Judge rules council breached ECHR rights of orthodox Jewish 15-year-old boy - but not his brother - over proposal for respite placement accommodation

The judicial review claim in A And B (Minors: placement, faith) [2021] EWHC 455 concerned two brothers, A and B (the claimants), who form part of a family and wider community of strict orthodox Haredi Jews living in north Manchester. Their parents, X and Y, have 4 other children. Their litigation friend was their uncle, M. The claimants’ case, as advanced through the uncle, was the same in all material respects as that of the parents.

Both the boys (A is 15 years and B is 11) have a number of medical and behavioural conditions which require a very high level of supervision. Three of the four other children have additional needs.

His Honour Judge Stephen Davies, sitting as a High Court Judge, said the claimants challenged the decision by Manchester City Council as the relevant local authority to offer respite placement accommodation for the boys in a residential home in the Greater Manchester area, known as Birtenshaw, instead of in an exclusively orthodox Jewish residential home in the London area, known as Bayis Sheli.

The claimants contended that if placed in Birtenshaw the boys would be unable to manifest their strict orthodox Jewish faith, whether by complying with kosher dietary laws or by fully observing the Sabbath and other holy days.

The judge said the claim raised the issue as to whether or not the decision was public law unreasonable, in the context of the statutory background of Part III of the Children Act 1989 (CA 1989) against which the decision was made, and the further issues as to whether or not the decision was contrary to Articles 8, 9 and/or 14 of the European Convention for Human Rights (ECHR) and/or relevant provisions of the Equality Act 2010 (Eq A 2010).

HHJ Stephen Davies said it was important to state and record at the outset that:

(a) the defendant council did not challenge in any way the boys’ right to manifest their strict orthodox Jewish faith;

(b) the defendant had worked closely with Birtenshaw to prepare a care plan which would enable the boys to manifest their faith at Birtenshaw as far as considered practicable;

(c) there had been close dialogue and co-operation between all parties, assisted by a rabbi to whom the parents and M deferred in relation to matters of religious compliance, with a view to seeking to reach agreement;

(d) the claimants and the rabbi were not opposed in principle to a placement at Birtenshaw and the defendant was not opposed in principle to a placement at Bayis Sheli.

The issues which divided them were:

whether the arrangements proposed for the placement at Birtenshaw would sufficiently allow the boys to manifest their faith; and
whether the advantages of the boys being placed close to the family home and schools outweighed the advantages of the boys being placed in Bayis Sheli where there was no impediment, and every opportunity, to their being fully able to manifest their faith.

The judge also noted that this was not a case where the defendant council had any objection to Bayis Sheli on the grounds of comparative cost. “Indeed, it appears that the costs of accommodation at Bayis Sheli are no greater than those at Birtenshaw,” he said. “Further, although there has been some recent suggestion by the claimants that the facilities at Birtenshaw are not comparable to those at Bayis Sheli and that there are some other causes for concern, these do not form part of the pleaded case and I disregard them.”

Judge Davies said: “It is clear that the claimants face a high hurdle to persuade me that the defendant’s decision is one which is not reasonably open to a local authority, acting responsibly in accordance with the statutory scheme under the CA 1989, and it is also clear that the arguments under the ECHR and Eq A 2010 raise fact sensitive issues where there is room for legitimate disagreement.”

He added that there were also important differences as between the position of the two boys. “As regards A, it is agreed that there should be a 12 week placement for assessment with some weekend home stays or visits. The only two issues are whether the placement should be at Bayis Sheli or at Birtenshaw and whether it should be under s.20(1)(c) or s.20(4) CA 1989.”

As regards B, the judge said it was now agreed that he should remain at home for the present time, “although whereas the defendant proposes a once fortnightly overnight respite stay at Birtenshaw the claimants propose a once fortnightly full weekend stay at Bayis Sheli together with respite placement at Bayis Sheli during school holidays”. There was also a disagreement as to whether B’s placement should be under s.20(1)(c) or s.17(6) CA 1989.

On the particular facts of this case the judge concluded that:

(a) Manchester’s decision in relation to A, to offer a 12 week assessment placement at Birtenshaw, was public law unlawful and in breach of his ECHR rights. The judge found that the city council’s proposal would not allow him to manifest his religion in worship, practice or observance, subject only to necessary limitations.

(b) The defendant’s decision in relation to B, to offer a once a fortnight overnight stay at Birtenshaw, was neither public law unlawful nor in breach of his ECHR rights or contrary to the Eq A 2010.

The judge also sought in his ruling to address wider considerations which had been raised and which may arise for decision by the defendant council and, potentially, determination by the court in the future.