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||Neutral Citation Number:  EWCA Civ 182
||Case No: C1/2006/1571
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QB DIVISION, ADMINISTRATIVE COURT
Mr Justice Lloyd Jones
||Royal Courts of Justice
Strand, London, WC2A 2LL
||07 March 2007
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE KEENE
LADY JUSTICE SMITH
|| London Borough of Southwark
||- and -
(Transcript of the Handed Down Judgment of
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Mr Nicholas O'Brien (instructed by London Borough of Southwark) for the Appellant
Mr Stephen Cragg (instructed by Messrs Fisher Meredith) for the Respondent
Hearing date : 2 February 2007
HTML VERSION OF JUDGMENT
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Lady Justice Smith : This is the judgment of the Court.
- This is an appeal from the decision of Lloyd Jones J made on 22nd June 2006 when, on an application for judicial review, he decided that, between January 2004 and June 2005, a child S had been looked after by the London Borough of Southwark (Southwark) pursuant to its statutory powers and duties under Part III of the Children Act 1989 and that Southwark was accordingly obliged to pay for S's accommodation and maintenance which had been provided by the claimant ED, who had cared for S during that period. Southwark denied that it had ever looked after S pursuant to its statutory powers or duties and contended that, in arranging for S to be cared for by ED, it had merely acted as a facilitator in bringing about a private fostering arrangement between S's parents and ED. That being so, it was under no duty to maintain the child. In this appeal, Southwark contends that the judge misapplied the law to the facts as found.
The Factual Background.
- S was born in Jamaica in October 1990. Her parents have never been married to each other. At all material times, the mother has lived in Jamaica. The father, RB, lives in England and at all times material to this case resided in Southwark. S lived in Jamaica with her mother until 2001, when, at the age of 11, she came to England to live with her father. Under English law, the mother had and retained sole parental responsibility for S.
- The father has had relationships with a number of women, one of whom is ED. In the course of her relationship with the father, ED cared for S, mainly at her own home, which was in the London Borough of Lambeth. It was ED who was responsible for enrolling S at the school where ED's own daughter attended. This school was in Southwark although, being close to the border between the two districts, it took children from both local authority areas.
- ED's relationship with RB ended in 2003. In May 2003, Southwark placed S with local authority foster parents on account of concerns about RB's treatment of her. The placement was not successful. S was very unhappy. She left the foster parents and went to stay with ED for about two months, with Southwark's knowledge and consent. She then returned to live with her father. In December 2003, the father visited Jamaica and left S in the care of JA, another girlfriend or former girlfriend of his, who lives in Tottenham. In January 2004, S returned to live with her father.
- On about 18th January, this arrangement broke down and S went back to JA's. On 20th January, S told the school staff that RB had been violent to her and that she did not wish to return to him. The school contacted Southwark Social Services to tell them of this allegation of violence and also that the father was coming to the school later in the day to collect S. Southwark instructed the school not to allow the father to take S away. It would send someone from the social services department and also someone from the Police Child Protection team to the school.
- A meeting was convened in the late afternoon attended by the father. The representative from Southwark Social Services was Mr Dallas. RB admitted that he had been violent towards S. The officer from the Child Protection team instructed him that he should have no contact with S pending the investigation of her allegations of violence. I think the father must have agreed not to have contact with S. I cannot see that the police had power to direct him not to do so. He had not at that time been arrested; he was not on bail. Nor had care proceedings been commenced. Had he not agreed to keep away from S, it seems to me that Southwark would have had to obtain an interim care order for S's protection. However, that was not necessary.
- It appears that S had told the school staff that she would like to go to stay or live with ED, as she felt safe there. RB agreed that, if it were possible, S should go to stay at ED's. RB then left the school and S was brought into the meeting. She confirmed that she would like to go to ED's. Mr Dallas telephoned ED, who was at work, and asked her whether she would care for S. She agreed to do so and it was arranged that Mr Dallas would take S to ED's house and leave her in the care of her eldest child, a young man aged 19. That was done. S has lived with ED ever since.
