In this case the claimant (SA) successfully challenged the decision by the defendant local authority to provide support to her as a child in need under s17 of the Children Act 1989 rather than as a ‘looked after’ child. In December 2004, following an assessment by the local authority in which it concluded that her “parents are clearly unable to care for her at this time”, SA moved to reside with her maternal grandmother (GM). A week prior to this GM had met with SA’s social worker, at the request of the social worker, and when asked if she would be willing to care for her said she would, if necessary, as she needed “love, security and stability”. The following week the social worker contacted GM by telephone and asked if she would accommodate SA. GM asked what would happen if she didn’t and was told she would be put into care and that she would have no rights to have contact with SA, so any contact would be at the discretion of the foster carer. GM agreed to accommodate and SA was taken to her home that evening by the social worker. SA’s mother (M) contacted the local authority to confirm that, following a conversation with her mother, she was in agreement with SA residing there until the core assessment was completed (which was scheduled to be finalised in a matter of weeks). An agreement was drawn up by the social worker, that was restrictive in content, requiring GM to adhere to supervised contact between SA and her parents, and it appeared that the situation would be closely monitored by the local authority. At no time was the exact nature of the local authority’s involvement set out to GM. From January 2005 GM had regular contact with the local authority setting out that she was not in a position to care for SA long term. The local authority offered practical assistance to facilitate the continuation of the placement, but recommendations were made that a suitable foster placement should be identified. It also provided a weekly kinship payment of £63 per week. The local authority later intervened to prevent GM allowing SA to return to M’s address for a weekend and when M moved in with GM and SA to ensure that arrangements were made to allay concerns the local authority had over living arrangements. During three reviews of the placement which took place over 2005- 2006 GM made it clear that she did not have the physical or emotional energy to care long-term for SA. Despite this SA remained living with GM and is expected to continue to do so throughout her minority.
The applicant argued that the pattern of local authority involvement was not consistent with assistance to arrange a private family arrangement or simple assistance to a child in need under s17 of the Children Act 1989. They sought to challenge the local authority’s position on the basis that the facts indicate a greater degree of involvement than was present in London Borough of Southwark v D ; the local authority had not explained to GM that the arrangement was a private family arrangement and that she could not expect assistance from the local authority. They submitted that on the facts the duty under s20(1) Chidren Act 1989 arose and was not ‘side-stepped’ by the making of a private fostering arrangements. If the local authority did intend to fulfil the duty by arranging a placement with a family member under s23(6) then, the Claimant argued, there was an even higher onus on them to ensure GM understood that the arrangement was a private one and that any financial support must come from M. The local authority sought to defend the judicial review on the basis that SA was not the subject of a care order so any duty arising to accommodate her under s20(1) was side stepped by the facilitation of the private family arrangement. They sought to distinguish this case from the decision in Southwark on the basis that this was a placement with a family member rather than a private fostering arrangement. In the alternative, they argued, in the absence of a care order, if a child is placed with a relative, it is, by virtue of the existing authorities, always a placement under s 23(6), no matter what the financial arrangements and no matter whether the local authority plays a central role in facilitating the placement. Finally they argued that the matter would be better addressed via the local authority’s complaint procedure and was not a matter for judicial review.
The Court confirmed the placement with GM could not be one of a private fostering arrangement as the definition excludes those accommodated by relatives (s66 Part IX CA 1989). The Judge rejected the argument put forward by the local authority that the decision in Southwark does not apply where the carer is a relative and that any placement of a child with a relative not under a care order is automatically under s23(6). He accepted that “the fact and nature of the relationship is relevant when evaluating the situation …and there may be some cases in which the fact that the person with whom the child is to live is a relative makes all the difference to the outcome… [but] such a rigid position [is] disadvantageous from the point of view of the child and his or her relative in terms of financial and other support (and potentially discriminating against relatives and the children for whom they care)”. He also questioned whether local authorities would wish all placements with relatives to be under s23(6) as these would be unregulated, commenting “I am not persuaded that children will be properly protected if local authorities are obliged always to overcome these hurdles (and families to go through care proceedings) before the arrangements for a child to live with a relative are subject to regulation, nor am I persuaded that that will ensure sufficient support for all relatives who are caring for such children. This analysis leads me to the view that local authorities who arrange for children to live with relatives may do so either under s 23(2) or s 23(6). Which route they have taken depends upon the facts of the individual case.”
On the facts, the Judge determined that a duty under s20(1) did arise in respect of SA and that the local authority fulfilled this duty by arranging a placement under s23(2) rather than s23(6) of the Children Act 1989. He accepted that the fact that the local authority had not complied with their duties under s23(2) suggested that the placement may have been under s23(6) but pointed out that their conclusion that SA was not a looked after child was not determinative. Instead he re-iterated the point made by Smith LJ in paragraph 49 of Southwark, “If the local authority is facilitating a private arrangement, it must make plain to the proposed foster parent that she or he must look to the parents or person with parental responsibility for financial support. The local authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering arrangement.” As the local authority had not made their position explicit to GM, GM had not been in a position to give informed consent to any agreement that the placement would be made under s23(6) and any local authority support discretionary under s17 CA.
Rejecting the local authority’s final submission that the matter could be dealt with via the complaints procedure, the Judge commented that the argument ‘did not get off the starting block’. The authority itself had raised an argument of legal principle that placements with relatives enable a local authority to side step responsibilities under s20(1) or, if the duty arises, can only ever be placements under s23(6). This is a matter that falls to be determined by judicial review; it can not be addressed via a complaints process.
On the issue as to whether the delay in initiating proceedings could bar an application the Judge concluded that both the local authority and the solicitors for the claimant were at fault for allow the matter to drift. The pre-action protocol letter was dated 29.08.06, but proceedings were not initiated until June 2009. In deciding whether to exercise discretion to allow the matter to be heard he considered how each of the parties would be prejudiced if the matter was not considered. He concluded the determination of the local authority’s duty had not been prejudiced by the delay as the evidence had relied on their records, on which there was broad agreement. In contrast, both GM and SA would suffer significant prejudice if no declaration were made in respect of her status under the Children Act. SA would be unable to benefit as a looked after child, both now and once she had reached majority and GM would continue to suffer significant financial hardship. S was entitled to a declaration that she was, and had been at all times while in the care of G, a looked-after child. However, he did recognise that backdating any payments would have a significant impact on the local authority as it had made no provision for this in this year’s budget so this would detract from their ability to meet the needs of others. He therefore limited retrospective relief to March 2009 (three months prior to the issuing of the application).