W, R (on the application of) v Oxfordshire County Council [2003] EWHC 953 (Admin)

Case No CO/3045/2002[2003] EWHC 953 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 15 April 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
Between
THE QUEEN ON THE APPLICATION OF WClaimant-v-
Between
OXFORDSHIRE COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS RICHARDS (attended for hearing) and MR SACHDEVA (attended for judgment) (instructed by Turpin Miller & Higgins) appeared on behalf of the CLAIMANTMR SHELDON (attended for hearing) and MS PROOPS (attended for judgment)(instructed by Oxfordshire Council) appeared on behalf of the DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE MAURICE KAY: The claimant, who is 46 years of age, came to the United Kingdom in December 2000 with her two daughters; I shall refer to them as A, who is now aged 17, and D, who is now 13. Four months earlier she had married Mr W, a British citizen, in Jamaica. The father of A and D is a previous husband, S, who lives in Jamaica.[2]Soon after her arrival in the United Kingdom, the claimant's new marriage deteriorated. She was subjected to verbal and physical abuse; so was A. In August 2001, A had a breakdown. She was detained in a unit under the Mental Health Act from August 2001 until January 2002. In October 2001, the claimant and D left the matrimonial home and went to live in a refuge in Oxford, where they were joined by A on her discharge.[3]The claimant first came to the attention of Social Services in November 2001. On 30th May 2002, solicitors acting on behalf of the claimant wrote to Social Services, requesting them to undertake assessments and provide services. In June it became apparent that the claimant would soon have to leave the refuge. She commenced the present proceedings, and on 28th June Jackson J made an interim order requiring Social Services to provide accommodation if and when the claimant and her daughters had to leave the refuge.[4]On 10th July, a decree nisi was granted in divorce proceedings and on the same day the claimant, A and D moved into accommodation provided by Social Services. Social Services carried out an assessment of the claimant on 16th July, and on 18th July wrote to her in the following terms:
"Your current needs do not meet Oxfordshire County Council Social Services Department eligibility criteria for accommodation or services under the provision of Section 21 of the National Assistance Act or Section 47 of the National Health Service Community Care Act 1990. "
I am aware that colleagues in the Children and Families Department (Oxford) are undertaking an assessment and will be in contact with you under separate cover." On the 18th July, assessments were completed on A and D under Section 17 of the Children Act 1989. This led to a decision which is evidenced by a letter dated 19th July and by the Acknowledgment of Service in these proceedings, which bears the same date. In the Acknowledgment of Service it is stated:
"The Defendant has also considered its obligations under Section 17 Children Act 1989. The Defendant has completed an appropriate assessment and has concluded that it would be reasonable not to exercise its discretionary power to provide support for the Claimant and her daughters. The Defendant relies on the fact that the Claimant has a large extended family and other family members have been providing support to the Claimant and her family at regular times; the Claimant is able to work and though one of her daughters has mental health problems these are considered to be stable as is evidenced by the fact that the daughter has expressed a desire to gain employment and go to college. The Claimant has also support for [sic] her local Church community. The Claimant has also not exercised her legal right to seek support from her former partner which is open to her."
In the letter of 19th July it was added:
"You may wish to take instructions from your client about whether she wishes to accept an offer from Social Services to pay for her return flight to Jamaica where Social Services consider that her and her family's needs could be met. We should be grateful if you would take instructions on that point."