- The following day, ED attended at Mr Dallas's office at his request. Mr Dallas told her that social services knew that RB had been violent to S in the past. He told ED that someone from his office would visit her within a few days and that steps would be taken to offer her assistance. He did not say anything about the length of time for which ED was to care for S. Because ED was concerned for S's welfare, she indicated her willingness to cooperate. Nothing specific was said about the financial arrangements and ED assumed that these would be made by 'someone from the office'. However, no one visited her. ED telephoned Mr Dallas on a number of occasions but still no one came.
- On 31st January, Mr Dallas spoke to S's mother in Jamaica by telephone and she consented to S being cared for by ED. Mr Dallas' note of this conversation made it plain that he regarded the arrangement he had made as a private fostering arrangement. In that regard it was different from the notes he made of his conversations with ED; they were silent as to the legal basis of the arrangements being made.
- ED found it difficult to care for S without financial support. She asked Mr Dallas for support and, on four occasions between January and March 2004, he arranged for her to receive modest lump sums: £230 in all.
- ED had arranged to spend a holiday with relatives in the USA from late March; she was to be away for about three weeks. She telephoned Mr Dallas to suggest that S should be left in the care of a friend of hers named PL. Mr Dallas approved the arrangement, spoke to PL and subsequently arranged for her to be paid £265 for looking after S. On her return home in April 2004, ED again asked Mr Dallas about financial support and she was refused any further payment. Southwark's position was that, as S was resident in Lambeth with ED, it was for the London Borough of Lambeth to provide any services for S, including financial support. Southwark gave notice to Lambeth that, in their view, S was Lambeth's responsibility. Southwark also advised ED to apply to Lambeth. However, Lambeth's attitude (as expressed to both Southwark and to ED) was that, as Southwark had placed S with ED, pursuant to their statutory duties, it was Southwark's responsibility to maintain her. ED has received no further financial support from either authority since March 2004.
- S has thrived in the care of ED and, on 7th June 2005, ED applied for and obtained a residence order, which has the effect of giving ED parental responsibility for SB.
The Statutory Framework
- Under the Children Act 1989, local authorities have a wide range of powers and duties in respect of children within their areas. These include, in Part III, powers and duties in respect of children 'in need'. There is a general power, pursuant to section 17, to provide assistance, including financial assistance, for children and their families and also a positive duty, pursuant to section 20, to provide accommodation and financial support in respect of some children who appear to be in need of accommodation. Part IX of the Act imposes upon local authorities responsibilities of a supervisory nature in respect of children who are being cared for under private fostering arrangements. It is the duties under Parts III and IX of the Act with which this appeal is concerned. These powers, duties and responsibilities are additional to the duties imposed upon an authority pursuant to the making, by a court, of a care or supervision order.
- Part III begins with a statement of the general duties of local authorities for children in need and their families. Section 17(10) defines a child in need and it is common ground that at the material time, S was a child in need.
- Section 17(1) provides:
"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) –
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
- Section 17(2) provides that the local authority shall have a number of specific duties set out in Part 1 of Schedule 2 to the Act. Under section 17(6), the services provided by an authority under this section may include providing accommodation, giving assistance in kind or, in exceptional circumstances, in cash.
- Section 20 provides for the provision of accommodation for children in need.
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) 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.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare –
(a) ascertain the child's wishes regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.
(7) A local authority may not provide accommodation under this section for any child if any person who –
(a) has parental responsibility for him; and
(b) is willing and able to –
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him, objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section."
- Section 22 makes provision for the duties of a local authority in relation to children looked after by them.
"(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is –
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [are social service functions within the meaning of] the Local Authority Social Services Act 1970 [apart from functions under sections , 23B and 24B].
It is common ground that the functions referred to in (b) above include the functions the court is concerned with in this case, those under sections 20 and 23.
- Section 22 (2) provides:
"In subsection (1) 'accommodation' means accommodation which is provided for a continuous period of more than 24 hours."
