2012 11 Children

Saturday 1 December 2012

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E (A CHILD) (Thorpe LJ, Rimer LJ, Baron J) extempore judgment 22/11/2012: A court was not prevented by the Children Act 1989 s100 from making a child a ward of court where the child was accommodated pursuant to section 20, Children Act 1989. In circumstances where a child was s20 accommodated, the lower court was put in a position in care proceedings of being asked to make a full care order (as sought by the local authority), no order or a wardship order. The Court of Appeal held that there was nothing preventing a wardship order from running parallel with s20 accommodation. The effect of s.100 was to prevent a court from making any order which had the effect of requiring a child to be placed into care or under local authority supervision. That outcome could only be achieved by going through the court's inherent jurisdiction. There was nothing either explicitly or implicitly stated within s.100 which prevented a wardhsip order being made where a child was not required to be accommodated but was voluntarily accommodated. If agreement for accommodation ceased, the court would not be taken to be in a position to require the local authority to accommodate or supervise a child.

Note: This judgment is interesting particularly in circumstances where children are cared for voluntarily under s20, Children Act 1989 but have no one who can properly exercise parental responsibility for them. The implication of this judgment could mean that a wardship application could be sought from the Court.

R (on the application of OA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 3128 (Admin) (Silber J): Following refusal of leave to remain in the UK, a claimant challenges a decision of the Secretary of State to certify his human rights claim as ‘clearly unfounded’. The Claimant and his wife came from Nigeria on visitor’s visa with their 4 year old son. They subsequently had two daughters. They overstayed. Removal directions were issued in 2010. The Claimant challenged the removal decision on the basis of his children’s rights under the ECHR Article 8. This was rejected. The Secretary of State subsequently reviewed the decision to take account of the best interests of the children, applying ZH (Tanzania) but refused his representations, finding that removal of him and his son was appropriate. By then his wife and daughter were returning to Nigeria. The Court held that the Secretary of State had arrived at the correct decision in the circumstances. Section 55 BCIA 2009 required the Secretary of State to carry out detailed investigations where there was insufficient evidence about a factor, such as life-threatening illness, that prevented an informed decision from being made. That was not the case here as the Secretary of State had carried out proper and helpful inquiries relating to the educational system in Nigeria. Absent the suggestion that further information could reasonably have been required, the removal directions were correctly issued. Click here for judgment.

R (on the application of AA) v Secretary of State for the Home Department CA (Civ Div) (Laws LJ, Sullivan LJ, McCombe LJ) extempore judgment 06/11/2012: Whilst a judge had been entitled to find that the Home Department's policy on dealing with unaccompanied asylum-seeking children contained a lacuna in respect of the duty to have regard to children's welfare under the Borders, Citizenship and Immigration Act 2009 s.55, he had been wrong to grant a failed asylum seeker who had a corrected age assessment three year's discretionary leave to remain. The appropriate remedy was to direct the Secretary of State for the Home Department to deal with the asylum claim on the basis she would have if the asylum seeker had been correctly assessed as under 18. Citation for High Court decision is [2011] EWHC 3820 (Admin).

KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1420 (Longmore LJ, Davis LJ, Lewison LJ): The appellant asylum seeker appealed against a decision of an Upper Tribunal judge that there was not a reasonable degree of likelihood that K was under the age of 18 at the time a decision to remove him from the United Kingdom was made. He arrived in the UK and applied for asylum on the basis that his father, a member of the Taliban, wanted him to be a suicide bomber and that if he were returned to Afghanistan, his life would be in danger. He claimed to be 15 ½ when he claimed asylum. He was age disputed and an age assessment produced. The Secretary of State refused his asylum claim and refused to accept his age in the light of the age assessment. When he appealed to the Upper Tribunal, whilst the Upper Tribunal found flaws in the age assessment, it also did not accept the expert report and, left only with the appellant’s evidence, found him not credible. The appellant challenged this on the basis that given the finding that the age assessment was flawed, the Secretary of State should not have been entitled to rely on it to refuse his claim. The benefit of doubt principle should be applied in his favour. The Court of Appeal rejected this finding that under the Secretary of State’s policy, ‘Assessing Age’, the principle of the benefit of the doubt is only applicable to an asylum seeking young person claiming to be a child is only to be afforded at an initial stage pending a decision in relation to an asylum seeker’s age. It does not apply once a decision has been made. Click here for judgment.

Note: Query how this case sits with the concept of age being a precedent fact per A v Croydon in the Supreme Court?

R (K) v Birmingham City Council and conjoined appeals [2012] EWCA Civ 1432 (Lord Dyson (MR), Sullivan LJ, McFarlane LJ): The Court of Appeal rejected the submission that a local authority undertaking age assessments for the purpose of the Children Act 1989 would be bound by age assessment conducted by the Secretary of State for the purpose of exercising immigration functions. The Court also rejected the submission that age assessment done by the First Tier Immigration Tribunal bind the local authority in rem. There was nothing the Joint IND-ADSS Age Assessment policy that can be read to bind the local authority. Click here for judgment.

