accepts that it did not apply or comply with them. At that time the Council was still contending that s. 20 did not apply.30. Further duties may arise under s. 23C of the 1989 Act, which provides: “23C – Continuing functions in respect of former relevant children(1) Each local authority shall have the duties provided for in this section towards – (a) a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen) and in relation to whom they were the last responsible authority; and (b) a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child, and in this section such a person is referred to as a “former relevant child”.” 31. A “former relevant child” is: (1) a person who has been a “relevant child” (and would be one if under 18) and in relation to whom the authority were the last responsible authority; or (2) a person who was being looked after by the authority when he reached the age of 18 and immediately before ceasing to be looked after was an eligible child: s.23C(1). 32. A “relevant child” is a child who: (1) is not currently being looked after by a local authority; (2) was, before last ceasing to be looked after, an eligible child for the purposes of Sch.2, para.19B; and (3) is aged 16 or 17: s.23A(2). 33. A child is “looked after” by a local authority: (1) if that child is in their care or they provide accommodation for a continuous period of 24 hours in exercise of their social services functions apart from those under ss.17, 23B and 24B: s.22(1); and (2) as soon as the child becomes subject to a s. 20(1) duty: see R (D) v Southwark LBC [2007] 1 FLR 2181 at [55] (first sentence) and GE (Eritrea ) at [38]-[40]. This is a case under (2). 34. An “eligible child” is a child who: (1) is aged 16 or 17; and (2) has been looked after by a local authority for the prescribed period (i.e. 13 weeks in aggregate) which began after reaching the prescribed aged (14) and ended after reaching 16: para.19B(2) of Schedule 2 to the 1989 Act, and reg. 40(1) of the Care Planning, Placement and Case Review (England) Regulations 2010 (above). 35.Where s. 23C applies, then the FRC is entitled to support under the leaving care provisions (ss. 23C and 24D) until the age of 21 (or later if s. 23C(7) or s. 23 CZB apply). The transitional planning for a care leaver begins before the individual’s 18th birthday and the detailed requirements are set out in the Care Planning, Placement and Case Review Regulations 2010 (above) and the Care Leavers (England) Regulations 2010 (S.I. 2010/2571). The Regulations are supplemented by statutory guidance in The Children Act 1989 guidance and regulations, Volume 3: planning transition to adulthood for care leavers (rev. Jan 2015). The duties have been recently reinforced by the introduction of the requirements for corporate parenting in s. 1 of the Children and Social Work Act 2017 (in force from 1.4.18) and the new s. 23CZB of the 1989 Act which widens the application of local authority duties.36. The importance of the duties is highlighted in the Preface to the guidance: “These regulations and guidance are designed to ensure care leavers are given the same level of care and support that their peers would expect from a reasonable parent and that they are provided with the opportunities and chances needed to help them move successfully in to adulthood. Research and practice show that those leaving care supported according to the following principles have the best chance of a successful transition to adulthood: • quality; • giving chances where needed; • tailoring to individuals’ needs. This guidance seeks to have these principles at the centre of decision making for care leavers.”37. See e.g. Dobbs J. on the importance of pathway planning in R(Birara) v Hounslow LBC [2010] EWHC 2113 (Admin) at [54]. 38. The Courts should be astute to detect whether local authorities are seeking to avoid accommodating a child for 13 weeks in order to prevent these duties from applying. As Lady Hale held in in R (M) v Hammersmith & Fulham LBC [2008] 1 WLR 535 at [24]: “Thus there is all the difference in the world between the services which an eligible, relevant or former relevant child can expect from her local children's services authority, to make up for the lack of proper parental support and guidance within the family, and the sort of help which a young homeless person, even if in priority need, can expect from her local housing authority. This is not surprising as the skills and resources available to each department are so different. But it means that a huge amount depends upon whether or not she was a “looked after” child for the required total of 13 weeks, beginning some time after she reached 14 and ending some time after she reached 16. So it would also not be surprising if some local authorities took steps to avoid this.”39. It is the Council’s refusal to consider K as a FRC within s. 23C and to provide the level of support he would be entitled to receive under the leaving care provisions which lies at the heart of this case. As a vulnerable refugee who has been in the UK for only 18 months, the importance of those provisions is emphasised in order to enable K to have a successful transition to adulthood in the UK.