Migrant children: s. 17 support for members of extended family

Houses iStock 000007619264XSmall 146x219The High Court has dealt firmly with three arguments which are quite commonly relied upon in requests by NRPF (no recourse to public funds) individuals for support and accommodation under the Children Act 1989. Jonathan Auburn and Ben Tankel review the ruling.

Those unlawfully in the UK are prohibited by statute from calling on public funds, save to the extent that to withhold funds would breach any person’s human rights.

In R (Clue) v Birmingham CC [2011] 1 WLR 9, this principle was applied to the families of children in need. Since local authorities had the power to support and accommodate such families under s.17 CA 1989, that power could not be restricted where to do so would cause a breach of any person’s human rights.

Such a breach would arise where the family had an outstanding application for leave to remain in the UK on Article 8 grounds that was not obviously hopeless or abusive, but because of the local authority’s refusal to provide support the family would effectively be required to leave the UK and thereby abandon its application for leave to remain. The judgment has proved somewhat controversial, as it means those who would not otherwise have recourse to public funds can, in some circumstances, obtain support under s.17 of the Children Act 1989 instead.

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In the case of R (MK) v LB Barking and Dagenham [2013] EWHC 3486 (Admin) the claimant was brought up by her aunt. Her aunt and her aunt’s two children (the claimant’s cousins) were accommodated under s.17 CA 1989 as children in need in line with the principle in R (Clue) v Birmingham.

The claimant wished to continue living with her cousins after she reached adulthood. She contended that (a) permitting her to live with her young cousins would promote their wellbeing; and (b) to refuse to allow her to live with them and forcing her into street homelessness would, having regard to her age and sex, breach her own Article 3 rights.

The local authority refused to allow the claimant to remain in the accommodation, contending that it had neither the duty nor the power to do so under either s.17 CA 1989 or the local authority’s general power under s.1 Localism Act 2011.


The claimant contended that MK was in exactly the same position as the claimants had been in Clue: the local authority had the power to accommodate her under s.17(3) CA 1989 (which extends support to family members of children in need); she faced a breach of her Convention rights if not accommodated; accordingly, the local authority must support her. The local authority relied on its social worker’s assessment that that the boys’ welfare was sufficiently promoted by their mother alone without the need for their cousin.

The judge held that, given that the boys' welfare did not require the presence of their cousin, allowing the claimant to obtain support and accommodation under s.17 would circumvent the statutory prohibition on withholding support from illegal overstayers. It also risked turning the children’s services department into a surrogate housing authority. Utilising s.17(3) to accommodate this claimant would thus effect the improper purpose of circumventing these two, clear, statutory demarcations and as such was ultra vires the authority.

In the alternative, the local authority’s decision not to accommodate the aunt was rational, having regard to its social worker’s assessment that the aunt’s presence was not necessary for the wellbeing of the boys.

The claimant further argued that the local authority had the power to give the claimant a licence to inhabit the property under s.1 Localism Act 2011, which gives a local authority the power to do anything which a private individual could do. The claimant contended that just as a private individual is able to grant a licence to someone to live in a property; so too the local authority. The judge gave this argument short shrift holding, in essence, that s.1 Localism Act 2011 was not intended to circumvent clear statutory schemes.

The claimant’s final argument relied on the case of Limbuela, in which the House of Lords held that SSHD’s deliberate refusal of accommodation to those who had no other way to accommodate themselves could amount to a breach of Article 3. The claimant argued, by analogy, that the local authority could not deliberately refuse to provide support. The judge rejected that argument: in Limbuela the question was whether the SSHD could deliberately refuse to exercise a power which he already had; in the present case, the claimant was trying to create a new freestanding power. Whilst Article 3 prevented the SSHD from withholding an existing power, it could not create a new power to house those in need.


It is not uncommon that members of a child’s extended family seek to “piggy back” on the provision offered to the child under s.17 CA 1989. The bottom line is now that, save where it is necessary to promote the wellbeing of children, none of s.17(3) CA 1989, s.1 of the Localism Act 2011, or Article 3, can be relied upon to require a local authority to accommodate an NRPF family member of children in need. This firmly deals with three arguments which are quite commonly relied upon in requests by NRPF individuals for support and accommodation under CA 1989.

This restrictive approach is unlikely to apply to close relatives such as parents; but as can be seen from MK it may well apply to cousins. Whether it applies to older (18+) siblings of children in need is more difficult and no doubt awaits resolution by the Courts. Each case will, of course, turn on its own facts, and in particular whether the presence of the family member is necessary to promote the wellbeing of the children in question.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street. Jonathan is presenting a session on the Care Bill and changes to adult social care at the Weekend School in York on 5 April.

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