Blackburn-Smith v Lambeth London Borough Council [2007] EWHC 767 (Admin)

[2007] EWHC 767 (Admin)Case No CO/4200/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/04/2007
Before
MRS JUSTICE DOBBS DBE
Between
JACBETH BLACKBURN-SMITHClaimantLAMBETH LONDON BOROUGH COUNCILDefendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Bryan McGuire (instructed by AP Law) for ClaimantMr Jon Holbrook (instructed by Sternberg Reed) for DefendantHearing Hearing dates: 20 th March 2007
JudgmentMrs Justice Dobbs :
[1]This is an application for Judicial Review in which the Claimant challenges the Defendant’s decision to cease providing her and her children with accommodation and financial support.

BACKGROUND

[2]The Claimant entered the United Kingdom on 11th November 1999 by virtue of a visitor’s visa. Before the expiry of that visa, it is said that she made an application to remain as a student but received no substantive response. She failed to leave following the expiry of her visitor’s visa. She married Mr Alex Blackburn-Smith, a British citizen of Jamaican origin, on 8th June 2001. She then applied for leave to remain on the basis of her marriage. At the beginning of 2002 she was joined by her daughter (now aged 19) who is presently attending college and doing her “A” levels. It is said that the daughter has not been given leave to remain in this country. Indeed, there is an outstanding application in that regard. (Page 335). One of the Claimant’s sons also came with the daughter, but he returned to Jamaica, as the Claimant was unable to support him without recourse to public funds. During the hearing it was said that the sons were living with their grandmother, although the Claimant’s statement seems to suggest that he was being looked after by friends on his return.[3]The Claimant gave birth to two children who are now aged 4 and 3 years being born on 17th June 2002 and 11th July 2003. Both children have British passports. On 17th February 2004, the Claimant was given one year’s spouse leave with no recourse to public funds and with provision for her to apply for indefinite leave to remain in the UK after that period of leave had expired. Her marriage broke down prior to the expiration of her leave to remain. She sought and was refused leave to remain in this country. It is said that she lodged a further human rights (Article 8) application on 3rd February 2005, which remains undetermined to date. No documentation has been produced by the Claimant to establish that date. The only reference to the application is to be found in an acknowledgement letter from the Home Office dated 7th September 2006. (Page 338) Divorce proceedings were instigated by Mr Blackburn-Smith. The decree absolute was granted on 18th May 2006. (Page 229) The Claimant remains in contact with her ex-husband. The children have not had contact with the father and he has not pressed for contact through the courts.[4]The Claimant made an application to the Housing Department in March/April 2005 on the basis of being homeless. On 24th April 2005, she was notified that she did not qualify under the homelessness legislation because of her immigration status. On 3rd August 2005 the Claimant’s temporary accommodation was cancelled (Page 162). The Claimant and her children left the accommodation on 12th September 2005. On the same day Social Services started to house and financially support the Claimant and her children pending assessments under the Children Act 1989 and an assessment under the NHS and Community Care Act 1990 in respect of the Claimant. By January 2006 the assessments were completed and a decision for the withdrawal of support was taken. (Pages 126-160). The basis for the decision was that the Claimant and her husband could make arrangements for looking after the children; alternatively, the Claimant could return to Jamaica where she could work legally. To facilitate this, the Defendant indicated that it would consider paying her air fare and related expenses. As a last resort the Claimant could ask the local authority to take her children into care. The reports were sent to both the Claimant and her solicitors.[5]By a letter dated 3rd May 2006, in line with the decision in the assessments, the Defendant terminated the accommodation and support to the Claimant and her children as from 18th May 2006. (Page 216) The reasons for such withdrawal were: that the Claimant had always been told that the support was to be time limited; that the children's father has been informed that the council would expect him to pay towards his children; the authority could not continue to provide support whilst Mrs Blackburn-Smith awaits a decision from the Home Office; the children could not confer a priority need for social housing. It was accepted that without support from her husband and the local authority the Claimant would in effect be destitute. Information was provided in relation to the organisation International Organisation for Migration, which might be able to assist the Claimant in her return to Jamaica. If no other accommodation arrangements were possible then the council would be obliged to accede to any formal request to place the children into care under Section 20 of the Children Act 1989.[6]Following receipt of the assessments at the beginning of February 2006 and the letter of 3rd May, despite invitations by the Defendant to respond, nothing was done by the Claimant or her legal advisers with regard to the contents. It was not until 18th May 2006, having been made homeless, that the Claimant went to her solicitors. The solicitors applied for an injunction, as the Defendant had refused to accommodate the Claimant and her children. However the Defendant did indicate that it would honour its duties under Section 20 to take the children into voluntary care. The Claimant rejected this offer. (Page 259). On the same day, the injunction was granted by Mr Justice Roderick Evans. (Page 252) A claim for Judicial Review was issued on 19th May 2006. (Page 1).[7]Following the lodging of the claim form and grounds, the Defendant in the amended AOS dated 11th July 2006 asked for time to consider three issues before the question of permission was considered and before a revised assessment was made. (Pages 101-106) The issues to which further consideration was to be given were: the extent to which there can be a breach of Article 8 rights given that a person in the Claimant’s immigration position can only raise an Article 8 claim for support in an exceptional case by showing that it is seriously arguable that the immigration laws are incompatible with the Convention; the relationship that Claimant’s children have with their father and the relevance of this on Article 8 rights and finally, the Claimants alternative sources of support and funding and hence the extent to which Defendant could be required to provide support in order to avoid any breach of Article 8. The amended AOS dated 9th August 2006 (Pages 107-117) included a statement and exhibits from Jean Reid (Pages 118-237). An amended claim form was submitted dated 15th January 2007 with further grounds. (Pages 238-250) Following the permission hearing, an additional statement was prepared by the author of the three assessments in this case, which sets out in more details the reasons for the decisions reached in the assessments. (Separate document)

