S.17 Children Act 1989: The Ongoing Duty

In a recent judgment, the Administrative Court has confirmed that a local authority's duty under s. 17 Children Act 1989 is a continuing one, and found that the London borough of Lewisham had acted irrationally in concluding in a follow-up assessment that a mother had the means to provide her children with accommodation such that the children were not in need.

In R (on the application of CO and KO) v LB Lewisham [2017] EWHC (Admin) 1676, the Claimant siblings, aged 8 and 11 years old, challenged the lawfulness of Lewisham's decision that they were not children in need under s.17 Children Act 1989.

The children's mother had been granted limited leave to remain in the UK with a condition that she have no recourse to public funds.  The mother had in the past had support from her sisters, family and friends, her own resources through working, and the children's father, which led Lewisham to conclude that the children were not in need in an initial assessment in November 2016.

In conducting its assessment of the family, Lewisham had concerns about the mother's credibility based on its belief that she was not being truthful about her employment, finances and accommodation. 

Following the initial assessment in November 2016 - which was the subject of an unsuccessful judicial review challenge - the mother's sisters provided statements that they had withdrawn their support for the mother and her children. The father later provided a statement confirming that he could not support them either. 

From March 2017 the children had been staying in unsuitable accommodation with their mother, including hotel rooms and in the A & E department of Lewisham Hospital. However, in Lewisham's  follow-up review in April 2017, it placed heavy reliance on its previous decision and concluded that there was doubt as to whether the mother was truthfully reporting her circumstances. It did not reverse its decision that the children were not in need. 

The claimants challenged the decision on the grounds that Lewisham had:

(1) carried out insufficient inquiry when assessing their needs;

(2) been procedurally unfair when reconsidering its previous decision; 

(3) acted irrationally in concluding that the mother had means of providing accommodation for her children; 

(4) failed to act in line with its statutory duty under s. 11 Children Act 2004 and/or s. 17 Children Act 1989 to have due regard to the need to safeguard and promote the welfare of the children. 

The court found that:

(1) The local authority's duty under s.17 Children Act 1989 was an ongoing one and after the family were no longer in stable accommodation it had a duty to reassess their needs. Lewisham had failed in its obligation both to carry out proper enquiries and to give the mother the opportunity to address the concerns it had regarding her circumstances. The local authority had come to an earlier conclusion that it was not credible that the sisters, who both had large houses, would withdraw their support, but in its subsequent decision no reference had been made to their explanation for their withdrawal. Not taking into account their explanations or the father's statement were serious omissions on the part of Lewisham, as it failed to get a full and accurate picture of the family's situation.  Lewisham had very clear concerns with respect to the children's mother's credibility in the account that she gave of her situation but that did not obviate their need to make further enquiries in order to satisfy their ongoing duty: paragraphs 51-54.

(2) In considering its previous decision, Lewisham should have given the mother a list of all her claims that it believed lacked credibility so that she had the opportunity to provide them with further information. In particular, it was necessary to put to her what the network was that they believed she could now rely upon when making the decision that the children were not in need.  The sisters' and father's statements provided more information than that available when the local authority made its initial decision. Lewisham's failure to provide the mother with the opportunity to address its concerns was procedurally unfair: paragraphs 55-57.

(3) Although it was not sensible for the mother to spend her limited income on hotel accommodation, that did not avoid the question as to whether the children were in need. The accommodation to which the family had access after March 2017 was woefully inadequate and insecure.  Lewisham had fallen into a trap of considering that this was a battle between themselves and the children's mother and that she had an agenda which meant that she was cynically putting her children, who she otherwise cared for, at risk. To reach the conclusion that the children were not in need was irrational: paragraphs 58-61.

(4) The family had been in hopelessly unstable and at times unsuitable accommodation since March 2017. Given that there were no other concerns about the care the mother gave to her children it was in their interest that they were housed together. The family relationship should be maintained, unless there was no other course possible.  The appropriate outcome was for the local authority to provide accommodation. It had not properly ensured that the children were safeguarded since March 2017 and so it had failed in its statutory duty: paragraphs 62-66.

Sam Jacobs of Doughty Street Chambers acted for the Claimants, instructed by Morrison Spowart Solicitors.