S, R (on the application of) v London Borough of Sutton [2007] EWCA Civ 790

[2007] EWCA Civ 790Case No C1/2007/1080/QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE STANLEY BURNTON
CO/9680/2006
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/07/2007
Before
THE MASTER OF THE ROLLSLADY JUSTICE ARDENLORD JUSTICE HOOPER
Between
THE QUEEN ON THE APPLICATION OF SAppellantTHE LONDON BOROUGH OF SUTTONRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Ian Wise and Ms Caoilfhionn Gallagher (instructed by Howard League for Penal Reform) for the AppellantMr Stephen Bellamy QC (instructed by Sutton Legal Services) for RespondentHearing Hearing dates: 23 July 2007
JudgementLORD JUSTICE HOOPER :
[1]The appellant, born on 26 July 1989, appeals the decision of Stanley Burnton J. He referred to her as “J”, and so shall I.[2]The appeal concerns in particular the duties of a local authority: a) under section 23B of the Act which sets out the duties of a local authority in respect of “a relevant child”. b) under section 20 of the Children Act 1989 (“the Act”) which imposes a duty on a local authority to provide accommodation of any child in need within their area.[3]It is the appellant’s case that Stanley Burnton J was wrong in finding that the respondent did not owe her the duties set out in section 20 and section 23B.[4]If the respondent owed a duty to the appellant under section 23B, that would (so Mr Wise submits) have significant consequences for her, including the availability of support until she is 21 and possibly longer.[5]The full facts are set out in the judgment of Stanley Burnton J [2007] EWHC 1196 (Admin).[6]In outline the facts are that for most of the period between August 2005 and the end of January 2006 J was on bail awaiting the outcome of two separate criminal cases: a robbery and an assault occasioning actual bodily harm on her mother. The robbery charge was first dealt with by Wimbledon Youth Court and then by Kingston Crown Court, which sentenced her to a 24 months Detention and Training Order on 27 January 2006. The assault charge was dealt with throughout by Sutton Youth Court, which, following a trial, sentenced her to a concurrent sentence on 31 January 2006. The appellant was released from Medway Secure Training Unit on 24 November 2006 subject to an electronic curfew and under supervision.[7]The appellant’s case falls into two parts: one relating to the period leading up to 27 January 2006 and the other relating to the time of her release.

