2014 01 Children

Saturday 1 February 2014

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Residence Test

The Public Law Project has obtained permission from the Administrative Court to Judicially Review the Government’s “Residence Test” to restrict access to Legal Aid for persons from abroad (click here for details).

R (on the application of J (By his father & litigation friend) W) v Worcestershire County Council & EQHR Commission[2013] EWHC 3845 (Admin) (Holman J): The Court held that the Local Authority’s duty under section 17(1) of the Children Act 1989 to provide a range and level of services appropriate to a child in need, pursuant to assessments carried out when the child was actually present within the local authority's area, also applied when the child was physically outside the local authority's area but within England and Wales. J's family was of Romany Gypsy descent and W was a fairground traveller. The family was based in the local authority area, but lived in a caravan and W's work entailed them travelling. J was three years old and had Down's syndrome and other complex medical needs. Worcestershire had carried out assessments of J and did not dispute that he was a child in need. Worcestershire stated that it was unable to continue to agree funding for services once the family was outside its area. The position was that the family wanted Worcestershire to provide funding and coordination for J to receive care by the relevant local authority when they travelled throughout England,. The court held that the words "general duty" used in s.17 were to be read as a reference to power, and the duty arose, and the power existed, in relation to a person who was (a) a child; (b) within the area of the relevant local authority; (c) in need. The issue related to the final phrase of section 17(1), "by providing a range and level of services appropriate to those children's needs". The power under was capable of being exercised outside the area of the local authority, and at a time when J was outside that area. If Parliament had intended to restrict the provision of services to within the area of the local authority while the child was actually physically present within that area, it would have expressly done so. The effect of the words "to those children's needs" in the last phrase of section 17(1) was not necessarily to restrict the provision of services to within the area. It was to be stressed that that conclusion related to power, not to duties or responsibilities. In deciding whether it should exercise the power and whether it had a duty to do so, the local authority would have to take into consideration a very wide range of factors and legal duties. (click here for the judgment).

The Interveners were represented by Jan Luba QC of Garden Court Chambers.

KS (by her litigation friend DCGM) v Bradford District Council [2014] EWHC 11 (Admin) (Judge Clive Heaton QC):On allowing the application the Court held that a two-year-old girl, who was removed from her parents' care and put in the care of her maternal grandmother by the local authority, was placed there pursuant to the local authority's duty under section 20 Children Act 1989. The local authority accepted the little girl was at risk of significant harm, could not remain in the family home and her parents agreed that she would be removed. The local authority contacted the maternal grandmother and asked that she take the claimant little girl temporarily. The temporary arrangements became long-term arrangements. The maternal grandmother was never informed of the exact nature of the arrangements nor of what her and the claimant's entitlements would be. The Court found that the local authority played a central role in placing the claimant with her grandmother and the criteria under section 20, applying the test in G v Southwark LBC [2009] UKHL 14. Thus the claimant became a looked after child within the meaning of section 22(1), Children Act 1989 and she and her grandmother were entitled to local authority weekly fostering allowance to support the stability of the placement. (click here for judgment).

The Claimant was represented by Shu Shin Luhof Garden Court Chambers.

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