Duties under s. 20 Children Act

William Brierley writes about an important recent case turning on the question of the extent of local authority duties under The Children Act 1989.

Buckinghamshire County Council have successfully defended a judicial review at first instance in the High Court. The case has potentially significant implications for defining when family members other than parents who care for children are foster carers and when they are not.

Judgment in the case of R (on the application of C, a child by his grandfather and litigation friend L) v Buckinghamshire County Council [2014] EWHC 4072 (Admin) (as yet unreported) was handed down on 8 December 2014. The proceedings concerned two children (the oldest of whom is severely autistic) who have been cared for by their grandparents since 2010. The arrangements by which the children came to be cared for by their grandparents were made entirely by agreement between the grandparents and the children’s mother, with the local authority’s role being limited to providing advice and, more recently, practical support in the form of respite care. The children have never been subject to a section 20 Children Act 1989 agreement with the local authority or court proceedings, and neither has the local authority been asked at any time to accommodate the children. The grandparents, who were rightly warmly commended in the judgment, have done an excellent job of caring for their grandchildren in sometimes difficult circumstances. The local authority has never had any concerns about the care these committed carers have provided.

Whilst the local authority was successful in this case in arguing that no duty had arisen for the local authority under s. 20, the underlying message of this case, as of other recent related cases, is that identified by Baroness Hale in M, R (on the application of) v London Borough of Hammersmith and Fulham [2008] UKHL 14.

Baroness Hale stated that the primary question is whether a local authority has come under a duty to provide accommodation under section 20. If the duty has arisen and a local authority should have taken action to fulfil this duty, they cannot side-step their further obligations by recording they were acting under some other power. In other words, in determining whether carers should be deemed to be foster carers with all the obligations which arise under section 22 Children Act 1989 - including financial obligations - which follow this, the Court will consider the whole course of a local authority’s involvement in the arrangements made for children when they are accommodated with family members, and will not be bound by the way in which a local authority chooses to define the arrangement. The greater the degree of involvement by the local authority, the more likely it is that the Court will find that a duty has arisen.

The implications of the instant case are considerable. Had the local authority been unsuccessful, it is arguable that it would have opened flood gates to claims from almost any family member who cares for children under a private family arrangement that they are a foster carer, and should be funded by the local authority accordingly: this would have potentially massive implications for already overstretched local authority budgets. Equally, had the Court found in favour of the claimant, it would have had important implications for the Article 8 rights of families to make their own appropriate arrangements for the care of children, where their parents are unable to care for them, without the interference of the state.

William Brierley is a solicitor at Buckinghamshire Law Plus, a legal services company owned by Buckinghamshire County Council. This post first appeared on their blog.

Sarah Morgan QC and Matthew Fletcher of 1 Garden Court appeared for the local authority.