[5]On 20th August 2002, Collins J granted permission to apply for judicial review and on 10th September Social Services decided to carry out further assessments in the light of amended grounds of challenge which had been served. A further assessment of the claimant was carried out on 25th September, and updated assessments of A and D followed on 24th October. None of these new assessments was communicated to the claimant or her solicitors until 10th December. On that date, Social Services wrote to the solicitors in the following terms:
"Section 21 National Assistance Act 1948 Assessment The Assessment was originally carried out on 16 July 2002 and a further assessment was undertaken on 25 September 2002. "
We attach a copy of the reasons as to why it is considered your client does not qualify for support pursuant to Section 21 of the National Assistance Act 1948. "It is also apparent that your client may have accommodation otherwise available to her in Jamaica. "Section 17 of the Children Act 1989 The Assessment undertaken on 24 October 2002 sets out on the face of it the reasons why it is considered that the Local Authority have discharged its obligations pursuant to Section 17 by offering payment of the fares to [the claimant] and her children to return to Jamaica. You will note from the Assessment that this is considered to be the best way of meeting all your client's children's needs. "In the event that your client considers that she does not want to take up this offer and insists on remaining in this country without access to accommodation or subsistence then Social Services propose to offer to provide accommodation for [D] and [A] pursuant to Section 20 of the Children Act 1989."[6]The matter did not rest there. On 12th December, the claimant's solicitors wrote to Social Services taking issue with the assessments and providing further material. They added to this with more material on 17th January 2003 and invited Social Services "to complete the assessment". That was a response to a professed inability to complete the assessment in the earlier Social Services documents. The final development took place virtually at the door of the court, in that on the day before the hearing Barbara Lee, the senior social worker in the case, provided a further witness statement in which she reaffirmed the decision that:
"It was and continues to be in the best interests of the children and [the claimant] to return to Jamaica. I considered, and still consider, that they will have support and accommodation available to them in Jamaica that will meet their needs."
[7]In this application for judicial review, the claimant seeks to challenge that decision. What was at the outset a challenge to the decisions of July 2002 has become a challenge primarily to the decision of 10th December 2002 and its reaffirmation immediately prior to the hearing. However, it is common ground that in reviewing the recent decisions I should continue to have regard where appropriate to the material generated throughout the decision making process.[8]On behalf of the claimant, Miss Richards advances two main grounds of challenge. They are: 1) that the decision that the claimant, A and D should return to Jamaica so that A and D can return to the care of their father and paternal grandparents was wholly flawed, was not open to Social Services on the evidence, and was taken without consideration of all relevant matters; and 2) that the decision is irrational in view of the privations to which the claimant, A and D would be subjected on such a return. In addition, Miss Richards seeks to identify some further flaws which she helpfully and realistically describes as "smaller points".[9]The legal framework by which these challenges fall to be judged is not in dispute. At its heart lies Section 17 of the Children Act 1989, which provides:
"1) It shall be the general duty of every local authority ... a) to safeguard and promote the welfare of children within their area who are in need; and b) 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. 2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. 3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare."
[10]It is the assessments and decisions made and taken under that Section which are central to the case. If they survive scrutiny, it is unlikely that any flaws in the decision making process in relation to the claimant under Section 21 of the National Assistance Act 1948, or Section 47 of the National Health Service and Community Care Act 1990 would yield a result satisfactory to the claimant. As Moses J said in R (Ali, Mohammed and Mohamed) v Birmingham CC and the Secretary of State for Health [2002] EWHC 1511 Admin, at paragraph 40:
"If the Council could make proper provision to meet the needs of the family, including the mother, as a whole, under the provisions of section 17 then there was no requirement to consider separately any duty to the mother as an individual under section 21."
[11]There is one other matter to which I should refer before dealing with the grounds of challenge. The claimant's immigration status in this country has not been finally resolved following the divorce. Her position is presently under reconsideration in the light of a recent change of policy and in addition a decision taken prior to the change of policy is the subject of a pending appeal. I intend to approach the matters I have to decide without further reference to this. That seems to accord with the view of both counsel. It is clear that as long as the claimant, A and D are within this jurisdiction Social Services owe them duties which must be properly discharged. Ground 1[12]The foundation upon which Miss Richards seeks to build this ground of challenge is the conclusion of Social Services that the best interests of A and D are not only in returning to Jamaica, but once there in returning to the care of their father and his family. In this regard she refers to the following passages in the core assessment of November 2002:
"Both [A] and [D] are distressed with their current situation. As children they need permanence, security and stability in their lives. They need an environment which meets their educational, social and physical and emotional needs. It is therefore my professional judgement that the children should return to Jamaica, back to their father and grandparents who have played an instrumental part in their earlier upbringing."
And a little later:
"It is clear that the majority of [the claimant's, A's and D's] lives have been spent in Jamaica. There is no evidence of them being a tight family unit who have lived together before coming to England."