Statutory provisions

[8]The relevant provisions of the Act are those to be found in Part III. This Part is headed “Local Authority Support for Children and Families Provision of services for children and their families”. It is important to note that action taken by the local authority under Part III cannot normally be taken against the wishes of any person with parental responsibility (see e.g. section 20(7), (8) and (11)) and there are requirements to ascertain the wishes of the child. Part IV, on the other hand, gives the local authority certain coercive powers.[9]Part III also includes section 17 which imposes a general duty to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs. Section 17 is not relevant to this case.[10]I turn to the relevant sections, omitting many of the sub-sections.[11]Section 23A provides:(1) The responsible local authority shall have the functions set out in section 23B in respect of a relevant child.(2) In subsection (1) “relevant child” means (subject to subsection (3)) a child who— (a) is not being looked after by any local authority; (b) was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and (c) is aged sixteen or seventeen.(3) ...(4) In subsection (1) the “responsible local authority” is the one which last looked after the child.(5) ... (a) is not being looked after by any local authority; (b) was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and (c) is aged sixteen or seventeen.[12]Section 23B provides:(1) It is the duty of each local authority to take reasonable steps to keep in touch with a relevant child for whom they are the responsible authority, whether he is within their area or not.(2) It is the duty of each local authority to appoint a personal adviser for each relevant child (if they have not already done so under paragraph 19C of Schedule 2).(3) It is the duty of each local authority, in relation to any relevant child who does not already have a pathway plan prepared for the purposes of paragraph 19B of Schedule 2— (a) to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and (b) to prepare a pathway plan for him. ... (7) The authority shall keep the pathway plan under regular review. (8) The responsible local authority shall safeguard and promote the child's welfare and, unless they are satisfied that his welfare does not require it, support him by— (a) maintaining him; (b) providing him with or maintaining him in suitable accommodation; and (c) providing support of such other descriptions as may be prescribed. (9) Support under subsection (8) may be in cash. (a) to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and (b) to prepare a pathway plan for him. (a) maintaining him; (b) providing him with or maintaining him in suitable accommodation; and (c) providing support of such other descriptions as may be prescribed.[13]Paragraph 19B of Schedule 2 to the Act provides, so far as material, that an eligible child is a child who is aged 16 or 17 and “has been looked after by a local authority for a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen.” By regulation 3 of the Children (Leaving Care) (England) Regulations 2001, the prescribed period is 13 weeks and the prescribed age is 14.[14]Section 22(1) provides: (1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is-- (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B. (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.[15]As to sub-section (1)(a), there was no dispute that the appellant had been “looked after” for about 42 days after she had been remanded to local authority care by the Sutton Youth Court on 17 August 2005. She had appeared before that court charged with assault occasioning actual bodily harm on her mother. The order remanding her into local authority care came to an end on 20 September 2005. A period of only 42 days in care is insufficient by virtue of regulation 3 of the Children (Leaving Care) (England) Regulations 2001, The prescribed period is, as I have shown, 13 weeks.[16]As to sub-section (1)(b), the only relevant function in this case is the function under section 20(1). This sub-section is crucial to this case. It provides: Every local authority shall provide accommodation for any child in need [defined in s. 17(10)] within their area who appears to them to require accommodation as a result of--(a) there being no person who has parental responsibility for him;(b) his being lost or having been abandoned; or(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.[17]It is accepted that during the relevant period J was both a child in need and within the area of the London Borough of Sutton.[18]It is necessary to refer to one more provision of the Act, namely section 23, which provides:(1) It shall be the duty of any local authority looking after a child-- (a) when he is in their care, to provide accommodation for him; and (b) to maintain him in other respects apart from providing accommodation for him.(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by-- (a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with-- (i) a family; (ii) a relative of his; or (iii) any other suitable person, on such terms as to payment by the authority and otherwise as the authority may determine (subject to section 49 of the Children Act 2004); (aa) maintaining him in an appropriate children's home; or (f) making such other arrangements as-- (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State. (a) when he is in their care, to provide accommodation for him; and (b) to maintain him in other respects apart from providing accommodation for him. (a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with-- (i) a family; (ii) a relative of his; or (iii) any other suitable person, on such terms as to payment by the authority and otherwise as the authority may determine (subject to section 49 of the Children Act 2004); (aa) maintaining him in an appropriate children's home; or (f) making such other arrangements as-- (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State.[19]Sub-section (2) gives the local authority various options when deciding how to fulfil its duties towards a child whom the authority is looking after. If the local authority places a child with any of the list of persons in sub-section 2(a), the local authority must make payment.[20]Before looking at the competing arguments, it will be helpful to summarise the material statutory provisions in so far as J is concerned. Section 20(1) imposed the duty upon the respondent to provide accommodation for J if J appeared to it to require accommodation as a result of the circumstances outlined in (c) (the respondent accepts that (c) applied). If the respondent, in fulfilment of its duty in respect of J under section 21, provided her with accommodation, then by virtue of section 22(1), J would be child being “looked after” by it. The respondent would then have the duty to maintain her as described in section 23(1). Section 23(2) sets out how the obligation to provide accommodation and maintenance is to be fulfilled. Furthermore J would have been a “relevant child” if she was an “eligible child” (section 23A(2)). J was an “eligible child” if she had been “looked after” for a period 13 weeks or more being a period which began after she reached the age of 14 and ended after she reached the age of 16. If she was an “eligible child” the respondent had the duties towards her set out in section 23B.[21]The first issue in this case is whether during the first period (post arrest and pre-sentence) she had been looked after for a period of 13 weeks or more. She would have been if during that period the respondent was providing accommodation pursuant to the duty under section 20(1). The second issue is whether, on her release, the respondent was obliged to provide accommodation for J pursuant to the duty under section 20(1) and, if so, the consequences thereof.