- Sections 22(4) and (5) provide that, before making any decision with respect to a child whom they are looking after, the local authority shall so far as reasonably practicable ascertain and take into account the wishes and feelings of various persons, including the child himself, the child's parents and any person with parental responsibilities. Thus the making of a decision about a child who is being looked after involves or should involve careful consultation and consideration.
- Section 23 deals with the provision of accommodation and maintenance by local authorities for children whom they are looking after.
"(1) It shall be the duty of any local authority looking after a child –
(a) when he is in their care, to provide accommodation for him; and
(b) to maintain him in other respects apart from providing accommodation for him
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by --
(a) placing him subject to subsection (5) and any regulations made by the Secretary of State with –
(i) a family;
(ii) a relative or his; or
(iii) any other suitable person,
on such terms as to payment by the authority and otherwise as the authority may determine;
[(aa)maintaining him in an appropriate children's home;]
(f) making such other arrangement as –
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State.
(3) Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(4) A person falls within this subsection if he is –
(a) a parent of the child;
(b) a person who is not a parent of the child but who has parental responsibility for him; or
(c) where the child is in care …..(not applicable)
(6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with –
(a) a person falling within subsection (4); or
(b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare."
- Any placement of a looked after child made under section 23(2) is subject to the Fostering Services Regulations 2002. Notwithstanding the introductory words of section 23(6), it appears that no regulations have been made under that subsection.
- Part IX and Schedule 8 of the Act make provisions for the private fostering of a child. It is not necessary to set out these provisions. We summarise them by saying that, at section 66, a privately fostered child is defined as one who is being cared for and accommodated by a person (in his or her own home) who is not a parent or relative of the child and does not have parental responsibility for him. Schedule 8 provides inter alia that the local authority may impose requirements upon a person who is fostering a child privately. The Schedule also empowers the Secretary of State to make regulations requiring private foster parents to notify their local authority that they are fostering a child privately and also imposing on local authorities a duty to monitor and supervise any private fostering arrangement of which they are notified. The regulations in force in January 2004 were The Children (Private Arrangements for Fostering) Regulations 1991.
- The Department of Health has published Guidance to the Operation of the Children Act 1989. Volume 8 deals with private fostering. At paragraph 1.1.5, the guidance states that:
"… private fostering is the arrangement made between usually the parent and the private foster parent who becomes responsible for the child in such a way as to promote and safeguard his welfare. The role of local authorities is to satisfy themselves that the arrangements are satisfactory and that the foster parents are suitable."
The Institution of Proceedings
- In August 2004, ED consulted solicitors, who asked Southwark to provide financial help in respect of S on a regular basis. This was refused on 1st October 2004. There was then correspondence between solicitors and a formal decision to refuse support was sent on 17th January 2005. The claimant made a statement in support of an application for judicial review on 14th February 2005. At about this time, Southwark suggested to ED's solicitors that, rather than take legal proceedings, she should lodge a complaint pursuant to Section 26 of the Children Act. This she did but it was rejected on 6th May 2005.
- ED sought funding for an application for judicial review. A letter before action was sent on 14th June 2005. On 9th August 2005, when ED was about to issue proceedings, Southwark asked for further time to take advice and suggested discussions between the parties. These did not take place. The claim was issued on 3rd October 2005. ED sought a declaration that, between 22nd January 2004 and 7th June, S was looked after by Southwark, pursuant to its duty under sections 20 and 23 of the Children Act and also a mandatory order directing Southwark to pay ED for accommodation, care and maintenance of S during that period.
- Southwark defended the claim on the merits and also contended that the claim was stale and should be rejected as out of time. However, it did not submit any evidence. It sought to rely on case notes kept by Mr Dallas and correspondence between the parties.
The hearing before the Judge.
- Before the Judge it was argued for ED that S was a child in need, that on 20th January 2004 she required accommodation and, because her father had been prevented from providing accommodation for her, the condition in section 20(1)(c) was satisfied and Southwark was under a duty to provide accommodation for her. The telephone call between Mr Dallas and ED and the interview on the following day amounted to a placement of S by Southwark with ED, pursuant to Section 23(2). It followed that Southwark was obliged to pay for S's accommodation and maintenance.
