Home help needed to rescue duties

It is time to reform the duty on councils to
house children, says Russell Campbell, head of legal services at

Recent court decisions have put in doubt the
effectiveness of a vital safety net in the Children Act 1989. They
have also led to concerns that 35 years after the Ken Loach drama
Cathy Come Home, families are again threatened with separation and
their children being taken into care.

Two sections of the act have been very useful
in cases where families lose their accommodation or find that they
are in accommodation that cannot be lived in safely. Section 17
defines when children are “in need” and enables social services
authorities to provide services. Section 20 is an express
accommodation duty where a homeless child in need must be housed if
he or she is lost, abandoned or cannot be housed by a person who
has been caring for him.

The usual safety net in homelessness cases is,
of course, the local housing authority. However, cases frequently
arise in practice where that authority cannot help, because the
parent or adult caring for the child became homeless intentionally,
or where the family is already housed, albeit in unsatisfactory

In cases in the 1990s, steps were taken by
some social services departments to provide help. This ranged from
giving advice to the provision of accommodation. These services
were provided “to promote the upbringing of children by their
families” under section 17.

But, two recent cases have cast doubt upon
these measures. They show that social services may lawfully decline
to provide assistance with accommodation altogether, unless
accommodation is provided to the child only under section 20 of the
act. In the case G v Barnet, the social services department offered
to help with fares to enable the family to travel back to the
Netherlands (from where they had come) or to house the child

In the A v Lambeth case, the court considered
that nothing in section 17 created an enforceable duty on social
services to help with housing. In effect, the two cases show that
separating children from their parents, where a family is homeless,
is lawful, with the effect that only the child is housed. This is
extremely hard to reconcile with promoting the upbringing of
children by their families.

Why not amend section 17, so that assistance
with housing could be provided in appropriate cases? Similarly,
there seems no reason in principle why section 20 of the act could
not be broadened, so that a child may be housed with their carer,
rather than separately.

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