When does a Local Authority have a duty to “look after” a child?
Date posted: 30 June 2016
The Local Authority has a duty to look after a child under section 17 of the Children Act 1989. Section 17 says that:
(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…
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash
Under this section, the Local Authority therefore has a duty to accommodate a child if it is considered necessary in order to safeguard and promote the welfare of the child and the child is considered to be a “child in need”.
In A v London Borough of Enfield  EWHC 567 (Admin) the Court was concerned with a 16 year old girl who had left home without her parents’ consent and had travelled to the Syrian border. On her return, she did not wish to live with her parents as she wished to live in a stricter Islamic environment than that in which her parents lived.
The girl, A, then left her parents and travelled to Bulgaria, Greece and Egypt before returning to the UK and presenting as homeless in the London Borough of Tower Hamlets. Whilst she had been away, her father had sought assistance from the London Borough of Enfield, where the family lived, and sought accommodation for his daughter. The London Borough of Enfield had decided that they did not have a role whilst she was not in the country.
Tower Hamlets assessed A as an Enfield child ‘at high risk due to radicalisation’ and accompanied her back to Enfield who concluded that she was not ‘in need’ as she was able to return to her parents’ property.
Following this, A did not return to her parents but instead stayed with a number of friends and it is arguable that she became ‘increasingly unsafe’ and further radicalised. During this time A underwent a Nikah (a preliminary ceremony to a Muslim marriage) with a man in his early thirties who was known to the authorities due to his radicalised beliefs.
Again, Enfield stated that they were unable to assist and could not place children in independent accommodation. They did not assess A to be a “child in need”.
A then sought to travel to Bulgaria with a large amount of money and was detained at Heathrow.
A challenged Enfield’s decision that she was not a child in need by way of judicial review and Walker J considered that A needed protection from the risk of harm and ordered that Enfield accommodate A under section 20 of the Children Act 1989 whilst her challenge was on going.
In the High Court, Hayden J held that:
- Enfield had not properly analysed A’s case
- The concept of “in need” covered a wide spectrum of issues
- There is a duty on a Local Authority to promote and safeguard the welfare of the child
- The wishes and feelings of A were important
- The contemplated harm was profoundly serious
- The risks to A as a result of her radicalisation placed her within the reach of section 17
- A’s parents were unable to protect her from the risks and therefore their offer of a home did not remove the Local Authority’s duty
- It was plainly desirable for A to be supported to take decisions for herself which were better informed and rooted in a more reflective analysis
- The reasoning of the London Borough of Enfield was manifestly irrational (that A could return to live with her parents when it was clear that they were unable to protect her)
As a result, Hayden J held that A was a “child in need” and therefore the Local Authority should have provided her with support and accommodation.
There are many recent cases where Wardship has been used to protect a child at risk of radicalisation. When a child is made a Ward of the Court no important step can be taken in the child’s life without the consent of the Court. This includes removal of the child from the jurisdiction. In A’s case, the matter did not reach the level of harm or risk of harm which would have made Wardship a viable option and the question was whether or not she should have been assessed as being a child in need, and therefore supported and ultimately accommodated by Enfield.
Hayden J stated in his judgment that he found it hard to envisage any circumstances where issues of this kind arose and which would not fall within the realm of section 17 and that they would often require more serious intervention. He found that that Local Authority had been wrong not to assess A as a child in need.
This case confirmed that a Local Authority has a duty to assess a child’s needs and provide the range of services to meet these needs. In this case, A required accommodation pursuant to section 20.
By the time that the matter was decided, A was 18. The Court also held that the fact that A was now 18 did not absolve the Local Authority from its discretionary responsibility and therefore A was entitled to be considered for the range of services available to a “former relevant child” (i.e.. a child who had been a child in need). There was also an argument that it was in the interests of the wider public that A was supported.