R (on the application of ET) v Islington London Borough Council (Cranston J) extempore 30/10/2012: A judicial review application was brought on behalf of 3 children to challenge an assessment of the Defendant in respect of the risk of harm posed to them by a convicted sexual offender. The High Court considering the test to be applied in a judicial review challenge to a risk assessment concluded that the intensity of a Wednesbury review was heightened in Children Act 1989 cases where the potential consequence of a local authority making an error when assessing the risk of harm posed to children was the sexual abuse of the children. However, applying that higher level of scrutiny, a local authority had conducted a lawful assessment of the risk of harm posed to three children by a convicted sexual offender and of the means calculated to manage that risk.

R (AA) v Secretary of State for the Home Department [2012] EWCA Civ 1383 (Arden LJ, Davis LJ, Baron J): The Secretary of State's power of detention under the Immigration Act 1971 Sch.2 part I para.16(2) was wide enough to permit the detention of a person not established to be a child, notwithstanding that that person subsequently turned out to be a child. Her duty under the Borders, Citizenship and Immigration Act 2009 s.55 to treat the best interests of a child as a primary consideration did not apply. The Court’s assessment of the detention had to consider the material available to the decision-maker at the time of the detention. This judgment is being appealed to the Supreme Court. Click here for judgment.

R (on the application of Kent County Council) v HM Coroner for Kent (North-west District) and Mr. Barry and Mrs. Barry (Interested Parties) [2012] EWHC 2768 (Admin) (Fosket J, Judge Peter Thornton Q.C.): The Court held that a coroner had been wrong to hold that an inquest compliant with ECHR article 2 should be held into the death of a 14-year-old boy who had been assessed as being in need within the meaning of s17, Children Act 1989. Although in the months before his death, he had been known to be vulnerable and at risk of harm, this did not equate to a risk of death. Click here for judgment.

Note: This worrying judgment misunderstands the actual status of the young person who died in custody. He was not only a child ‘in need’ within the meaning of s17, Children Act 1989, he was also someone who the local authority had accepted required accommodation under s20, Children Act 1989 but appeared to fail to comply with this. The operation of s20 means that the local authority assumed a corporate parenting responsibility which attached with it specific duties to safeguard the welfare of the child. Paragraph 49 of the judgment is a misunderstanding of the scope of coporate parenting duties arising from s20, Chidlren Act 1989. There was also a misdirection in law in respect of the test for accommodation under s20(3), muddling it with the threshold for care proceedings. See paragraphs 45-46. It is not known whether the judgment is going to be appealed.

AAM (A Child) (By his litigation friend Francesco Jeff) v Secretary of State for the Home Department [2012] EWHC 2567 (Lang J): The Secretary of State’s decision to detain an asylum seeker subsequently found to be a child was unlawful because the decision relied on an age assessment concluding he was 18 which was not a lawful assessment. The Secretary of State failed to engage with the Merton guidelines when accepting the conclusion of the age assessment blindly. Click here for judgment.

Note: This judgment dealt with aspects of s55, BCIA 2009 but must now be read in the context of the Court of Appeal’s judgment in AA v Secretary of State (referred to above) [2012] EWCA 1383.

JP v Czech Republic; JE-H and IE-H v Australia (Sir John Thomas (President), Globe J): It did not constitute a disproportionate interference with the rights of children under the European Convention on Human Rights 1950 art.8 to extradite a mother to the Czech Republic to serve a short prison sentence where the children's father could look after the children, and to extradite parents to Australia to stand trial for serious crimes where suitable arrangement could be made for the child.

Other matters:

- New regulations to come into force on 3rd December 2012 in respect of children on remand being treated as 'looked after' under the Children Act 1989. Click here for the new regulations. See the correlating primary legislative provisions under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 3, Chapter 3. Click here for the relevant sections.

Note: A practice note on how to understand these new regulations and the implication will be forthcoming. Please note that (quite worryingly and confusingly) the regulations seek to exclude this category of children from specific entitlements under the Children Act 1989, notably ss22C and D.

- The High Court granted permission to a child to bring judicial review proceedings against the Home Secretary and the Commisioner of Metropolitan Police to challenge the fact that 17-year-olds are treated as adults when detained in police custody or subject to plice questioning instead of being treated like all other children. Please contact Just for Kids Law, the solicitors representing the child, for more information.

- There is an ongoing cross-party Parliamentary Inquiry into the Asylum Support System's effect on children. Deadline for written evidence is on 7 December 2012. Click here for more information.

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