2013 05 Children

Saturday 1 June 2013

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R (on the application of T) v (1) Secretary of State for Justice (2) Birimingham Magistrates’ Court [2013] EWHC 1119 (Admin) (DC) (Sir John Thomas (President), Cranston J): A 13 year old boy with autism, ADHD and a severe impairment of intellectual functioning voluntarily attended a police station, knowing he had breached a bail condition. He was arrested and subsequently released into the custody of a contractor employed by the First Defendant to convey defendants to court and to detain them there. The claimant was taken to the Magistrate’s Court. The cells used for under 18s were unavailable as they were being refurbished and he was kept in a cell with a glazed door so he could be observed by staff. When his solicitor arrived, he was taken into an interview room, and whilst being taken there, he passed at least two adults who had been takein from their cells by other detention officers and also passed cells containing other adults. He became distressed. He was later re-bailed. It was contended that the manner in which the Claimant was kept in custody was in breach of s31, Children and Young Persons Act 1933 which provides for the separation of children and adults in custody. The claim succeeded on the s31 CYPA point, but failed on an article 8 argument and the argument under s149, Equality Act 2010. Click here for judgment.

R (SM and Ors) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) (Holman J): These linked claims concern the impact of section 55 Borders Citizenship and Immigration Act 2009 upon the consideration by the Secretary of State of applications by children, made outside the scope of Immigration Rules, for leave to remain in the UK. All claimants applied for indefinite leave to remain; all were granted discretionary leave to remain for 3 years. They argue that had the Secretary of State correctly applied s55, BCIA 2009 and lawfully considered their applications she would, or at any rate might, have granted them the requested ILR. Two issues were identified in the case: (i) Is the policy on the grant of discretionary leave capable of being read / applied in a way compliant with s55, BCIA 2009? If not, the policy is not lawful, and the decisions under review should be reconsidered. (ii) if the plicy is capable of being read and applied in a way compliant with s55, BCIA 2009, did the actual decision maker fail to do so? If so, the decision should also be reconsidered. (iii) if the policy is capable of being read / applied in a way compliant with s55, BCIA 2009 and the decision maker did not fail to read / apply it in that compliant way, then the decisions should not be interfered with subject to any irrationality challenge. Holman J held that the policy on discretionary leave is not compliant with s55, BCIA 2009 as it effectively precludes case specific consideration of the welfare of the child concerned in the decision making process and the policy is applied in a blanket way save for in exceptional cases which impinges on any proper consideration of individual cases on their own facts. Click here for judgment.

Nb It is understood via counsel for the Claimant that the time scale for the Secretary of State to appeal this judgment has expired (on 22 May 2013) and the Secretary of State has not appealed this judgment.

R (MN and KN) v LB of Hackney [2013] EWHC 1205 (Admin) (Leggatt J): The claimants challenge the defendant’s refusal to provide accommodation and support to them as children with their family pursuant to s17, Children Act 1989. The family are Jamaican nationals unlawfully present in the UK. Their application for leave to remain (after overstaying) was rejected by the Secretary of State but a request was made for the decision to be reconsidered, or failing that, for a decision to be taken to give directions to remove the family from the UK (as that is a decision which gives rise to a right of appeal under s82, NIAA 2002). No decision has been made by the Secretary of State for the Home Department. The defendant carried out needs assessments and concluded that the family were not destitute because they managed without state support for 10 years so clearly had a support network of sorts. Dismissing the claim, Leggatt J held that there was nothing irrational about the conclusion that the children were not ‘in need’; doubt was raised about whether the case of R (KA) v Essex City Council [2013] EWHC 43 (Admin) was correctly decided (KA being subject to an appeal). Click here for judgment.

Nb It is understood that the claimants intend to apply for permission to appeal against this decision.

A series of age dispute claims of note (all fact-specific):

R (MR) v Derby City Council AAJR [2013] UKUT 255 (IAC) (Upper Tribunal Judges Storey and Peter Lane): Click here for judgment.

R (SO) v LB of Barking and Dagenham AAJR [2013] UKUT 256 (IAC) (Upper Tribunal Judges Allen and Goldstein): Click here for judgment.

R (MK) v Wolverhampton City Council AAJR [2013] UKUT 177 (IAC) (Upper Tribunal Judge Lane): Click here for judgment.

R (GE) v SSHD and Bedford Borough Council (extempore), 22 May 2013 (CMG Ockelton): The Claimant is a young person who on arrival in the UK was detained by the SSHD. She claimed to be a child. Her age was disputed. The SSHD sought to return her to Italy under the Dublin II regulations. She contended that as a child, she was not removable under article 6 of the Dublin II regulations. Bedford carried out an assessment of her whilst in detention (an application for her to be released into the community the assessment having failed). The removal part of the claim was stayed behind the age dispute. GE challenged the age assessment and subsequently was released into the community. The judge granting release refused to release her into the care of Bedford. She was provided with asylum support accomodation by the SSHD. Permission was granted to challenge the age assessment. At trial, the Judge struck out the claim on a preliminary argument made by Bedford that as the Claimant had never been in the care of the local authority, she could not, now 18 on her own case, contend that any duties under the Children Act 1989 were or continue to be owed to her. Thus there was no utility in making a finding as to her age. Judgment not available yet.

nb This is an extremely bizarre and surprising judgment as in effect it permits a local authority who carries out an unlawful age assessment to rely on its own unlawful acts to seek to discharge Children Act 1989 duties. It is a decision which contradicts the dicta of the Supreme Court in R (A) v LB of Croydon [2009] UKSC 8 [2009] 1 WLR 2557 as well as the well-established principle that reliance by a public authority cannot on its own unlawful conduct to seek to discharge a duty unlawfully is an abuse of power: see R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546.

Other matters:

The Committee on the Rights of the Child has issued a new General Comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (article 3, paragraph 1) (published 29 May 2013). The essential points are as follows:

Best Interests of the Child: A Right, A Principle & A Rule Of Procedure

1. Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child,1 and applies it is a dynamic concept that requires an assessment appropriate to the specific context.

2. The concept of the "child's best interests" is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child (para. 2), the Convention on the Elimination of All Forms of Discrimination against Women (arts. 5 (b) and 16, para. 1 (d)), as well as in regional instruments and many national and international laws.

3. The Convention also explicitly refers to the child's best interests in other articles: article 9: separation from parents; article 10: family reunification; article 18: parental responsibilities; article 20: deprivation of family environment and alternative care; article 21: adoption; article 37(c): separation from adults in detention; article 40, paragraph 2 (b)

(iii): procedural guarantees, including presence of parents at court hearings for penal matters involving children in conflict with the law. Reference is also made to the child's best interests in the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (preamble and article 8 ) and in the Optional Protocol to the Convention on a communications procedure (preamble and articles 2 and 3).

4. The concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child.2 The Committee has already pointed out3 that "an adult's judgment of a child's best interests cannot override the obligation to respect all the child's rights under the Convention." It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the "child's best interests" and no right could be compromised by a negative interpretation of the child's best interests.

Click here for link to full text.

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