21.16R (Ali) v Birmingham CC [2002] EWHC 1511 (Admin), (2002) 5 CCLR 355
It could be lawful to use section 17 of the Children Act 1989 to offer assistance enabling a destitute family to leave the UK, rather than to remain hereZambrano carers:immigration control, persons subject toZambrano carers:Children Act 1989
Facts: families from abroad with children, who were ineligible for mainstream benefits, were not asylum-seekers and their children’s needs could be met in their country of origin. On claims being made for support under section 17 of the Children Act 1989, on the basis that the families were destitute, Birmingham offered assistance to return to the country of origin, or accommodation for the children on their own. The families sought a judicial review, to compel the provision of ‘family support’.
Judgment: Moses J dismissed the applications: although the children had been assessed as being children in need, Birmingham had a wide power to decide how to meet such needs and its decision was far from irrational (irrespective of whether claims of domestic violence in the country of origin were true); neither was there any breach of the ECHR; nor did it matter that no assessments had been completed under section 21 of the National Assistance Act 1948 because the issues and result would have been the same:
61. The submission of the claimants is, in my view, wrong in that it fails to distinguish between assessment of need and the Council’s wide power to decide as to how that need can properly be met. The choice of the mother to leave the Netherlands was, as it seems to me, relevant to the distinct question as to how assessed needs could properly be met. If, in the light of the accommodation and support available in the Netherlands, the children were better off in a country where they spoke the language and where they had hitherto stronger ties, then the Council was entitled to meet the need by funding the return of the family. The fact that the mother had exercised a choice to leave the Netherlands and was not compelled to do so was relevant to the question as to whether the needs could be met in the Netherlands. If she had no choice but to leave the Netherlands then her needs obviously could not be met there. Thus the fact that she did have a choice, in the judgment of the Council, which had been exercised, was relevant to the distinct issue as to what action the Council should take to meet the assessed need. In short, choice was relevant to the question of what ought to be done to meet the need.
Comment: for the proper approach where a family member cannot be expected to leave the UK because to do so would be incompatible with Article 8 ECHR, see
Clue below at para
21.21.