Does being at risk of radicalisation render a child “in need” for the purposes of section 17 of the Children Act 1989 thereby leading to section 20 accommodation, notwithstanding that the home environment is not the source of radicalisation? The answer according to the Court last week in A v LB Enfield [2016] EWHC 567 (Admin) was a resounding “yes”.
The case was an extreme one. The young person C had previously, at the age of 16, left home and, contrary to her family’s wishes, travelled to the Syrian border. That time she changed her mind at the 11th hour, contacted her family, was looked after by extended family in the region, and returned to the UK. She expressed a clear wish to live in an environment which followed very strict Islamic codes of behaviour, which her family did not provide. The next summer she again travelled, against her parents’ wishes, to Egypt, Greece and Bulgaria. On her return to the UK she refused to live with her parents.
Enfield assessed her, noted “concerns around radicalisation”, but concluded she was not homeless as she could live with her parents who were not the source of the radicalisation and were wholly against it, and, as she was not homeless, she was not “in need” for the purposes of s.17 of the Children Act 1989. Enfield maintained that position up to and through the litigation.
Hayden J ruled that C was plainly “in need” for the purposes of s.17 due to her risk of radicalisation (or perhaps more accurately described, her risk of taking steps in furtherance of what may have by then have been an already radicalised state): “the risks arising to C by virtue of her views and belief structure and the concerns that she was within a spectrum of radicalisation, undoubtedly placed her securely within the contemplated reach of s.17”. It was difficult envisage any circumstances where issues of this kind arose that did not fall at very least within the ambit of s.17.
Hayden J described Enfield’s decision making as “fundamentally flawed” and “difficult to justify or defend”. He said the conclusion that, because she could live with her family and was not on that basis homeless, was too simplistic. Another way of describing the flaw is that Enfield omitted to take proper account of the effects of radicalisation on her welfare, irrespective of the availability of housing.
The wider point, which will be obvious to readers, is that it is plainly flawed to decide that, because a child is living, or can live, with her parents, then by virtue of that the child is not “in need” for the purposes of s.17. The logic is false because (though it was probably not the case here) the risks some children face arise from their home environment.
Hayden J also criticised Enfield’s delay in carrying out a structured assessment, which had only been undertaken in response to pre-action protocol correspondence. He said it was “strikingly clear” that Enfield “did not truly analyse C’s case at all” within s.17.
COMMENTS
It is perhaps surprising the way this case developed. The issue is not a new one. The President of the Family Division, Sir James Munby, gave guidance six months ago on the subject: “Radicalisation cases in the Family Courts”. Radicalisation is now recognised as a ground for safeguarding and child protection in itself. A number of recent cases have involved action being taken on this basis, including pre-emptive action, e.g. Re X (Children) [2015] EWHC 2265 (Fam), Re Y (Children) (No 2) [2015] EWHC 2358 (Fam) and LB Tower Hamlets v M [2015] EWHC 869 (Fam).
The case is also notable for the separate issue of whether, if a local authority unlawfully refused to recognise a young person as being a child in need whilst they were under 18, and that error is recognised by the courts only after the child turns 18, the local authority can nonetheless still decline to comply with leaving care duties at that point. The argument was always a deeply unattractive one for local authorities. Enfield here, bravely, tried again to reargue the point. It failed.
Jonathan Auburn
ja@11kbw.com
twitter: @jon11kbw
Tags: children, Children Act, community care, in need, radicalisation, section 17