The first period

[22]In order to show that the appellant had been “looked after” for 13 weeks or more Mr Wise relied before Stanley Burnton J on the fact that the appellant had been accommodated by Mrs W for more than 13 weeks whilst on bail. The respondent accepts that sub-section (c) was satisfied when she went to live with W. As the judge held (para. 40), when the appellant was required to reside with W, section 20(1)(c) was satisfied because her father, who had cared for the appellant, was prevented from providing her with suitable accommodation or care.[23]Mr Wise submitted that the appellant had been accommodated by the respondent with W in the fulfilment of its duties under section 20(1) of the Act. The respondent challenges that. The respondent submits, as it had successfully submitted before the judge, that the appellant did not appear to them to require accommodation, because she was being accommodated by W as a friend of the family.[24]Stanley Burnton J said that it was common ground that the section 23B issue: 38. ... turns on whether, when she was accommodated by [W] between 11 November 2005 and 27 January 2006, J was “looked after” by Sutton for the purposes of paragraph 19B of schedule 2 to the Act. If she was so looked after, the total period during which she was so looked after exceeded the specified 13 weeks; otherwise it amounted to only 42 days.

The judge held:

[25]44. There is no evidence that Sutton made clear to Ms Williams that she must look to J’s father for financial support or assistance. On the other hand, there is no evidence that Ms Williams asked for, expected or was given any payment by Sutton for J’s accommodation. The only evidence is that some money was given for food: see the Core Assessment at page 22. However, in Southwark v D, nothing was said about financial support when the arrangement was made: see paragraph 8 of the judgment. The nearest I get to an understanding of what occurred is to be found in the Core Assessment, which has the following entry:
“10/11/05: YOT requested a fostering placement as (J) assaulted mother and father. Placement declined as family friend offered to provide accommodation.” 45. The first sentence is incorrect: J had assaulted her mother, but not her father. But if the family friend, i.e. Ms Williams, did offer to provide accommodation, and that offer was accepted, the accommodation was not provided by Sutton in the exercise of its section 20 functions. 46. In this unsatisfactory state of the evidence, despite Mr Wise’s further submissions, my conclusion remains that J was not a looked after child, not having been accommodated by Sutton for the prescribed period. I make it clear, however, that this has not been an easy decision, given the paucity of the evidence. “10/11/05: YOT requested a fostering placement as (J) assaulted mother and father. Placement declined as family friend offered to provide accommodation.”
[26]During the course of the appeal, Mr Wise raised a new argument based on documents which were not made available to Stanley Burnton J. Those documents showed that Sutton Youth Court had released the appellant on bail “to live and sleep each night as directed by Social Services” for a total period in excess of 13 weeks.[27]He also submitted that Kingston Crown Court had made a similar order, albeit that, according to the formal record of Kingston Crown Court, she was bailed for a significant time and in excess of 13 weeks with a condition that she live at an address in Mitcham (within the Borough of Sutton) with W. As to the order made by Kingston Crown Court, the judge said (para. 43): The order made by Kingston Crown Court on 11 November 2005 did not place J in the care of Sutton, or even make her bail conditional in terms on her residing where directed by Sutton or in accommodation provided or approved by it.[28]I shall deal with the new argument first: did the grant of bail on the condition that J was “to live and sleep each night as directed by Social Services” mean that the local authority was automatically “looking after” J? In other words does this order have the same consequences as an order remanding a child into the care of the local authority?[29]By virtue of section 22(1) a child is “looked after” if she is in the care of the local authority or provided with accommodation (in this case) by virtue of section 20(1).[30]J was not in care at this point. Indeed the respondent social services department closed their file on her on 12 October 2005. This was shortly after the order made by Sutton Youth Court remanding J into the care of the local authority had lapsed and when both courts had made it a condition of her bail that she live with her father. On 27 October J was remanded by Kingston Crown Court into secure accommodation.