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Foster providers lose High Court battle over "most appropriate placements"

Independent foster providers have lost a High Court legal challenge over the nature of the duty imposed on local authorities under the Children Act 1989, when choosing a foster placement, to place the child in the “most appropriate placement available”.

In Nationwide Association Of Fostering Providers, R (on the application of) v Bristol City Council & Ors [2015] EWHC 3615 (Admin) the claimant was an association established in 2008 to represent the interests of independent foster providers throughout England, Wales and Scotland. It has 78 members.

The claimant sought to argue that the defendant local authorities had failed to comply with the duty set out in Section 22C(5) of the Children Act.

Their legal team contended that the breach of duty arose because those local authorities operated policies which meant that in many cases they did not consider a placement with an independent foster provider unless and until no placement could be found with the local authority's in-house providers of foster care.

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The NAFP argued that, in order to be able to consider which placement was "the most appropriate", a local authority had to consider all placements available at the relevant time.

It could do that only if the search for a placement was made with every potential foster provider, the claimant argued.

It was not argued that the defendant local authorities acted irrationally or were Wednesbury unreasonable in their approach. Rather, it was said that they had acted unlawfully due to their breach of statutory duty.

The councils – supported by the Local Government Association – argued that they had acted lawfully and in accordance with their statutory duty. They said that the duty imposed no obligation in respect of the process to be followed in determining "the most appropriate placement available".

Mr Justice William Davis rejected the NAPF’s claim. The parties had rejected the judge’s suggested construction of section 22C(6) of the Act, but he said their arguments did not defeat that construction.

The judge found that the duty did not involve any requirement to make a particular kind of search of any one of the placements identified in section 22C(6) of the Act.

Mr Justice William Davis also concluded, considering the claim on the alternative basis, he would have been satisfied that the section 22C(6) duty did not require a local authority to contact all providers of potentially appropriate placements at the same time for every looked after child.

Peter Oldham QC of 11KBW appeared for the local authorities, while James Goudie QC – also of 11KBW – appeared for the Local Government Association.

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