THE CLAIMANT’S SUBMISSIONS

[8]The grounds, amended grounds and skeleton argument set out numerous matters and although all aspects are relied on, essentially the main submissions as advanced in front of the court are as follows: i) Mrs Blackburn- Smith is unlawfully present in the United Kingdom. ii) As such she is barred from support under a number of social services statutes set out in paragraph 1 to schedule 3 of the Nationality Immigration and Asylum Act 2002. That includes services to adults under Part III of the Children Act 1989; iii) The two children are eligible for support. By paragraph 3 of the schedule support can be provided to an adult to the extent necessary to avoid a breach of human rights. iv) The Claimant's application for accommodation with her children is made under section 17 (3) of the Children Act 1989. There is no suggestion of her having a need for care and attention within the meaning of section 21 of the National Assistance Act 1948. v) A child without accommodation is a child in need (See: sections 17, 20 and schedule 2, paragraph 10 of the Children Act 1989). Furthermore, in performing its duty the authority is required to promote family life. (See: schedule 2 paragraph 10 in particular, and the qualifying words to section 20). vi) Separation of mother and child would be an interference with private or family life, which would require an Article 8(2) justification: J v The London Borough of Enfield [2002] EWHC Admin 735;Anufrijeva v London Borough of Southwark, [2004] QB 1124 CA 54 at para.43. vii) The offer of tickets back to Jamaica would only be appropriate on the basis that the authority were satisfied that the children would cease to be in need and this assessment involves detailed and circumstantial inquiry: (See: M v Islington at paragraphs 46 and 49). Furthermore they would have to act in light of the Claimant’s convention rights.[9]From the above it is submitted: i) On 18th May 2006, the children were in need. In the absence of the parents being able to provide accommodation, by virtue of Section 20 the local authority must do so. Moreover, the local authority is under a duty to enable their mother to live with them. To separate them from the mother would require justification under Article 8(2) of the ECHR. Additionally, as the children were in need, the Defendant was obliged to carry out an assessment (in the form of a fresh assessment) of their needs under the Children Act and a human rights assessment. The assessment process must meet the requirements identified by Buxton LJ at paragraphs 46 and 49 of his judgment in R (M) v Islington LBC [2005] 1 W.L.R. 884. No point is taken however on the issue of the children’s citizenship. The absence of a lawful Children Act assessment and human rights assessment is, it is submitted, fatal to local authority’s case. ii) This assessment must be done before any decision can be taken to discharge their duty by offering tickets to the mother to enable her to return to Jamaica. The assessment has not been done. The original assessments were irrelevant as they were written on the premise that the children were not in need. The “Islington” case lays down the test of what they should do, when considering return to Jamaica. iii) The cases of R(Kimani) v Lambeth LBC [2004] 1W.L.R. 272 and R (Grant) v Lambeth LBC [2005] 1 W.L.R. 1781 relied on by the Defendant can be distinguished. In the former the issues before the court were different and in the latter an unchallenged assessment had been made that it would be in the interests of the children to return to Guyana, the only issue being the power to provide a ticket under the Local Government Act 2000. iv) That being the case, the decision on 18th May 2006 to stand by the decision of 3rd May not to provide further support is unlawful, perverse and irrational. v) Further it is submitted that the fact that the Defendant purported to carry out a further exercise of investigating Article 8 rights is itself an implied admission that the decision of 3rd /18th May to cease support, did not address or address sufficiently Article 8 issues and as such was defective. Lambeth should have either stood by its decision or withdrawn the decision and approached the issue afresh. vi) The Defendant erred in law in identifying what questions needed to be answered. The issue they were required to investigate was whether accommodating the mother with her children could or should cease having regard to the obligation to promote family life (See sections 17, 20 and schedule 2 paragraph 10 of the Children Act 1989), Article 8 of the ECHR and the human rights exception in schedule 3 to the Nationality Immigration and Asylum Act 2002. This is not the question it asked itself, therefore the present decision of the Defendant to stand by the original decision was wrong in law.

