In Salford City Council v W (2021) EWHC 1689 (Fam) MacDonald J reviewed the authorities and outlined the approach for determining whether a child was “looked after” for the purposes of Part 3 of the Children Act 1989. It sets out the principles which apply when deciding whether a child has been accommodated by a local authority under Section 20, so that he or she is a “looked after child” within the meaning of Section 22, rather than simply having been placed, pursuant to a private arrangement, with foster parents.

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In R (AXA ) v Hackney LBC (2021) 1345 ( Admin) the claimant said that he was 17. The Council assessed him to be at least 21. They declined to provide him with accommodation suitable for a 17 year old. He sought a mandatory interim injunction requiring the Council to place him in “ claimed age appropriate accommodation” and “ provide support for his living needs”.  Garnham J noted, at para 21, that in accommodation duty cases an injunction will not generally be granted where the applicant cannot show a “ strong prima facie case “, but said,,at para 22, that there are circumstances where the Court may not insist on a strong prima facie case. Context is everything. Garnham J concluded, at paras 23 and 24, that there is “ no hard and fast rule” , but the fact that what is sought is mandatory is “ one factor which can properly be taken into account in assessing the balance of convenience.” The strength of the claimant’s case, so far as it can be taken into account, is also a factor to be taken into account in the balance of convenience. See further paras 42-48 inclusive.

The approach to the question of “ordinary residence” under the Mental Health Act 1983 is different from that under National Assistance Act 1948/Care Act 2014. So held by Linden J in R (Worcestershire County Council) v SoS (2021) EWHC 682 (Admin). LA 1 provided after-care services for a person discharged from hospital after being detained there under Section 3 of the 1983 Act. LA 1 placed the person in a care home in the area of LA 2. Then that person was detained again. When they were discharged again after the second period of detention, was it LA 1 or LA 2 who was responsible for the second period of after-care? Answer: LA 2. Reason: for the purposes of Section 117 (3) of the 1983 Act they were “ordinarily resident” in LA 2’s area “immediately before” the second period of detention.

R ( Lancashire County Council ) v SoS for Health and Social Care  (2021) EWHC 268 (Admin ) concerned “ ordinary residence” under Section 21 of the National Assistance Act 1948. In particular it concerned the deeming provision in Section 24(5) of the 1948 Act, and the situation when arrangements for accommodation should have been made, but were not. The Judge held that the “ should have “ requirement includes (1) the undertaking of any assessment that should have been undertaken under Section 47 of the National Health Service and Community Care Act 1990 at the relevant date, having regard to the low threshold for such an assessment, and (2) disregarding resources available to meet the need that fall to be disregarded under Section 21(2A) of the 1948 Act, such as PI damages, administered in this case by a CoP appointed Deputy.

Does a local authority have power to take steps to change the nationality of a child in care, to British citizenship, against the wishes of the child’s parents? No, says the Court of Appeal, in Re Y, (2020) EWCA Civ 1038. An application must be made to the High Court.

In Tower Hamlets LBC v PB (2020) EWCOP 34 Hayden J has applied the presumption of capacity in the Mental Capacity Act 2005 and highlighted that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The Judge gave guidance on assessing the capacity of those who are alcohol dependent to decide where they live and what type of care they receive, and re-stated the relevant principles.

In R (Jallow) v SSHD (2020) UKSC 4 the Supreme Court considers, in the context of an immigration curfew, whether the meaning of “imprisonment”, at common law, should be aligned with the concept of deprivation of liberty (“DoL”) under Article 5 of the ECHR.  Lady Hale explains that the ECHR distinguishes between DoL and restriction of physical liberty.   Whether there has been a DoL depends on a number of factors.  The Supreme Court unanimously declines to accept the argument by the SoS that the time has come to align the domestic law of false imprisonment with the concept of DoL.  This would be a retrograde step. It would restrict the classic understanding of imprisonment at common law with the “much more nuanced” concept of DoL. There is no need for the common law to draw a distinction between deprivation and restriction of liberty, and good reason not to do so. It is possible for there to be imprisonment at common law without a deprivation of liberty under ECHR Article 5.  It was not necessary to decide whether the concept is true.

In Hertfordshire Council v NK (2020) EWHC 139 (Fam) the question before MacDonald J was whether the Court should grant a deprivation of liberty order (“DOL Order”) under the inherent jurisdiction of the High Court in respect of AK, aged 16, and with a diagnosis of ADHD and a conduct disorder, leading to a history of self-harm, suicidal ideation and low mood. The Council’s application for a DOL Order was opposed by AK’s Children’s Guardian, AK’s mother, NK, did not appear, and was not represented.

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R (Aburas) v Southwark LBC (2019) EWHC Civ 2754 (Admin) was, as the Judge put it, a claim for judicial review is found on that part of the legal map where there is an intersection between (i) local authority functions of assessing and meeting adult needs for care and support under Part I of the Care Act 2014 (CA14) and (ii) human rights arguments invoking the Convention rights in Article 3 (protection from inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of Schedule 1 to the Human Rights Act 1998 (HRA98).   The essence of the claimant’s argument was that, linked to but wider than being destitute and in need of accommodation and subsistence, he had a ‘looked-after need’ of support by a social worker to access food and medication, which support required for its effective delivery the provision of accommodation, refusing which supported accommodation had consequences so serious as to breach his Convention rights. The essence of the Council’s’ defence of the claim was that, even if (which was not accepted) the claimant was destitute and in need of accommodation and subsistence, it is to the Home Secretary through Asylum Support that he must look for human rights-compatible action, the Council having lawfully discharged its statutory ‘looked-after needs’ functions under CA14 read with HRA98. Read more »