High Court judge slams councils in funding dispute over sick child

A High Court judge has severely criticised the behaviour of two local authorities engaged in a dispute over financial support for a sick child in foster care.

The case concerned Child “I”, who was born in Orkney in 2003 with a congenital heart disorder. His parents were unable to care for him satisfactorily, so he became the responsibility of Orkney Island Council (OIC). A distant relative and their spouse (Mr and Mrs “O”), who lived in Cambridgeshire, subsequently offered to become the boy’s carers and he moved to live with them in 2005.

Mr Justice Hedley reported that OIC had said it would provide financial support for the placement through a fostering allowance. The supervision requirement was lifted by the Children’s Panel in March 2009, at which point OIC claimed “I” was now habitually resident in England. It therefore argued that it had no further responsibility to pay the allowance and that all responsibility had transferred to Cambridgeshire County Council. Cambridgeshire in turn “adamantly refused to become involved”, the judge said.

The boy’s carers applied for a special guardianship order last year under the Children Act 1989, but Cambridgeshire objected and said the OIC should provide the report or pay for it. Under the provisions of the Act, a court cannot make a special guardianship order unless it has received the relevant report. As a result of the standoff between the two councils, the carers’ application had become “becalmed”, the judge said.

“Mrs and Mrs O could be forgiven for feeling abandoned to care for a child disowned by the state in its local authority form,” Mr Justice Hedley said. “The local authorities were present at court not to assist – in fairness they did not even make a pretence at that – but to obtain legal authority to distance themselves from responsibility for this child.

“I confess that as I listened to these matters, disbelief was not the only thought or experience that I experienced. Indeed I found it necessary to adjourn briefly so as to ensure than no wholly improper judicial observations escaped my lips.”

Mr Justice Hedley ordered Cambridgeshire to provide the special guardianship report on the basis that it was the relevant authority under the Children Act. He added that he would be sending his judgment to the Secretary of State at the Department for Children, Schools and Families and the Secretary of State for Scotland, for onward transmission to the Scottish government.

“Each authority has made the decisions it has with a view to the protection of a finite budget,” the judge said. “They cannot be criticised for such a step but the consequence for the foster parents of a sick child with special needs are cataclysmic.  Should local authorities be given some discretion in such circumstances?  Should they be allowed to honour agreements where they have been relied on even where circumstances change or the agreements had been concluded informally?  Should local authorities be encouraged to assist those who foster needy children even where they believe that not every box for legal liability has been ticked?”