And finally:
"Therefore, it is my professional judgement that [D] and [A], although classed as children in need do not meet the criteria for children needing to be looked after by the Local Authority. I believe [A] and [D] should return to Jamaica to their paternal family as soon as possible."
The core assessment was signed by Barbara Lee. It is the view that informs all the later decisions and from which she does not resile.[13]Miss Richards makes the following criticisms of it. First, she submits that the conclusion was reached without discussion of this option with the children, and without ascertaining their views and wishes, contrary both to the guidance and to basic public law principles. Secondly, the conclusion was reached in the absence of any evidence that either the father or grandparents would be willing or able to care for the children. Thirdly, the conclusion was reached without any attempt to contact the children's father or grandparents. Fourthly, the conclusion was partly based on Barbara Lee's opinion that the claimant and her daughters had not been a tight family unit in Jamaica. Whether or not that opinion was open to her, the evidence clearly establishes that the claimant and her daughters are now a tight family unit and that the daughters are extremely close to and dependent upon their mother. Fifthly, the assessment failed to take account of the fact that A was removed by the claimant from her father's care in 1999 due to her breakdown and concerns about the adequacy of the care provided. Sixthly, there is evidence of considerable educational progress on the part of D since she changed schools a year or so ago.[14]Miss Richards is not wholly correct about the views of A and D, in the sense that in the core assessment Barbara Lee reports:
"[A] feels that this [a return to Jamaica and to the father and grandparents] is the best option. She is ambivalent about her child care course. She would like to work caring for adults. She does not like to see her mother upset. [D], she says, does not know what she would like, just for everyone to be happy and settled."
However, given their ages it cannot be said that the ascertainment of their views at that time was anything other than cursory. In the same report it is stated:
"I met [A] in passing as I was leaving -- having been given a cup of tea. Before departing, [A, D and the claimant] were in high spirits laughing and joking. [The claimant] spoke about her divorce"
. Nor do the earlier assessments evidence a serious ascertainment of A's and D's response to this proposed solution, although it is right to say that they were spoken to at greater length on those occasions.[15]The case for Social Services, as advanced by Mr Sheldon, draws on these observations. First, that the majority of the claimant's life and that of A and D has been spent in Jamaica. Secondly, the children's father, grandparents, siblings, aunt, uncle, and friends are in Jamaica and are significant members in their lives. The children remain in touch with their father, S, and other members of the family by telephone. The father has provided money and a home for them in the past. Thirdly, the children need permanence, stability and security in their lives. Their experiences whilst in the United Kingdom have been distressing. They have moved three times and have changed schools. All this, it is suggested, compares unfavourably with the situation in Jamaica. Accordingly, submits Mr Sheldon, the decision of Social Services was a reasonable decision after full investigation by the statutory body with the expertise to make such decisions, and the court should be slow to interfere with that decision.[16]I, of course, accept Mr Sheldon's submission about the respective roles of Social Services and the court, but in my judgment Miss Richards' criticisms of the decision that A's and D's best interests lie in the return to the care of their father are correct. To reach such a decision without any inquiry with the father or the grandparents to ascertain their views and suitability is enough in itself to vitiate the decision. To do so in the face of the evidence about the current relationship between the claimant, A and D with an apparent disregard to the claimant's misgivings about the adequacy of the care arrangements in 1999, when she removed A from her father's care following an earlier manifestation of her psychiatric problems, adds to the unreasonableness of the decision.[17]I observe that although Social Services eventually asked Dr James, A's consultant psychiatrist, about the availability of treatment for A in Jamaica and about her fitness to travel, and received positive answers to both questions, they did not ask him to express an opinion on where her best interests lay. I have no doubt that the decision about A's and D's future care was procedurally flawed and was afflicted by error in the ways submitted by Miss Richards.