DEFENDANT’S SUBMISSIONS

[10]It is accepted that on 18th May 2006 the children were in need. This situation had been foreshadowed in the assessments and the options were set out should it occur. Relying on the case of R (G) v Barnet LBC [2004] 2 AC 208 HL, it is not accepted however that there is a duty to house the children under section 17. The section does not impose a mandatory duty to take specific steps to satisfy the assessed needs of the child in need (paragraph 135). There is a power to do so but not an obligation. A failure to provide accommodation under that section, save in very exceptional circumstances, cannot be said to be unlawful. The Defendant’s policy of encouraging families to be resourceful and self-reliant is not unlawful. Paragraph 10 of Schedule 2 of the Children Act 1989 does not apply when Section 20 accommodation is provided, but applies when the authority is considering what services to provide under Section 17. (See: G at paragraphs 118-9) In any event it is a qualified obligation. The effect of the Claimant’s submissions is that she is attempting to turn a target duty into an absolute duty.[11]Furthermore, it is contended that Article 8 does not oblige the Defendant to use its powers under s.17 of the Children Act. The Claimant would have to show that there is a positive duty on the Defendant to act to secure and pay for accommodation and essential living expenses under section 17(6) to enable the claimant and her children to live together. No such duty has been held to exist.[12]In any event, the authority had offered to provide services to the children under section 20. This would involve attempting to house the children with relatives, using a financial incentive or failing that, putting the children with foster carers, but with full access available to the Claimant and with the Claimant still having full parental responsibility for the children and the power to withdraw them from care pursuant to section 20 (8) of the Act.[13]There was no need for a fresh assessment on 18th May as the assessments had already been carried out and had anticipated and taken into account a situation where the Claimant might be without accommodation from the local authority and a situation where the children might be in need. The assessments are living documents, and the authority has since that date in May given further consideration to the situation but remained of the same view. The submission that no such assessments have been done is without foundation therefore.[14]The Defendant, during the course of the assessments, considered the options available to the Claimant. The decision had to have regard to a number of factors: its duties and responsibilities; the factual position in relation to the Claimant and her children, taking into account Convention rights; the finite resources of the authority; the more pressing needs of others in relation to those resources; and the state’s responsibilities in relation to immigration control.[15]Counsel for the Defendant relies on a number of authorities to establish the appropriate legal background against which the decision is to be seen:• The conclusions in paragraph 55 of R (Mahmood) v SSHD [2001] 1 W.L.R. 840based on Lord Phillip’s MR (as he was then) analysis of the case law of the European Commission and Court of Human Rights as to the relationship between the potential conflict between Article 8 rights and the enforcement of immigration controls.• Paragraph 38 of the above case, dealing with what should be the courts approach to review of an executive decision: “The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it was permitted by law – in this instance the Human Rights Act 1998. In performing this exercise the court has to bear in mind that, just as individual states enjoy a margin of appreciation which permits them to respond within the law, in a manner which is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention….”• Too much reliance cannot be placed on the concession made in R (J) v. LB Enfield [2002] EWHC 432 (Admin), paragraph. 48, that on the facts of that particular case, the separation of mother and child would constitute an infringement with the right to family life under Article 8(1), as it is not clear from the facts why the concession was made. It is submitted that at the time of the above case, Section 17(6) of the Children Act had not been amended to include accommodation; no issue was raised about the Claimant being unlawfully in the UK and being able to return to Ghana. In paragraph 48 of Kimani the Court of Appeal found that the case of J did not assist them because there was no issue about whether the Claimant could return to Ghana; additionally, Schedule 3 to the 2002 Act was not in force then.• Paragraph 24 of Kimani sets out the objective of Schedule 3 of the Act, namely to discourage those who can be expected to look elsewhere from entering and remaining in this country and consuming its resources. Reliance is placed on paragraph 49 of the judgement for the proposition that there would be no impediment to the Claimant returning to Jamaica and no infringement of her Article 8 rights. Whilst it is accepted that there are other authorities where the test is not so clear cut, it is still submitted that the Defendant was entitled to find that she could return to Jamaica with the children.