Judge rejects challenge to decision that 9-year-old was not a “child in need”

A High Court judge has dismissed a claim for judicial review over a decision of Birmingham City Council that a child was not a "child in need" for the purposes of section 17 of the Children Act 1989.

Following its decision, the local authority refused to provide the child and her parents with accommodation.

The background to the case was that the parents of the nine-year-old girl had entered the UK on visitor visas in 2002 but overstayed. The girl was born in October 2008.

In 2011 both the claimant father and his partner ceased employment, as the claimant made an application for indefinite leave to remain. When a cousin of the mother was no longer prepared to accommodate them free of charge, they approached the council for assistance.

Birmingham assessed the girl as a child in need under the 1989 Act and agreed to provide them with support and accommodation, in which they continue to reside.

In September 2016 the defendant’s social services manager decided that a review of the girl’s case should take place, in order to assess whether she was still a child in need.

Following the review the manager decided that the girl was no longer a child in need. The manager highlighted: “The refusal to share bank statements we are very clear exist due to the nature of the cash card and bank account held, the evidence of a home full of luxuries and the admission of outgoings for contract phones and sky accounts – leads the local authority to determine with a level of assurance and probability that the family are not in fact destitute, therefore [the girl] is not to be deemed a child in need in our area.

“These have eventually been offered and have evidenced that [the girl] is not living a destitute lifestyle neither are her parents, that Sec 17 money is being used to fund non-essential luxury contracts for TV, mobiles, broadband, cataloges (sic) and credit cards.”

In Stewart, R (On the Application Of) v Birmingham City Council [2018] EWHC 61 it was claimed that the decision was unlawful, in particular due to the failure by the local authority to take into account a relevant consideration, namely the effect of the "Right to rent" scheme provided by Part 3 of the Immigration Act 2014.

Mr Justice Jeremy Baker said he considered that given the context in which the determinations were made by the defendant, the parents' refusal to provide full disclosure about their supportive network of family and/or friends entitled the council to decide that the girl was no longer a child in need in this case.

“Moreover, given the permissive regime operated by the Secretary of State under section 21(3) of the 2014 Act, the right to rent scheme did not affect the lawfulness of the decision,” he added.

In those circumstances, the claimant's application for judicial review of the defendant's decision was dismissed.