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Court of Appeal disapproves of ‘destitution’ as threshold for support for migrant children and families

Judicial review appeal dismissed

The Court of Appeal has disapproved of 'destitution' as the threshold for support for migrant children and families under the Children Act 1989.

In R (on the application of C,T,M and U) v London Borough of Southwark [2016] EWCA Civ 707 a mother and children, Nigerian nationals who have been refused permission to remain in the UK on humanitarian grounds, appealed against an order dismissing their claims for judicial review and damages. The claims challenged the lawfulness of the accommodation and the level of financial support provided to the family by London Borough of Southwark.

Although the appeal was unsuccessful, the Court affirmed the principle that the assessment of children's needs, irrespective of nationality, must have due regard to the need to safeguard and promote the individual children's welfare and have proper appreciation of the potential impact of any decision on the best interests of the individual children. The local authority is required to demonstrate that the impact on the individual child's welfare is proportionate. The Court of Appeal's approach applies the dicta of the Supreme Court's decision of Nzolameso v City of Westminster [2015] UKSC 22 in cases under the Children Act 1989.

At first instance, the Administrative Court had found that the local authority undertook four full assessments of need and two financial support assessments. They provided accommodation throughout. They also provided financial support in cash and in kind by the payment of utility bills and rent, regular financial support payments, school and activity transport costs and occasional payments for items such as winter and school clothing. The local authority have always admitted that they had regard to the levels of child benefit and IAA 1999 support that were payable but denied that they fettered their discretion or had an unlawful policy or practice of using those rates as a starting point for the decisions that they made.

The Court of Appeal concluded that the local authority had not acted unlawfully and dismissed the appeal.

The judgment can be found here.