[31]If she was not in care was she being provided with accommodation by virtue of section 20(1) when, on 11 November 2005, she went to live with W as required by Kingston Crown Court and in accordance with the order of Sutton Youth Court requiring that she live as directed by social services? She continued to live with W until she was sentenced. I shall examine this question shortly.[32]Suffice it to say at this point that merely because an order is made granting her bail on condition that she lives and sleeps each night as directed by Social Services, cannot of itself mean that the provisions of section 20(1) are satisfied so that the local authority is providing accommodation pursuant to its section 20(1) duty. Incidentally, the relevant social services department might well not have been asked for its views. There is evidence in this case that it did not know about the order, it having been proposed by the YOT team. To saddle a local authority with the section 23 obligations merely because a court makes such an order would be extraordinary, in my view.[33]I should add that, very late in the day, Mr Wise referred us to guidance for YOT officers as to what bail conditions they might seek after a child has been in care but is no longer in care. The guidance suggested that an order of the kind made here might be sought. That guidance does not assist the question which we have to decide.[34]I turn therefore to the second way Mr Wise puts the case. He submits that the judge was wrong in his conclusions in paragraphs 44-46, which I have set out above. Mr Wise took us to various documents. He alighted on a contract, but it turned out to be a contract between the YOT and W and nothing to do with social services and nothing to do with any section 23 arrangements. He pointed out that whilst J was remanded into the care of the respondent, J had stayed with W and the curfew requirements attached to W’s address.[35]In my view, Mr Wise has come nowhere near upsetting the findings of the judge. J was not a child appearing to the respondent to require accommodation. We were taken to the decision of the Court of Appeal in London Borough of Southwark v. D [2007] EWCA Civ 182. In that case Smith LJ, giving the judgment of the Court, said:49. We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to 'side-step' that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. Usually, a private fostering arrangement will come about as the result of discussions between the proposed foster parent and either the child's parent(s) or a person with parental responsibility. But we accept that there might be occasions when a private arrangement is made without such direct contact. We accept that there might be cases in which the local authority plays a part in bringing about such an arrangement. However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.50. In the present case, the local authority took a central role in making the arrangements for S to live with ED. It directed the school that the father must not be allowed to take S away. It arranged a meeting attended by all the relevant parties. The father was told that he must have no contact with S. Those factors are far more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement. The father consented to the proposed arrangement with ED. S was consulted as to her wishes. Mr Dallas contacted ED to ask her if she would take S in. Mr Dallas delivered S to ED's home and checked that the arrangements were satisfactory. Those factors were equally consistent with an exercise of statutory powers as with the making of a private arrangement. However, there was no contact between ED and either parent. Mr Dallas said nothing to ED, either on the telephone or the following day at his office, about the arrangement being a private one, in which she would have to look to the parents for financial support or to Lambeth for section 17 discretionary assistance. Far from it, he gave her to understand that Southwark would arrange financial support. In our judgment, the judge was quite right to conclude that this was not a private fostering arrangement. Indeed, it is hard to see how he could have come to any other conclusion.[36]In this case social services did not take the kind of central role envisaged in this judgment when, on 11 November, J went to live with W. Mr Wise took us to a number of documents to show that the local authority did have such a role. However the documents emanated from the YOT team and show that the YOT did have a role in arranging J’s accommodation. However, whatever be the precise status of the YOT, it was not acting on behalf of the respondent local authority and not using money coming from social services.

