A “child in need” … Or not?

Tom Amraoui looks at the issues raised by a High Court ruling on whether a local authority was entitled to conclude that a family without immigration status was not destitute.

What is a local authority’s social services department to do in the following situation?

A family without immigration status in the United Kingdom approaches social services claiming destitution. The children are alleged to be “in need” for the purposes of section 17 of the Children Act 1989, and that the family ought to be accommodated under that section.

On assessment, however, it becomes clear that the family have lived in this country for many years, apparently without any need for support from central or local government. The evidence shows that the family have a support network – friends, family, faith groups, charities – but they are less than forthcoming about the identities of the people who have supported them, and might continue to support them.

The social workers take the view that the family are not being entirely co-operative, and infer that the family have access to undisclosed support and resources. They are not persuaded that the family are destitute.

Are the children still to be treated as children in need?

This question came before Mr Justice Leggatt in the Administrative Court in MN & KN v London Borough of Hackney [2013] EWHC 1205 (Admin).

Facts

A family of Jamaican overstayers had approached Hackney’s social services department claiming that the family friend with whom they had been living could no longer accommodate them. They claimed they were, or were to become, destitute. They sought and obtained interim relief from the Court, compelling Hackney to accommodate them temporarily.

An assessment under section 17 of the 1989 Act was carried out by one of Hackney’s social workers, Mr Brown. Mr Brown was not satisfied that the family was destitute. Mr Brown had requested details of the friends and family members who had provided accommodation and support to the family during this period so that he could contact these people and check whether any of these sources of assistance were still potentially available and, if not, why not. The claimants’ parents had not been willing to reveal this information. In those circumstances Mr Brown was not satisfied that the family was destitute.

Judgment

What were the legal consequences of Mr Brown’s decision? Leggatt J held that the general duty and powers of a local authority under section 17 of the 1989 Act only arise where children are “in need”. Although section 17 does not say so in terms, the words “in need” does not mean children who are objectively in need as decided by a court but children whom the local authority has assessed as being in need.

This interpretation was in the Judge’s view in line with strong authority – not least the unanimous view of the Supreme Court in R (A) v Croydon LBC [2009] 1 WLR 2557 (but a view which was strictly obiter as the point did not fall for decision in that case).

The effect of this, according to Mr Justice Leggatt, was that the determination of the question of whether a child is “in need” within the scope of section 17 was within the province of the local authority. The local authority will reach its view following a factual investigation of need. It followed in the Judge’s view that unless and until a local authority has determined that a child within its area is “in need”, its powers under section 17 to provide services to the child or the child’s family are not engaged.

It followed that the claimants could only attack the local authority’s decision to refuse support them on two bases. Either they could show that Hackney failed to carry out a proper investigation, or they could show that even though a proper investigation was carried out, it was irrational for Hackney not to conclude that the family was destitute.

Neither one of these grounds was made out. Mr Brown had, in the Judge’s view, carried out a proper and detailed assessment, which included a number of face-to-face meetings with the family. Nor could his conclusion be characterised as perverse. The challenge failed.

Comment

On the “child in need” point, the decision in MN raises a number of important and interesting issues.

First, the decision is likely to be welcomed by local authorities (particularly those London boroughs which often find themselves in the position with which Hackney was faced). The decision strongly affirms the principle that the primary decision-makers in cases such as these are the local authorities themselves, and that what matters under section 17 is the “evaluative judgment” of the assessing social workers.

Second, the decision deals squarely with the particular situation in which those seeking support are less than fully co-operative with the assessing social workers. One of the tasks for the social workers is to determine whether there are alternative sources of support for the children. In many such cases, the family will have shown resourcefulness over many years, having lived in the UK without the support of the state. The decision suggests that the courts will not be quick to interfere with the professional judgment of social workers who find the family’s assertion of destitution incredible in circumstances such as these.  

Third, the decision raises the interesting question of just how far the courts may go towards deferring to social workers’ judgments in cases such as these. Earlier authority (particularly R (VC & Ors) v Newcastle City Council [2011] EWHC 2673 (Admin)) had established the principle that if a local authority is to say that a child who would otherwise be, in the statutory sense, a child in need, is not actually in need, because his relevant needs are being met by some third party, then the authority must demonstrate that the third party is actually able and willing (or if not willing can be compelled) to provide the relevant services. MN suggests that where the inability of the local authority to be more specific about the identity of these third parties has come about because of the family’s lack of co-operation with the assessment, then this principle does not necessarily apply. It remains to be seen whether the courts will follow such an approach in future cases.

Last but not least, the decision should not be taken to mean that local authority assessments under section 17 can afford to be anything less than robust. Inadequate investigations by social workers and poorly reasoned assessments are still apt to be challenged by way of judicial review, either on rationality grounds or because of insufficiently thorough enquiries.

Tom Amraoui is a barrister at 39 Essex Street, and appeared on behalf of the London Borough of Hackney in the MN case (instructed by Ros Foster of Browne Jacobson).