[18]In reaching that conclusion, I have had due regard to Mr Sheldon's submissions on the evidence. It seems to me that whilst there is still telephone contact between the children and their father, in reality the degree of contact has been no doubt necessarily limited and much of what Mr Sheldon relies upon, drawing on the core assessment, is based on little more than a few sentences in that document which are in turn based substantially on either the position prior to departure from Jamaica, or on somewhat limited conclusions from inquires made earlier in the year by Social Services. Ground 2[19]It is well established that in an appropriate case a local authority can discharge its statutory responsibilities by financing the return of a family to its home country, see R(G) v Barnet LBC [2001] EWCA Civ 540 and R (Ali, Mohammed and Mohamed) v Birmingham CC and the Secretary of State for Health [2002] EWHC 1511 Admin. The issue in relation to this ground of challenge is whether this is an appropriate case.[20]The submissions on behalf of the claimant are as follows. First, that the decision to return to Jamaica was based on an inadequate and unlawful assessment, this being the point which I have canvassed under Ground 1. Secondly, the conclusion that the children should return to the care of their father and grandparents in Jamaica, which underpins the decision, is unsustainable. Likewise, I have already addressed this. Thirdly, Social Services have reached a view as to the availability of family support in Jamaica which is entirely speculative and for which there is no evidential foundation. Fourthly, their decision was irrational in the light of the absence of local support and public funding in Jamaica. Fifthly, the reality is that if the claimant and her daughters are compelled to return, they will have no financial support and at best are likely to have to sleep on the floor of a relative. Given A's fragile mental health, D's age, and the claimant's own history of depression which is well-documented, the suggestion that this arrangement would offer "permanence, security and stability" in their lives is unsustainable.[21]In reply to those submissions, Mr Sheldon contends that the claimant has worked hard all her life to support her children and that there is no evidence to show that she cannot now work to maintain herself and her family as she has done in the past; this she could do in Jamaica. Secondly, whilst there are no state or welfare benefits in Jamaica, the High Commission has confirmed to Social Services that employment prospects there are good. There is also, submits Mr Sheldon, a culture of grandparents and extended family members caring for children whilst their parents work. Next, he relies on the fact that the claimant and her daughters can be accommodated by the claimant's daughter, K. She has offered them a home with her, although she admits that it would be difficult. She has moved to a bigger flat and it may be that temporary arrangements would have to be made, including a mattress on the floor. He also draws attention to the fact that the claimant may be entitled to receive some £3,000 from her recently divorced husband as part of a divorce settlement.[22]I do not propose to venture far into the field of the claimant's employment prospects in Jamaica. Prior to the final decision, Social Services had made a general enquiry of the High Commission and had received the reply that employment prospects are good. This does not live easily with the replies obtained by the claimant's solicitors from independent advisory sources. However, this is an issue that I cannot be expected to resolve. What troubles me once again is the flimsy basis upon which Social Services based their judgment that notwithstanding the lack of public benefits in Jamaica, any deprivation in relation to accommodation and support would be made good by the extended family because that is the prevailing culture. I agree with Miss Richards' submission that that is a dangerous assumption to apply to a particular case without appropriate inquiry. The only inquiry in Jamaica made by Social Services was in the form of two telephone conversations with the claimant's daughter, K. (She is the daughter of a marriage prior to the one to A and D's father.) Barbara Lee states in her recent witness statement:
"[K] confirmed that a return to Jamaica would be difficult and while she had moved to a bigger flat it may be that they would have to make temporary arrangements for her sleeping which could included [sic]a mattress on the floor. I do not consider this to be unreasonable as this is what [the claimant] has done for much of her life and certainly was the position prior to her move to this country."