The second period

[37]On 24 November 2006 J was released under supervision and initially subject to electronic curfew from Medway Secure Training Unit following her conviction and sentence for robbery and for an assault occasioning actual bodily harm on her mother. Upon her release the appellant was taken to Wayside Hostel in Redhill, in the Borough of Tandridge. The hostel was located near her father’s home. Wayside Hostel is a hostel run by a charity for homeless women between the age of 18 and 35.[38]On 11 December 2006, three weeks after her arrival, J was evicted from Wayside. She was placed in bed and breakfast accommodation as a homeless person. On 13 December she was placed at Whyteleafe Hostel, near Purley, where she remains. She is on the housing authority waiting list of the Borough of Tandridge.[39]It is submitted that, on her release, the respondent owed her the section 20(1) duties. Both Mr Wise and Mr Bellamy QC were agreed before Stanley Burnton J that the relevant date for determining the existence of the section 20 duty was the date of J’s release from custody (para. 55 of judgment).[40]There is now no dispute that, at least immediately before her release, the respondent had a section 20(1) duty to provide her accommodation as well as the other related duties. It is the respondent’s case, accepted by the judge, that by the time she was released there was no longer such a duty, because J no longer appeared to require accommodation.

The judge said:

[41]52. ... However, it is clear that the information obtained by [the respondent] amply justified ... the conclusion that accommodation under section 20 was unsuitable for her: ... In my judgment, it was not unreasonable for them to form the view that accommodation under section 20, which would have usually involved either a children’s home or a foster home, and the loss of entitlement to state benefits, was inappropriate. It is understandable that J would not have wanted this.

The judge continued:

[42]53. ... But what is, it seems to me, crucial is that J accepted the place at Wayside.54. Section 20 applies only if the child requires accommodation. It seems to me that the statutory provisions and the guidance can be reconciled by focusing on that requirement. If a local authority lawfully concludes that what a child requires is only “help with accommodation”, assuming the accommodation in question to be suitable, he does not require accommodation under section 20: ...55. ... On 1 and 2 November 2006, she had said that she would forego early release rather than be housed in Sutton. According to the Defendant’s evidence, she had said that she did not want to be accommodated by Sutton or in accommodation provided under the Act. By the date of her release, she did not require accommodation under section 20, because she had agreed to accept accommodation in Wayside. In these circumstances, my conclusion is that J was not then accommodated under section 20 and that the Defendant was not under a duty to do so on her release. (Underlining added)[43]Before us Mr Wise developed what appears to be a new argument, namely that the placement of the appellant at Wayside was pursuant to section 20(1).[44]The first point to make about this period is that the judge made a now unchallenged declaration that the respondent had failed to carry out a lawful assessment of J’s needs.[45]A series of letters to J’s solicitors whilst she was still in detention told them that J, on her release, should access the Homeless Persons Unit. Mr Bellamy accepts that this was quite wrong. The effect of articles 2 and 3 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (2002 No 2051) is that a person to whom a duty under section 20 is owed does not have a priority need.[46]The judge also said about the suggestion that she should be accommodated by the Homeless persons Unit: 59. ... [t]he basis for the conclusion that J could be suitably accommodated by the Homeless Persons Team is wholly unclear, and the conclusion difficult to understand in any event.[47]I agree. The judge continued: ... However, nothing was said as to any plan to assist her to manage in the community. At page 29, the Core Assessment stated:
“The overall aim of the plan is for (J) to receive appropriate support and guidance from the Youth Offending Team. The Team will arrange for the accommodation officer to meet (J) at the point of her release and take her to appropriate Homeless Persons Team for accommodation. …”
This was vague and unsubstantiated. I do not find in the Assessment “a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review” (see the Framework for the Assessment of Children in Need and their Families at paragraph 4.1). Figure 7 in the Framework guidance lists the areas in which clarity is required, and show that specificity is required that is lacking in this Core Assessment. “The overall aim of the plan is for (J) to receive appropriate support and guidance from the Youth Offending Team. The Team will arrange for the accommodation officer to meet (J) at the point of her release and take her to appropriate Homeless Persons Team for accommodation. …”[48]I turn to the letter of 15th November from the respondent to the appellant’s solicitors. According to that letter J had expressed a clear view to the Social Worker that she was in agreement with the plan that she should present herself to Tandridge on her release and pending an assessment she would be placed in bed and breakfast accommodation, which Sutton would fund pending the assessment. Understandably J’s solicitors replied that it was unacceptable to place a child in need without support in homeless accommodation with inadequate support.[49]On 16th November the respondent wrote a further letter. J did not wish to be accommodated and she was, it was said, in agreement with the “Local Authority Plan” (whatever that may have been). The letter said that if the local authority were to accommodate J under section 20 “it would be necessary to place her in approved accommodation, i.e. foster or residential care”. This was not an adequate or accurate explanation of the provisions of section 23(2). According to the letter, due to the requirement of the tag the respondent “would have difficulty in finding a placement in either Sutton or Tandridge”. The letter continued by saying that although Jade would have to present herself initially as homeless, the respondent was examining the possibility of a hostel which “it seems likely ... will meet your client’s needs”.[50]To put it another way, in this letter and the preceding letters, the respondent was seeking to “side step” its duties under section 20(1) by having the appellant declare herself homeless and thus (hopefully) obtain state benefits with which she could “buy” accommodation, in the first instance from a charity.[51]I return to para. 50 of the judgment, which I have already set out. The judge said: According to the Defendant’s evidence, she had said that she did not want to be accommodated by Sutton or in accommodation provided under the Act.[52]Whilst accepting that J may have said that she did not want to be accommodated by Sutton, or in accommodation provided under the Act or even that she did not want to be a “looked after” child (see para. 31 of the judgment), I have no doubt that the choices offered were not the only choices which the appellant should have been offered and that the whole process was undermined by the assumption that J could and should be suitably accommodated by the Homeless Persons Team. As Mr Bellamy fairly and properly conceded during the course of argument before us, there was no evidence before the judge that the respondent could not have placed the appellant at Wayside pursuant to section 23(2). She was not offered that choice.

