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Section 17 assessments: wrong to place a burden of proof on destitute families

In a number of recent cases the High Court has had opportunity to consider the law relating to section 17 Children Act 1989 assessments, particularly in the context of destitute families seeking accommodation and support.   In recent cases, there has, perhaps, been a strengthening of the requirements of procedural fairness: see, for example, R (S and J) v Haringey [2016] EWHC 2692 (Admin).

In R (BC) v Birmingham City Council [2016] EWHC 3156 (Admin), the local authority made boldly the point which often appears implicit in section 17 assessments, namely, that it was for the mother of the child "to persuade the Council of the need for support" [52].  The Court, quite properly, rejected the "suggestion that [the mother] had the burden of proving need" [54].

It is also of note that the judge had "no hesitation"  in rejecting the argument that the family had the alternative remedy of regularising their immigration position.  That might have been the long term solution, but would not meet the child's immediate needs.

54 I reject the suggestion that BC had the burden of proving need. BC has the burden of establishing that there is a ground for judicial review: R v Reigate Justices, ex parte Curl [1991] C.O.D. 66 , but the duty was on the local authority to carry out an assessment.


children act 1989, communitycare, community care & health