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09 January 2014

Children Act powers clarified in test case for children in need

4 mins

On 6 December judgment was handed down in (R (on the application of J) v Worcester City Council) [2013] EWHC 3845 (Admin) which begins with the intro: “Everyone loves a funfair. They are part of the tapestry of our national life. But there would be no funfairs without the travelling families who own the rides and amusements, erect them, man them, and then take them on to the next site or pitch.”

The judicial review was brought on behalf of “J” a three year old fairground and gypsy traveller with Down’s Syndrome who requires health and social care services to be provided and coordinated under section 17 Children Act 1989.

The court clarified that section 17 of the Children Act 1989 does indeed provide local authorities with the legal power to provide services to children in need outside their area when the children travel outside of the local authority’s boundaries for whatever reason.

The Council’s position would have meant that an “iron curtain” fell on service provision the moment a child stepped foot outside the authority boundary. This would of course have meant vulnerable children falling between the cracks, which runs contrary to what Parliament intended with the Children Act and 2013 statutory guidance “Working Together to Safeguard Children”, which the judge examined for the first time.  The court also upheld the Claimant’s arguments about the UN Convention on the Rights of Children and Equality Act’s application in such circumstances.

In his judgment Mr Justice Holman acknowledged that the claim was “one of widespread and general importance to all local authorities and many travelling or itinerant families.”  The case has the potential to assist the many gypsy, traveller, circus, and other children in need who move between areas for whatever reason, including abducted or runaway children. It has also helpfully clarified the law for local authorities, who have the power under sections 27 and 29 of the Children Act to share budgets when working together to provide services in the best interests of a child in need.

Reflecting the significance of the issues in play for disabled children and ethnic minorities, the Equality and Human Rights Commission was given permission to intervene in the case. Jan Luba QC for the EHRC illustrated the groups who would be affected by the ruling: “in contemporary England, the majority of such communities and households are likely to be Romani Gypsies, Irish Travellers, New Travellers, travelling showmen and women, boat dwellers and others who are mobile and without fixed or permanent abodes. The facts of the instant case might be thought to well exemplify the circumstances of such households generally and of those containing disabled children particularly.” If the Defendant’s interpretation of section 17 had stood, then the following children would also have been inadvertently denied services:

  • A child who requires specialist services which are not available within the local authority’s own area;
  • A child in need who spends part of the week with one parent and part of the week with another, in a different local authority area;
  • A child in need who spends part of the year at his parents’ home and part of the year at a residential school.

The court dismissed as unworkable and contrary to a child’s best interests the Defendant’s suggestion that a child could apply for a fresh assessment in each authority to which it travelled (each assessment would be subject to local eligibility criteria and could take up to 45 working days to complete by which time many children would have moved on).

Holman J referred to the 2013 statutory guidance which recommended a “holistic and integrated” approach to service provision “coordinated [by one authority] so that the child does not become lost between the different agencies involved and their different procedures.”  The judge also recognised the importance of coordination, continuity, regularity and familiarity of service provision for disabled children, which will be welcomed by many of Bindmans parent and service user clients who struggle when services are uncoordinated.

The Claimant “J” was represented by Gwendolen Morgan and Rowan Smith in the Public Law team and Chris Buttler of Matrix Chambers.


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