The judge continued:

[53]By the date of her release, she did not require accommodation under section 20, because she had agreed to accept accommodation in Wayside.[54]As to this, the offer of accommodation at Wayside paid for by the appellant out of state benefits (which were paid to her because she was said to be homeless) was not, on the facts of this case, an offer which even if accepted, could result in the respondent evading its section 20(1) and related obligations.[55]Given Mr Bellamy’s concession, it seems to me that the appellant was placed at Wayside in fulfilment of the respondent’s obligations under section 20(1) which obligations continued at the time of her release from Medway.[56]I should add that I have found help in reaching my conclusions in the judgment of Holman J in H and others v London Borough of Wandsworth and others [2007] EWHC 1082 (Admin).[57]In the light of my conclusions it is not, in my view, necessary to deal with a further argument addressed to us by Mr Wise and which he addressed to Stanley Burnton J. The argument concerns the relationship between sub-section (1) and (6) of section 20. Section 20(6) provides: Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare--(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain. (a) ascertain the child's wishes and feelings regarding the provision of accommodation; and (b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.[58]Stanley Burnton J reluctantly concluded (paras. 50-51), on the basis of the authority of a Court of Appeal decision in R on the application of M v Hammersmith and Fulham LBC [2006] EWCA Civ 917 and a paragraph in the Department of Health’s Guidance on Accommodating Children in Need and their Families (LAC (2003) 13), that sub-section 6 is relevant when deciding whether there is any duty under section 20(1).[59]Stanley Burnton J said (para. 51): I certainly find it difficult to see that section 20(6), which would seem to be directed to the question what accommodation should be provided under section 20, may be used to decide whether accommodation should be provided under that section, since ex hypothesi the conditions for the imposition of the section 20 duty have arisen.[60]In my view we do not need to resolve this issue. I say only this. In deciding whether a child appears to the local authority to require accommodation for one of the stated reasons, the local authority will have to inform itself about the child and, I would have thought, that might well include talking to the child.[61]For these reasons I would allow the appeal in part and make a declaration the effect of which is that that the appellant was placed at Wayside in pursuance of the respondent’s obligations under section 20(1) which obligations continued at the time of her release from Medway STC.