• Paragraph 24 of R (M) v Islington LBC, [2005] 1 W.L.R. 884is relied on for the proposition that i) Article 8 does not create a direct right to enter or remain in any particular country and ii) if family life can be reproduced in the country of removal, it is difficult to see how Article 8 bites, as it creates no right to enjoy family life in one country rather than another. Dealing with the paragraphs of the judgement relied on by the Claimant (46 and 49), it is submitted that the Defendant was confident that the Article 8 and other rights of the children or the Claimant would not be infringed by her return to Jamaica and that the children would cease to be in need• Paragraphs 29-31 of R (Grant) v Lambeth LBC [2005] 1 W.L.R. 1781 establish the proposition that the threshold to be passed in successful reliance on Article 8 is high; that Jamaica is not an unknown land being a country to which people both willingly and less willingly return. The offer of tickets for the Claimant’s return to Jamaica with her children has safeguarded her Article 8 rights, particularly in the light of the fact that she has no right to be accommodated in this country.• Relying on the cases of Kimaniand Grant, it is submitted that Article 8 is not really engaged, as the Claimant is merely saying that she prefers to live in this country with her children rather than Jamaica. It is pointed out that at no time has she ever raised any real convention reasons as to why she cannot return to Jamaica. The conclusions of the assessments have never properly been challenged at any time. She simply states that her children are British and she wishes them to be brought up in this country.• The court should be wary of “over zealous textual analysis” of the assessments: LBC Lambeth v. Ireneschild [2007] EWCA Civ 234 at paragraph 57.[16]Turning to the question of the adequacy of the assessments and the criticisms made by the Claimant, Counsel for the Defendant submits the following:• The assessments were thorough; the relevant matters were set out and the conclusions and decision were based on those factors.• The view formed that the Claimant could return to Jamaica with the children was based on enquiries they had made as well as information in their possession about Jamaica. The assertion that the Claimant could return to Jamaica was never really challenged and no reasons were given for why this conclusion was wrong. There is a reference by the Claimant to serious problems for the children but they are unspecified. The Claimant has not disputed the finding that she could get housing, welfare and/or a job on return.• The Claimant and her legal advisers have known since the assessments were served in early February 2006 what the issues were and yet have not sought to challenge them either in correspondence or using the statutory complaints procedure.• Enquiries into the relationship between the father and the children show that the relationship is superficial and likely to diminish with time, because the children have no contact with the father. There are means of communication even when abroad which could be fostered, should there be a change in attitude. There is therefore no breach of his or the children’s Article 8 rights.• The assessments did envisage the situation of the children being in need and addressed it both in relation to this country and to Jamaica. The options were set out, namely placement with the father or relatives; return by the Claimant to Jamaica and, failing that, taking them into voluntary care. If, however, the Claimant refused any of the options and the effect was that the children would be on the streets, then the Defendant would have to consider its duty and powers to institute formal care proceedings.• The assessments need to be looked at against the background of the lack of cooperation by the Claimant, her ex-husband and his relatives. The Claimant declined to provide social services with the children’s father’s phone number; the father failed to appear for appointment/s made despite having received the correspondence requesting a meeting; the relatives would not assist the Defendant and the Claimant gave only limited information.• The conclusion that the Claimant was able to turn to others for support was a proper one based on the fact that up until January 2006 the Claimant was declining to accept the £35 per week subsistence payment, claiming that a) it was too little and b) that it was demeaning. Despite this, she was able to live without this assistance. She has more recently been in receipt of benefits by virtue of the children’s status. Despite many requests for information as to the source of the support, no explanation has been forthcoming. (Pages 195,207,211,214)[17]In the circumstances, and relying on the words of Lord Brightman in the case of Puhlhofer v. Hillingdon LBC [1986] AC 484 at 518 as endorsed in Ireneschild at paragraph 44, cited below, it is submitted that the decision complained of is not unlawful, perverse or irrational. “ Parliament intended the local authority to be the judge of fact…… great restraint should be exercised by giving leave to proceed to judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in this case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity….. Where the existence or non existence of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

