London Borough of Southwark v D [2007] EWCA Civ 182

This case involved an appeal by the London Borough of Southwark against a decision by the High Court that it had looked after a child (S) pursuant to its statutory powers and duties under Part III of the Children Act 1989 and that Southwark was accordingly obliged to pay for S’s accommodation and maintenance which had been provided by ED, a friend of S’s father.

S came to live in England from Jamaica with her father (B) when she was 11 years old. S’s mother remained in Jamaica and since she had not been married to the father, she retained sole parental responsibility for S.  S disclosed to her school that her father had been violent towards her and the police and social services were contacted.  The case was investigated by both agencies and B agreed not to have contact with S whilst the matter was investigated.  B agreed if it were possible, that S should stay with ED.  A representative from social services (D) asked ED whether she would be able to look after S.  ED agreed and D told her that someone from his office would contact her to offer assistance.  He did not say anything about the length of time for which ED was to care for S.  Neither was anything discussed regarding the financial arrangements.  ED did not receive any further contact from D about the arrangements.  She received modest lump sums to assist her financially, totalling £230.  She was refused any further payment.  Southwark’s position was that since ED was resident in the London Borough of Lambeth, it was Lambeth’s responsibility to provide any services, including financial support.  Lambeth’s view was that Southwark had placed S with ED pursuant to their statutory duties and that S was its responsibility to maintain her.
ED consulted solicitors regarding the refusal by Southwark to provide any further financial assistance to ED.  ED made a complaint under section 26 of the Act but this was refused and an application was made for judicial review of Southwark’s decision.  She sought a declaration that S had been looked after by Southwark during the relevant period, pursuant to its duties under sections 20 and 23 of the Act and also a mandatory order directing Southwark to pay ED for accommodation, care and maintenance of S.

Section 20 of the Act deals with children in need within the local authority area and places a responsibility on it to provide accommodation.  Section 23 (2), in meeting this duty, permits a local authority to place a child with a family, relative or any other suitable person.

Before the High Court, ED argued that S was a child in need and that Southwark was under a duty to provide accommodation for her.  The conversation between D and ED constituted a placement of S by Southwark with ED, pursuant to section 23 (2) of the Act.  The judge agreed but held that before making the local authority made arrangements under section 23 (6) S had to be a looked after child and S was not eligible until she had been accommodated by Southwark.

Firstly, the Court of Appeal re-examined whether Southwark was under a section 20 (1) duty to provide accommodation for S.  It accepted that there may be circumstances in which a local authority, which was on the verge of having to provide accommodation for a child, to ‘side-step’ that duty by helping to make private fostering arrangements. Whether or not this actually happened was a question of fact in each case.   Where a local authority took a major role in making arrangements for a child to be fostered it was more likely to be concluded that in doing so it was exercising is powers and duties as a pubic authority pursuant to sections 20 and 23.  If a local authority wished to play a role in making a private fostering arrangement the nature of the arrangement should be made clear to those involved.  It should be made plain to the proposed foster parent that he or she must look to the parents or person with PR for financial support.  The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority in the relevant area.  If such matters were left unclear there was a danger that the foster parent and others would conclude that the local authority was acting under its statutory powers and duties and the arrangement was not a private one at all.  In the present case, Southwark had taken a central role in making the arrangements for S to live with ED.  It arranged meetings between relevant parties and directed that B should have no contact with S.  These factors were more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement.  The High Court had been right to find that this was not a private fostering arrangement.  A full and proper explanation was imperative where a local authority was seeking to discharge its obligations by arranging that someone else would shoulder them.  In this case, the nature of the arrangements was left uncertain and the only inference that could be drawn was that Southwark was asking ED to accommodate S on their behalf and at their expense.

On the section 23 (2) and (6) issue, the Court of Appeal took a different view on the interpretation of this section.  It held that there was no requirement for a child to have been accommodated by the local authority before it could make a placement or arrangements under these sections.  If this were the case it would make emergency placements virtually unworkable.  The whole of section 23 applied to children ‘looked after’ by a local authority.  There was an inconsistency in the judge’s reasoning in that he was prepared to hold that S had been placed under section 23 (2) but was not prepared to hold that arrangements could have been made for her pursuant to section 23 (6).  It decided that S was a child looked after by the local authority as soon as the section 20 (1) duty arose and either it could provide accommodation itself by making a section 23 (2) placement or it could make arrangements for the child to live with a relative friend or other connection pursuant to section 23 (6).
Appeal dismissed.

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