Lady Justice Arden :

[62]I agree with the disposition of this matter as proposed by Hooper LJ, and with his reasons, save on one point. Hooper LJ has referred at [59] to the observations of the judge about the effect of s.20(6) and expressed the view that this court does not need to resolve the issues to which those observations give rise. While I agree that is so, in my judgment, for the reasons given below, the judge’s observations were not correct and led the judge to a further incorrect conclusion about the ability of the child by an expression of wishes to displace the local authority’s duty. This is an important issue and therefore one on which I add the following observations.[63]S.20 of the Children Act 1989 (“the Children Act”) contains a number of separate duties on a local authority to provide accommodation for a child in their area. S.20(1) is set out in [16] above. Before the local authority finalises any decision, it will need to obtain an assessment of the child's needs. As to such an assessment, s.20(6) applies whenever a duty arises under any provision of s.20, and it imposes a duty on the local authority before it discharges its duty to provide accommodation to take account of the wishes and feelings of the child. Thus s.20(6) provides:
“(6) Before providing accommodation under this section, the local authority shall, so far as is reasonably practicable and consistent with the child's welfare – (a) ascertain the child's wishes and feelings regarding the provision of accommodation; and (b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain. ”
[64]As Hooper LJ has explained at [59] above, the judge had difficulties with the reference to s.20(6) in the Department of Health's Guidance on Accommodating Children in Need and Their Families (referred to below in this judgment as “the Guidance”). The relevant passage was cited by Wall LJ in M v Hammersmith and Fulham LBC for the proposition that the Guidance made it clear that the decision as to whether a child is in need and requires accommodation is one to be taken on the basis of proper assessment. Wall LJ referred to the Guidance and continued:
“This makes it clear that the designation of a child as being "in need" under[s 17 of the Children Act] and whether or not accommodation should be provided for the child under [s 20 of the Children Act] is not a snap decision to be taken on the spot by Housing Officer faced with a homeless 17-year-old. The relevant paragraph of the Guidance reads: ‘Before deciding which section of [the Children Act] provides the appropriate legal basis for the provision of help or support a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the assessment of children in need and their Families, published by the government in April 2000. It should then use the findings of the assessment, which will include taking account of the wishes and feelings of the child as required by section 20 (6) of the Children Act as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to circumstances.’” ‘Before deciding which section of [the Children Act] provides the appropriate legal basis for the provision of help or support a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the assessment of children in need and their Families, published by the government in April 2000. It should then use the findings of the assessment, which will include taking account of the wishes and feelings of the child as required by section 20 (6) of the Children Act as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to circumstances.’”
[65]The judge's criticism of the passage from the Guidance set out by Wall LJ is set out in [59] above. It is based on the premise that what the Guidance is saying is that the wishes of the child could be used to decide whether accommodation should be provided under s.20. However, that was not the point being made by Wall LJ and I venture to think that it is not the point made by the Guidance itself. Reference is certainly made to s.20(6) but, as I read the Guidance, only on the basis that the child’s wishes will be included in the assessment which should precede a decision about accommodation under s.20 so that that decision is a properly informed one. I do not consider that the Guidance is suggesting that the child's wishes can be used to displace a duty otherwise arising. As the Guidance states, the assessment will simply take account of the child's wishes and feelings.[66]I make these observations because the judge went on to hold that S did not “require” accommodation for the purpose of s.20 of the Children Act because she had agreed to accept accommodation at Wayside (judgment, [55]). The judge may have been led into this line of thinking by his earlier conclusion as to the effect of the Guidance, which as I have explained I consider to have been misplaced. But, in any event as Hooper LJ has already explained, the local authority provided S with accommodation at Wayside. Any other conclusion would fly in the face of reality, and result in the local authority sidestepping its obligations under s.20.

The Master of the Rolls:

[67]I agree that the appeal should be allowed in part for the reasons given by Hooper LJ. I also agree with him that it is not necessary to resolve the issue of the true construction of section 20(6) for the purpose of deciding this appeal. It seems to me that, whatever the true construction of that sub-section, it may well be appropriate for the authority to discuss the position with the child before reaching a conclusion as to whether he or she ‘requires accommodation’ within the meaning of section 20(1). All will depend upon the circumstances of the case, including of course the age and maturity of the child.

Cited in 9 later judgments