When is a child ‘in need’?: Learning from a recent public law case

Barrister Thomas Amraoui discusses the implications for local authorities of a recent family court case he was involved in

court bible oath
Photo: OJO Images/REX Shutterstock

What is a local authority’s social services department to do in the following situation? A family without immigration status in the UK 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).

The 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.

He 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.

The judgement

What were the legal consequences of Mr Brown’s decision? The judge 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, “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.

And 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.

Issues and implications

On the ‘child in need’ point, the decision in this case raises a number of important and interesting issues.

First, the decision is likely to be welcomed by local authorities (particularly London boroughs that often find themselves in the same position as Hackney). The decision strongly affirms the principle that the primary decision-makers in cases such as these are the councils, 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 council says 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 a third party – then the authority must demonstrate the third party is 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.

  • Thomas Amraoui is a barrister at 39 Essex Street. He appeared in this case on behalf of the London Borough of Hackney.

More from Community Care

2 Responses to When is a child ‘in need’?: Learning from a recent public law case

  1. Janet February 27, 2014 at 1:19 pm #

    The family no longer had leave to reside in the UK. It is not stated if the family are Black or White. It is not stated for what purpose they had come to the UK in the first place or why they wanted to leave Jamaica. They were therefore, by lack of assessment, not failed asylum seekers because they had not been assessed, but had never approached the Council since they came to reside in the UK because they were staying with a friend who had put them up.

    The case therefore has implications to UKBA in the family not being followed up or investigated as Overstayers and they therefore should initially meet the cost of this.

    The case does not say if the parents arrived in the UK with any children or if they went on to have children whilst continuing to reside illegally in the UK and the impact on the citizenship of any or all of the children involved, as well as the impact of any division within the family.

    The family must also therefore have had access to food, water, etc as well as the fact that no Council Tax or H/B was being paid to the Council as well as the assessment of the person/s they were residing with and their status and the impact on their financial status, costs of schooling etc. as well as the impact on the children growing up in an environment they felt they did not have an entitlement to or even if they did have an entitlement to and their consequential thinking?

    This also needs an assessment to be able to assess the consequential thinking of the parents involved and their responsibility as parents. This may require development.
    Ideally this should be assessed by someone who is of Jamaican heritage or has knowledge of Jamaican culture so as not to make it oppressive.

    I have no doubt that the person who accommodated them did so to be able to help their friends but the reasons should also be established over a period of time.

    Being “hidden” has an awful impact on anyone and their sense of rights. It has an impact on subsequent behaviour and can lead to exploitation of a number of different kinds.

    I think that an historical friends and family assessment should have been and still should be carried out by the Local Authority but Central Government should pick up the financial costs in the intervening period whilst the reasons for being Overstayers is established and the reasons why they chose this action, and the impact on their Return to Jamaica and the impact on any children, now UK citizens or dual citizenship, as well as their safety.

    It also has to take into consideration as to why the Jamaican Government has not noticed that some of their residents have not returned to Jamaica. Obviously this now becomes political or the potential to become political and with the Jamaican Govt with their female Prime Minister; that country’s development; economy; capacity for economic growth; impact of White historical rulership on the inhabitants of Jamaica; the Jamaican role within the World Economy; increasing impact of weather patterns on the safety of the inhabitants; the fact that the current Prime Minister whilst a female leader in a patriarchical society has nevertheless followed the route of previous Prime Ministers in being re-elected several times as Prime Minister, which, in my opinion, speaks of “narrow thinking” rulership by definition of not spreading the net wider.

    All of these issues have an impact on the Jamaican natural inhabitants I have absolutely no doubt as well as bearing in mind that being Jamaican itself is multicultural – all of these things have an ongoing impact on culture, wellbeing, opportunity and health. They appear to be a proud sporting nation despite the environmental difficulties.

    The definition of “destitution” carries with it a number of acronyms such as poverty, misery, insolvency, hardship, etc. and the criterias being met in the assessment but I think that the PIES (physical, intellectual, emotional and social criteria should also be included in the assessment including the current impact and future impact involved in the LIKLIHOOD of their circumstances continuing and the impact on any positive change.

  2. Roselyn Thompson March 5, 2014 at 7:47 pm #

    I have read this story and it captured my interest of the family with the child (ren) in need. I want to asked who was supporting this family? Why has this family gone undetected for such long time? Why did the Social Worker didn’t went back to his manager and asked for help or a Social Worker with good insight of Jamaican history/heritage? If someone entred the UK via visitor visa and hadn’t return on or before their visa runs out. UK Border Agency should visit the address and reminds the person accommodated the visitor that his or her visitor need to return to their country of birth. UKBA need to go more to find people that is over stay too much is pressure is place on social workers to ply immigration with information regarding overstayers. The people involved with this family won’t give any information because if they’re involved in giving shelter to an illegal migrant they could find themselves in serious trouble that is the reason why this case would require sensitive and cultural capability to get to the heart of the matter.