DISCUSSION AND FINDINGS

[18]A number of questions need to be considered in order to determine this application. I will deal with them in turn.

Were the children in need on 18th May 2006?

[19]The answer to this question is without challenge. It has been conceded by the Defendant that the children were in need on 18th May 2006 when they were evicted from the property in which they were living. I proceed on that basis therefore and answer the question in the affirmative. Was the Local Authority under a duty under Section 17 of the Children Act 1989 to provide support by way of accommodation and subsistence to a) the children and b) the Claimant?[20]The Claimant relies on Section 17 of the Children Act and asserts that under that section, given that the children have been found to be in need, the local authority must accommodate them, and in order not to breach their Article 8 rights, the Claimant must be accommodated with them under the power conferred in Section 17(3). Section 17(1)(2) (3) and 17(6) of the Act reads as follows:
“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) – (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 1 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.” … (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include [providing accommodation and]4 giving assistance in kind or, in exceptional circumstances, in cash.”
[21]I see nothing in that section alone which imposes an absolute duty on the local authority to accommodate the children or the Claimant. It is clear from the analysis in the case of G, that no such mandatory duty arises under the section. (See: in particular Lord Hope of Craighead at Para. 91 and Lord Scott at Para. 135). I go on to consider whether there is any other section, which imposes such a duty.[22]Section 20 (1) of the Act reads as follows:
“(1) Every local authority shall provide accommodation for any child in need 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.”
No other provision has been drawn to the court’s attention to suggest that the Defendant was under a duty to accommodate both mother and children.[23]It follows by virtue of Section 20, that the authority has a duty to act in certain situations where a child is in need. The question is, what did the local authority do as a result of accepting that the children were in need? It offered to accommodate the children pursuant to their duties under section 20. This offer was declined. (Page 259) This is against a background of the Claimant being a person who has no right of residence in this country. Following the granting of the injunction and further assessment by the Defendant, attempts were made in line with the steps proposed in the January assessments to contact a) the father to see what arrangements could be made and b) the relatives to see what support they could offer. Their attempts proved fruitless, because i) the father had not responded to correspondence from the Defendant (Page 20; Reid page 120; Strachan-Brown Page 3); ii) the Claimant declined to give the social worker the phone number of the father (Reid, page 120, Strachan- Brown, Page 3;); iii) the relatives declined to engage with the social worker (Op cit.). As to the other option envisaged, it is clear that the local authority is prepared to fund the Claimant’s ticket for return to Jamaica providing they were confident that by so doing the children would cease to be in need. Should the Defendant have exercised its powers under Section 17 to accommodate both the children and the Claimant together?[24]In the light of the Claimant’s refusal to have the children taken into voluntary care by the Defendant, given the Defendant’s duty under section 20 and the duty to avoid a breach of the parties’ Article 8 rights, was the Defendant under a duty to accommodate the children and the Claimant together pursuant to their powers under Section 17 or if not under a duty, should they have nevertheless exercised their discretion to do so? The answer to these questions depends to a large extent on the facts and conclusions in the assessments, and to those assessments I now turn.

