2013 02 Children

Friday 1 March 2013

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R (A) v LB of Newham [2013] EWHC 344 (Admin) (Mr. John Powell QC): The Claimant and her mother applied for indefinite leave to remain on the basis of compassionate grounds, including arguments relating to the Claimant's health needs arising from sickle cell anaemia and access to better treatment in the UK, the Claimant child's family / private life in the UK, her father being a Portuguese national residing in the UK and working, the mother's long-stay in the UK. The UKBA in refusing the application considered Article 3, ECHR even though it was not raised by the Claimant's mother in the application for leave to remain. On consideration of the UKBA refusal letter, the local authority contended the Claimant's mother was an 'asylum seeker and therefore the local authority was prohibited from providing support and accommodation under s17, Children Act 1989 to the Claimant and her mother by operation of s122, Immigration and Asylum Act 1999. The Court held otherwise, finding that the Claimant's mother had not made a claim for asylum / article 3 and thus s122, IAA 1999 did not apply to the Claimant and her mother. The local authority was not prohibited from providing s17 support to the Claimant and her mother. (Judgment link to be forthcoming once available on Bailli.)

The Claimant was represented by Shu Shin Luh of Garden Court Chambers, instructed by the Coram Children's Legal Centre.

Note: This case is yet a further avenue in which the local authority has sought to argue that the dicta in Clue v Birmingham CC could be disapplied. See another recent case of R (KA) v Essex CC [2013] EWHC 43 Admin, reported in last month's update.

Pacha Khan Durani v Secretary of State for the Home Department [2013] EWHC 284 (Admin) (Walker J): An age assessment carried out by a local authority on a foreign national had obviously not complied with the principles for such assessments identified in R (B) v Merton LBC [2003] EWHC 1689 (Admin), and the Secretary of State for the Home Department had not been entitled to rely on the assessment in concluding that the foreign national was of an age suitable for detention. His detention had therefore been unlawful. Click here for judgment.

The Claimant was represented by Shu Shin Luh of Garden Court Chambers, instructed by TV Edwards LLP.

Note: This is the first occasion the High Court has considered the lawfulness of the immigration detention of an unaccompanied minor post- R(AA) v Secretary of State for the Home Department [2012] EWCA Civ 1383. The arguments in this case, similar to those in J v SSHD [2011] EWHC 3073 (Admin) and AAM v SSHD [2012] EWHC 2567 (QB) relied on a line of argument as to the lawfulness / Merton-compliance of the age assesmsent relied upon by the Secretary of State, an argument which was not open to the appellant in AA v SSHD. Thus where a challenge to the lawfulness / Merton-compliance of an age assessment can be argued, the judgment of AA v SSHD does not affect this line of argument.

R (AT and ors) v LB of Islington [2013] EWHC 107 (Admin) (Mr. Philip Mott QC): A challenge to the reasonableness of an assesmsent of the needs of a family with two young children, one of whom had autistic spectrum disorder and the other with Down's syndrome could not succeed. The assessment was reasonable. The complaint was in reality about the suitability of the family's current accommodation and their need for permanent housing. This is not an outcome that necessarily must follow from the assessment. Click here for judgment.

R (Kebede) v Newcastle City Council (15/2/2013, extempore) (Mr. Timothy Straker QC): Local authorities had a duty rather than a discretion under section 24B(2) and s23C(4)(b) of the Children Act 1989 to give a former relevant child assistance to the exetnt that his educational needs required it, and that might include the payment of university tuition fees. (Judgment not available from free resources. Will be posted when available).

Note: This is an interesting further development following the case of R (Sabiri) v LB of Croydon [2012] EWHC 1236 (Admin) whereby the High Court determined that the Children Act 1989 s.23C(4)(b) was sufficiently wide to cover assistance by way of financial contribution to the cost of accommodation in connection with the receipt of education. The claimant in Sabiri was represented by Stephen Knafler Q.C. and Irena Sabic of Garden Court Chambers.

Children's Rights Alliance for England v Secretary of State for Justice and Ors [2013] EWCA Civ 34 (Laws, Sullivan and Black LLJ): A claim was brought by the Children's Rights Alliance for England to challenge the Secretary of State for failing to tell young people that they were being unlawfully restrained in secure training centres so that they could seek legal redress in circumstances where the young people were not aware that the restraint techniques were unlawful. Click here for judgment.

Other matters:

  • In the case of MA, BT and DA v Secretary of State for the Home Department [2011] EWCA Civ 1466, in respect of the removal of unaccompanied asylum seeking children under Article 6 of the Dublin II reguluations, the Advocate General (of the CJEU) has issued his opinion in the matter, finding that paragraph 2, Article 6 should not be interpreted to permit a member-state to remove a lone asylum-seeking child to the member-state where s/he first made her claim for aslyum. The opinion of the A-G considered the effect of best interests of a child in determining responsibility for assessing asylum under Dublin II. Click here for A-G opinion. The appellants were represented by Stephen Knafler Q.C, Kathryn Cronin and Bryony Poyner, all of Garden Court Chambers.
  • On 27 February 2013, the High Court heard a judicial review claim challenging the denial of a legal entitlement to an appropriate adult for 17 year old young people detained in police custody. Judgment is reserved. The case was brought by the children's charity, Just for Kids Law. Further information can be found here.

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