K is aged about 24 and lives with her partner, whom the claimant does not know, and her own child, age 7.[23]I am wholly unimpressed by Social Services' case on accommodation with K. The proposal is "difficult", almost certainly short-term, and in the medium and long-term based on assumptions that seem to me to be speculative. Of course, if the children were to return to their father, an assumption I am not prepared to make in view of my findings on Ground 1, the problem may be resolved. However, at this point some ambivalence is apparent in Social Services' case, which at times is advanced on the alternative basis that A and D may remain with the claimant in Jamaica. If that were to be the case, no proper inquiry has been made as to their accommodation needs. The claimant's parents are in England. There is no evidence of any likely provision of accommodation in Jamaica from within her family, except the necessarily short-term arrangement with K. The claimant's ability to obtain suitable accommodation for herself, A and D would depend on her being able to find employment, and to earn sufficient to pay the rent and maintain the family. Although there is evidence that A and D's father contributed to their maintenance in the past, he is unemployed and in poor health. The notion that the claimant may soon receive a four figure sum in a financial settlement from her British husband is uncertain at this stage. The reference by Barbara Lee to the claimant having spent much of her life in Jamaica in conditions such as those which she would obtain in K's flat seems to me to be contradicted by the evidence of her former life.[24]All this brings me back to the question: is this an appropriate case in which Social Services can lawfully discharge their responsibility under Section 17 by paying for the return of the claimant, A and D to Jamaica? In the case of G, to which I have referred, the local authority did lawfully discharge its Section 17 duty in this way, but it was an important aspect of that case that the claimant and her child were entitled to social, housing and welfare benefits in Holland. Similar considerations were present in Ali, Mohammed and Mohamed, where the claimants and their children had fled domestic violence in Holland. In the present case, there is a total absence of such benefits in Jamaica.[25]On the hypothesis that in the light of my conclusion on Ground 1 the best interests of A and D may be with the claimant's mother rather than with their father, I consider that this ground of challenge also succeeds for the reasons advanced by Miss Richards. In these circumstances, it is unnecessary for me to address the further submission based upon Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Other grounds of challenge[26]Finally, I turn to Miss Richards' "smaller points". The first is that as Social Services' assessment was stated to be "incomplete" because of the absence of some information, it ought not to have been converted into a decision before the missing information was to hand. Even if this point had merit when it was formulated, that is no longer the case because the decision has been reviewed and reaffirmed after the receipt of the information. Secondly, it is said that there are material errors of fact underlying the decision. These include a belief that the claimant's recently divorced husband has land in Jamaica, that the claimant and her children have been on visits to Jamaica, and that she has been able to afford furniture; all which matters are disputed. Assuming that these are errors, on their own they would not have vitiated the decision. Thirdly, it is suggested that inferences adverse to the claimant were drawn from some of her responses to inquires. Again, these alone would not have vitiated the decision. Fourthly, Miss Richards submits that the failure to seek "best interests" information and opinions from health care professionals responsible for A and from the claimant's General Practitioner amounted to a failure to carry out a full and proper investigation. I take the view that there is something in this complaint, at least as far as A is concerned, but in reality it provides simply additional support for Ground 1 rather than being a discrete ground of challenge.[27]It follows from my conclusions in relation to Grounds 1 and 2 that this application for judicial review succeeds. The consequence is that the decision by reference to the Children Act 1989 Section 17 that the best interests of A and D are furthered by Social Services paying for the claimant, A and D to return to Jamaica must be quashed, and Social Services will have to reconsider the matter in the light of this judgment.[28]MR SACHDEVA: My Lord, just two items. First of all, pending any fresh decision, we seek an order that the local authority will continue to support the family as at present, and such support to continue at least until 21 days after the communication of any further decision.[29]MR JUSTICE MAURICE KAY: Yes. There is no problem about that is there, Ms Proops?[30]MS PROOPS: There is no problem with the interim provision save that we would like to take a decision as to what the appropriate accommodation should be, which may be that she remains where she is, it may not, having regard to other people within the area.

MR JUSTICE MAURICE KAY: Yes.

[32]MR SACHDEVA: Well, I have no objection to that.[33]MR JUSTICE MAURICE KAY: I shall simply order that they continue to provide appropriate accommodation until 21 days after the receipt of the communication of any further decision.[34]MR SACHDEVA: The second item, my Lord, is costs; we seek Community Legal Services detailed assessment and we say costs should follow the event.

MR JUSTICE MAURICE KAY: Yes.

[36]MS PROOPS: I have little to say.

MR JUSTICE MAURICE KAY: No argument about that is there?

[38]MS PROOPS: I have no argument about that.[39]MR JUSTICE MAURICE KAY: No. Thank you both very much indeed.