The assessments

[25]The first issue in need of determination relates to the Claimant’s submission that the Defendant as of 18th May should have carried out new assessments. The Claimant contends that the original assessments were irrelevant because they were prepared on the basis that the children were not then in need. The assessments, it is submitted, were merely identifying how the need could be avoided. I do not agree. It is quite clear from the documents and the letter of 3rd May that a situation was envisaged where the children might become in need. (See: pages 132-3 paragraphs. 2-3 and 8, in particular paragraph 3; replicated at pages 141 -2). The options and the way forward were considered. Moreover, the assessments are not “set in stone” and may be varied if there is a change in circumstance. It is therefore a “living document.” Since the injunction was obtained on 18th May 2006, there has been further consideration/assessment by the Defendant of the situation, albeit I accept that the Claimant contends that the wrong issues were addressed. I will return to that issue in due course.[26]Having found that there was no need for a new assessment, in order to determine whether the Defendant should have exercised its power under Section 17(3) and (6), I will look at the sufficiency of the assessments, first, in relation to the information provided under the headings contained in the documents, second, in relation to the consideration of the “need” of the children should they go to Jamaica with their mother and third, in relation to the consideration given to the convention rights of the parties and the duties of the local authority in that respect.[27]As has already been noted, three assessments were carried out, one in relation to each child under the Children Act 1989 and one in relation to the Claimant. There has been further consideration of the case as set out in the statements of Reid and Strachan-Brown. It is to be noted that there has been no discrete challenge to the conclusions of the January assessments in the application for judicial review, nor was the statutory complaints procedure invoked when the assessments were served, despite invitation by the Defendant, through its lawyers, to the Claimant and her lawyers, to make any observations.[28]Dealing with the assessments generally, I find that appropriate and sufficient information has been provided in relation to the issues to be addressed under the relevant headings in the forms. These details are amplified in the statement of Strachan-Brown, the author of the assessments.[29]I turn next to consider whether the needs of the children had been properly considered in the light of the Defendant’s finding in the assessments that the Claimant had the option of returning to Jamaica with her children.[30]Counsel for the Claimant relies on paragraphs 46 and 49, of the judgement of Lord Justice Buxton in the case of M, paragraph 49 in particular, for the proposition that no or no sufficient enquiries had been made before the offer to pay the fare was made about the need of the children were they to go to Jamaica. The relevant extract relied on reads as follows: “Islington would have to bear three considerations in mind before it could lawfully discharge its Children Act duty by an offer of tickets rather than by providing support, including accommodation, in the United Kingdom. First, it would have to be confident that the child will cease to be “in need” if removed to Guyana. Wilson J, who has unrivalled experience in these matters, pointed to the detailed and circumstantial enquiry needed in this case, none of which appears to have taken place. Second, the various parties’ Convention rights must be respected in any action taken under the Children Act, just as they are relevant to putative action under the Regulations. The considerations set out in §46 above remain directly in point. Here again, because what is in issue is the state’s positive obligation under Article 8 of the Convention to protect family life (see for instance Marckx v Belgium Case 6833/74 at §31), Islington would have to act in the light of that obligation, and not simply reach a decision that is not Wednesbury unreasonable. Third, Islington would have to bear in mind the implications of seeking to remove a British citizen from the United Kingdom, as indicated in §30 above”.[31]The Claimant does not rely on the third ground but submits that the Defendant has failed to make the necessary detailed and circumstantial enquiry in order to be “confident” that the children will cease to be in need if removed to Jamaica. The Claimant contends that the Defendant relying on paragraph 49 in the case of Kimani, has used the wrong test, namely “no impediment” to the Claimant returning to Jamaica.[32]The words of Buxton LJ have to be considered in the light of the particular facts of this case. The facts of M are more fully set out in the judgement of Wilson J (CO 398/03, 5th June 2003). There is no suggestion in M that the social workers were obstructed in any way from obtaining further information about the Claimant’s family situation. On the contrary, the social services in that case were provided with the contact details of the extended family in Guyana, but did not pursue those enquiries. The Applicant had told social services that her very elderly and ill mother lived with her brother and his family, that she the applicant would not be able to get work in Guyana, but even if she did, there would be no-one to look after child. In this case, the social worker made such enquiries as she could and obtained as much information as the Claimant chose to give. Even now, when there is a statement from the Claimant in these proceedings, she has not elaborated as to why it would not be possible for her to live in Jamaica with her children, given that her family, namely her mother, two older sons and extended family are there. Her real case is that she wishes her children to be brought up in this country and that she also wishes to stay in the country. (Pages 14-17)[33]Turning to the findings with regard to the welfare system in Jamaica, it appears that the Defendant is aware of the system existing in Jamaica. Indeed, Mr McGuire himself, when dealing with whether social workers may sometimes have to go abroad in order to pursue enquiries, said this (not an exact quotation) “It is not suggested that the social workers had to go to Jamaica, but sometimes they may have to go abroad. Most local authorities will have a database and have a great deal of knowledge of what is likely to happen to someone in Jamaica, but sometimes they will have no idea at all, if, for instance we are talking about a village in Angola, where they might need to go abroad for further information”. The Claimant has not really disputed that welfare benefits and education are not available nor that she would not be able to work in Jamaica, as it is clear that she has the capacity to work, having worked in this country.[34]From the information available (including the evidence of the Claimant’s resourcefulness, having declined payments from the Defendant) and in the absence of any evidence to the contrary, the Defendant, in my opinion, was entitled to be “confident” that the children’s needs would be met by accommodation with the family and/or as a result of the receipt of benefits or by virtue of the Claimant getting a job or by a combination of factors and that the children would have access to education. There is no basis for the suggestion that they would be destitute once they disembarked from the plane in Jamaica. To put it another way, save for the issue of the children’s and their father’s Article 8 rights, there was no impediment to the Claimant going to Jamaica.

