Khatija Hafesji successfully brings a notable retrospective section 20 Children Act judicial review claim

03 Feb 2020

R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) is only the second case to successfully challenge a refusal to grant retrospective section 20 status after the judgment of the Court of Appeal in GE (Eritrea) v the Secretary of State for the Home Department [2014] EWCA Civ 1490, and is the very first to do so more than 3 months after the initial decision not to accommodate a child under section 20 was taken. The Court (Matthew Gullick, sitting as a Deputy High Court Judge) found that Ealing’s assessment of AB’s needs was unlawful, and its subsequent decision not to treat her as if she were a former relevant child was also unlawful.

AB had a long history of contact with social services, due to her status as a young carer for her mother and siblings and having suffered and witnessed domestic violence at home. AB ran away from home at the age of 17, however Ealing social services refused to accommodate her and insisted that she return home. AB instead stayed in a refuge for women fleeing domestic violence. Upon turning 18, AB claimed that she ought to have been accommodated when she initially approached Ealing for assistance and – had she been – she would now be entitled to the rights and entitlements conferred on young people leaving care. She asked Ealing to exercise its discretion to remedy this injustice. Ealing claimed that its initial assessment that she did not require accommodation was sound, and that it would not exercise its discretion. The Court quashed that decision and the matter was remitted to Ealing. On 30th January 2020, Ealing confirmed that it would treat AB as a former relevant child.

The Court’s consideration of the timing issue is of significance. The Court accepted AB’s argument that the decision under challenge was the decision not to exercise the discretion rather than the underlying assessment and therefore the claim was in time. The Court thereby rejected the Ealing’s argument that such an approach undermines the public interest in the finality of decision-making and permits challenges many months or years after the relevant assessment.

Following written submissions, AB was also awarded 100% of her costs in a fully-reasoned judgment which highlights the importance of well-timed settlement offers in judicial review claims.

Khatija Hafesji acted as sole counsel for the successful Claimant. She was instructed by Lois Clifton, Fiona Couzens, and Dan Rosenberg of Simpson Millar solicitors.

A copy of the judgment can be read here.