The supporting act

A recent High Court case involving arrangements made for a 15-year-old girl to live with her grandmother highlights the importance of local authorities explaining what the nature of the arrangement is and the level of assistance available. Sallie Harrington examines the ruling.

The case of SA v a LA [2010] EWHC 848 Admin involved a judicial review of a local authority decision to treat a 15 year old living with her grandmother as a child in need but not as a looked after child under the Children Act 1989.

The child (A) had been living with her mother (M), who was in a violent relationship. Arrangements were made for her to go to live with her grandmother (GM) under an agreement drawn up by the local authority and signed by the mother and grandmother.

GM was never explicitly informed by the council that the arrangement was not intended to be a placement made by the local authority but an agreement reached between M and GM. The local authority did not comply with the regime applying to looked-after children but provided assistance in accordance with section 17 of the Children Act 1989.

The child’s mother and grandmother had very little direct discussion about the agreement prior to the child going to live with GM. Following A moving in with GM, the local authority continued to have significant involvement in the arrangements for her day to day care for a considerable length of time.

The Children Act 1989 sets out local authority responsibilities towards children in need. Section 20 provides that a local authority has a duty towards children in need who require accommodation as result of their being lost or abandoned, there being no person with parental responsibility or the person who has been caring for him being prevented (whether or not permanently and for whatever reason) from providing him with suitable accommodation or care.

A child provided with accommodation under section 20(1) is a “looked after child” in accordance with s22. A child with this status has access to a raft of support from the local authority.

Section 23 also deals with the provision of accommodation for children. Section 23(2) provides for the manner in which a local authority shall provide accommodation and maintenance, including placing the child with a relative. By virtue of section 22(4), this will be a foster care placement, subject to particular exceptions. The child will also be a looked after child. Section 23(6) provides that any local authority looking after a child shall make arrangements to enable him to live with a parent, person with parental responsibility, person with residence order, relative or friend unless that would not be reasonably practicable or consistent with his welfare.

The courts have interpreted section 23(2) and section 23(6) as distinct provisions, the latter of which provides for a local authority to simply facilitate a private arrangement for accommodation. In that case the child does not become looked after by the local authority: Re H (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629, Southwark v D [2007] EWCA. Where the prospective carer is a close relative; grandparent, sibling, aunt or uncle, an arrangement under section 23(6) is not a foster care placement.

Mrs Justice Black was clearly troubled by the correct interpretation of the statutory regime, wondering whether in fact s23(2) was intended to be an overarching provision, followed by a number of subsidiary provisions designed to define how the local authority is to go about fulfilling that s23(2) duty. She accepted however that she was bound by the interpretation given in earlier judgements.

It was claimed that A required accommodation in accordance with section 20(1), the local authority had discharged that duty by making a placement with her grandmother in accordance with section 23(2). She was therefore a looked after child and entitled to the relevant assistance from the local authority. The fostering allowance was £146.23 per week, significantly more than the £63.56 she had been paid under section 17 of the Act.

The local authority argued that the duty under section 20(1) never arose as GM was able to provide accommodation. Alternatively, if the section 20(1) duty had arisen, it was immediately discharged by making arrangements under section 23(6). The local authority submitted that in all cases where the person providing accommodation is a close relative, it must be assumed that section 23(6) applies.

It was asserted that the Southwark case could be distinguished on the basis that it did not apply to placement of a child with a close relative. In that case the child had gone to live with a former partner of her father’s. Whether the placement was a private fostering arrangement was in question. This could not arise in the present case as the definition of a private fostering arrangement in section 66 of the 1989 Act excludes close relatives including grandparents.

Mrs Justice Black concluded that placements with relatives could be made under either section 23(2) or section 23(6). Which was applicable in any particular case was dependent on the facts of that case. The fact that the proposed carer was a relative might, however, be one of the relevant factors in determining under which provision arrangements were made. It was declared that A was and had been at all times since living with GM a looked after child. There had been significant delay in making the claim. For that reason the court limited back payment of financial assistance to 3 months prior to the claim.

Comments

If the authority believes that it is not necessary for it to make a placement under s23(2) but merely intends to make arrangements under s23(6), the authority should consider whether the circumstances truly reflect this.

If the current carer plainly can not continue to accommodate the child and the local authority steps in; making initial contact, requesting accommodation be provided, orchestrating the arrangements and monitoring the placement, this is more likely to resemble a foster care placement.

It might be asked; who is responsible for the care arrangements for the child? Are there direct discussions between the current and prospective carers? Are the carers making decisions as to care arrangements rather than authority? Does the carer make decisions as to the day-to-day care of the child without local authority involvement? Does the authority impose conditions on the arrangement? Does the authority control contact with parents or other persons? Does the authority continue to monitor the arrangement? It appears that the more a local authority is actively involved, the more likely a placement under section 23(2) is in effect.

It is suggested that a prospective carer ought to be clearly informed of what the local authority considers to be the nature of the arrangement and what this means in terms of the financial and other assistance available from the local authority.

This could result in more prospective carers refusing to agree to accommodate children unless the local authority treats the placement as section 23(2) with the associated financial entitlement available to foster carers.

The material benefits would however be weighed against the intrusion of social services in their lives. Close relatives who accommodate children in accordance with section 23(6) are not subject to private fostering arrangements and not regulated as a local authority foster care placement. Some thought might be given as to what intervention from state services is warranted in such cases.

Sallie Harrington is an associate in the local government team at Weightmans LLP. She can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it..