Article 8

[35]I turn to the Article 8 rights. The Claimant has an outstanding application for leave to remain in this country, apparently based on Article 8. Despite the Defendant asking on a number of occasions for further and better particulars of the application so that it can be considered as part of the assessment, the Claimant’s lawyers have failed to provide such particulars. (Pages 168,174,176,177,182,184). It is difficult to conceive what properly arguable Article 8 claim exists. Indeed the Defendant argues that Article 8 is not engaged at all. However, I prefer to approach the case on the basis of whether the Defendant has given consideration to such rights in any event. I take the view that the Article 8 rights of the children, the Claimant and her ex-husband have been properly considered by the Defendant because they have found that: i) Article 8 does not confer a right of abode in a particular country (Paragraph 24 of R (M) v. Islington LBC, [2005] 1 W.L.R. 884); ii) Article 8 does not confer an absolute right that all family members must live together (R (Mahmood) v. Home Secretary); iii) The relationship between the children and their father is almost non-existent, but in any event contact can be maintained from abroad if desired; iv) The Claimant does have the option to go to Jamaica together with her children.[36]I return to the question posed in paragraph 24 above, namely, was the Defendant under a duty to exercise its powers under Section 17 or if not under a duty should it nevertheless have accommodated the Claimant together with her children? In the circumstances of the case, the answer is in the negative because a) the Defendant had considered and acted upon its duty under Section 20 by offering accommodation to the children; b) it was the Claimant who declined the offer; c) the Defendant sought the engagement and assistance of the father and the relatives but was unable to progress these options due to the lack of co-operation of the parties including the Claimant; d) the Defendant considered the “need” of the children under the option of the Claimant’s returning to Jamaica; e) the Defendant had considered the Article 8 rights of the Claimant, her children and their father with regard to return to Jamaica and found that they would not be breached; f) the Defendant had to consider the priority needs of others ( such as disabled children, children at risk of abuse, children that act as carers, looked after children, children and adults with mental health needs, those with special needs and the elderly) in the light of their finite resources g) the Defendant’s powers were never intended to enable it to act as an alternative welfare agency in circumstances where Parliament had determined that the Claimant should be excluded from mainstream benefits; h) the Defendant, when deciding how to exercise its powers, is entitled to have regard to the state’s entitlement to control the entry of non-nationals into its territory and to determine to what benefits they are entitled, as evidenced from schedule 3 of NIAA. The Defendant was entitled to take the view therefore that the Claimant could return to Jamaica with the children and that the need would cease to exist. To that end they would fund the cost and related expenses of so doing.[37]For the sake of completeness, I mention the submission which places reliance placed on the cases of J and Anufrijeva. Had I not found that the option to return to Jamaica was available and that the Defendant has offered to pay the fare and related expenses, I would have had to consider whether, in order to avoid a breach of Article 8, the Defendant had to accommodate the children and the Claimant together. In my judgement, one cannot simply rely on short extracts from a couple of cases to establish the principle that separation of the mother and children is automatically an infringement of Article 8 rights. Even if it were, there may be justification. Each case needs to be examined in the light of its own particular facts. In this case the court has been told that that the Claimant would