In R(AB) v LB Ealing  EWHC 3351 (Admin) Joshua Swirsky represented the London Borough of Ealing in a challenge to its decision not to treat a young person as a 'former relevant child'.
The local authority had declined to treat the applicant as a 'former relevant child'. AB sought judicial review of this decision on the ground that the Children Act assessment the council had carried out was unlawful.
Matthew Gullick sitting as a Deputy High Court Judge found for AB as regards the assessment, which he found to be sufficiently detailed but lacking in analysis. However, he declined to make the declaration sought. He found that in a complex case such as this there was no obvious outcome of an assessment and that whether AB should have been accommodated under section 20 of the Children Act 1989 was a matter for the evaluative judgment of social workers, not for a judge. The local authority will now make a new decision in the light of the judgment.
Background to the case
AB came from a home with complex needs as a result of her mother's mental ill-health and her father's violence. In September 2018 she left home to live with her boyfriend shortly after her mother was admitted to hospital and her father returned to the family home to look after her younger siblings.
With the help of advocates, AB then approached the council seeking to be accommodated under section 20 of the Children Act 1989. The council took the view that AB could be successfully reintegrated into her family with social work support and AB's mother was supportive of this. An assessment was completed that recommended this course of action.
AB rejected the proposed course of action and went to live to a refuge, again with her advocates' support. Just before her 18th birthday, she approached the local authority again and asked it to exercise its discretion (as explained in R(GE) v Secretary of State for the Home Department  EWCA Civ 1490, so she could be treated as 'a former relevant child' within the meaning of section 23C of the Children Act 1989. She argued the 'former relevant child' point on the basis that in October 2018 she should have been accommodated under section 20 of the 1989 Act .
The local authority declined to treat her as a 'former relevant child' as it had conducted a lawful Children Act assessment at the time. AB sought judicial review of this decision on the ground that the assessment was unlawful. She sought:
- the quashing of the decisions based on the October 2018 assessment, and
- a declaration that the local authority should approach exercising its discretion on the basis that the only possible outcome of the October 2018 assessment was that she should have been accommodated under section 20 of the Children Act 1989.