have full and unimpeded access to the children who would be put in foster care, should they not be able to persuade the father or relatives to accommodate them. Separation would be limited and would in effect predominantly be during sleeping hours. Secondly, if under Section 20, the Claimant would still retain parental control and could withdraw her children from care whenever she pleased. It is against those facts that infringement of Article 8 rights would need to be considered. In the light of the finite resources, the lack of special need of the children and the Claimant, the priorities of others in the light of those finite resources, the lack of attempts by the Claimant to make other arrangements and consideration of the Claimant’s immigration status, separation may well be justified. Moreover, it can be said that, given the conditions in which the Claimant and her children have been living, although there is no specific evidence of what situation the children would be placed in, the chances are that the conditions in foster care would be better and that the children would have more to occupy themselves with than presently. If the Claimant were to continue to refuse the offer under Section 20 and decline to return to Jamaica with her children, then the Defendant in order to comply with its duties may have to consider instituting care proceedings. In that event, the decision of what is in the children’s best interests would be for another court and not this one.

Other submissions

[38]In paragraph 25 I noted that the Claimant had submitted that the Defendant had applied the wrong test when indicating in the AOS that it wished to further consider matters in order to re-assess the situation. The issues to which further consideration were to be given were: the extent to which there can be a breach of Article 8 rights given a person in the Claimant’s immigration position can only raise an Article 8 claim for support in an exceptional case by showing that it is seriously arguable that the immigration laws are incompatible with the Convention; the relationship that the Claimant’s children have with their father and the relevance of this on Article 8 rights and, finally, the Claimant’s alternative source/s of support and funding and hence the extent to which the Defendant could be required to provide support in order to avoid any breach of Article 8.[39]It is submitted that, insofar as the first issue was considered, it was the wrong question and legally irrelevant, and thus, to the extent that it is considered important, the decision is tainted by the error. In relation to other two questions it is said that, whilst relevant, the Defendant has jumped straight to human rights issues. It should have been focussing on how the needs of the children were to be met under the Children Act. In the light of my findings, based as they are on the relevant sections of the Children Act as set out in the Claimant’s submissions and including the human rights issues, it is not necessary for me to consider this aspect any further.[40]A further point is made that because the Defendant did ask for time to consider the three questions, that of itself was an implied admission that the decision on 3rd May was defective, in that it did not sufficiently address or address sufficiently the issue. I do not accept this proposition. As has already been noted, the assessment is a document that is not set in stone. It may be changed or re-affirmed in the light of consideration of further representations. The fact that the authority is prepared to consider other aspects and re-assess the situation does not render the decision defective.[41]It follows from the foregoing and having very much in mind the observations of Lord Brightman as quoted in the case of Ireneschild at paragraph 44, in my judgement there are no grounds in this case for exercising the court’s discretionary power, finding as I do that the decision of the Defendant was not unlawful, perverse or irrational. This application for Judicial Review is therefore dismissed.

Cited in 9 later judgments