- Southwark accepted that it had had the power to provide accommodation for S pursuant to section 20(4) but did not accept that it had been under a duty to do so under section 20(1). It contended that the condition in Section 20(1)(c) was not satisfied. S's father, who had been caring for her, had not been prevented from providing her with accommodation or care. What had happened after the meeting at school on 20th January was not a placement under section 23(2) but the facilitation by Mr Dallas of a private fostering arrangement (pursuant to section 66 of the Act) between the parents and ED. It was argued that what had happened could not have been a section 23(2) placement because the formalities required by the Fostering Services Regulations 2002 would have had to be complied with. They had not been. However, it was clear that, if Southwark's contention was right and S had been sent to ED's pursuant to a private fostering arrangement, the regulations relating to that arrangement had not been complied with either.
- As an alternative submission, Southwark contended that, if section 20(1) was satisfied and it had been under a duty to provide accommodation for S, it had fulfilled and discharged that duty by making arrangements for her to live with ED pursuant to section 23(6).
- It was common ground that, if S were living with ED pursuant to an arrangement made by the authority under section 23(6), the authority would not be obliged to pay for S's accommodation care and maintenance. In Re H (A Child) (Care Order: Appropriate Local Authority) 1 FLR 534,  EWCA Civ 1629, the Court of Appeal (Thorpe, Jonathan Parker and Dyson LJJ) approved the decision of Wall J (as he then was) in Re C (Care Order: Appropriate Local Authority)  1FLR 544 to the effect that, where a local authority arranged for children in care to live with their mother pursuant to section 23(6), the local authority was not providing accommodation for them.
- Finally, Southwark contended that relief should in any event be refused because the claim was out of time.
- Lloyd Jones J held that the requirements of section 20(1)(c) were satisfied and that Southwark was under a duty to provide accommodation for S. He construed the word 'prevented' widely, as, he said, was clearly the intention of Parliament. He considered that ED took S in at the request of Mr Dallas. The situation that had arisen in respect of S was a serious matter and it was clear, in the judge's view, that Mr Dallas was acting in pursuance of his public law duties in telephoning ED to ask her if she would take S in. The judge was satisfied that this was not a private fostering arrangement. He noted that there had been no contact between ED and the parents. All the arrangements, such as they were, were made between Mr Dallas and ED. The mother, who was the only person with parental responsibility, did not consent to the arrangement until some days later. The judge concluded that the duty to provide accommodation under section 20(1) had arisen and it must have been complied with pursuant to section 23.
- The judge then had to consider whether what had occurred was a placement involving the provision of accommodation pursuant to Section 23(2) (in which case the local authority had to pay) or the making of an arrangement for S to live with someone under section 23(6), in which case it did not. He ruled that section 23(6) could not apply because, before it could apply, the child had to be a child who was being looked after by the local authority. This meant that the local authority had already to be providing accommodation for the child (section 22(1)). Because by section 22(2) accommodation means accommodation which is provided for at least 24 hours, a child did not become a 'looked after' child until he or she had been accommodated by the authority for at least 24 hours. At the time when S went to live with ED, she had not yet been accommodated at all by the local authority.
- Finally the judge considered Southwark's submission that the application should fail because it had been brought too late. He set out the chronology and concluded that ED had acted properly making a complaint under the Children Act rather than taking proceedings for judicial review. He held that time did not begin to run until her complaint was rejected on 6th May 2005. The claimant should therefore have commenced proceedings on or before 6th August. In the interim, correspondence continued and it was clear that the claimant intended to bring proceedings. She had to obtain funding and this was not granted until 3rd August. On 3rd August, her solicitors had written giving Southwark 7 days in which to make proposals for settlement; otherwise proceedings would be begun forthwith. On 9th August Southwark asked the claimant to stay her hand while they took instructions. Thereafter, Southwark asked for further time and it was not until 20th September that Southwark finally indicated that it was not prepared to make any proposals. Proceedings were begun on 3rd October. The judge noted that it had not been suggested that there had been any prejudice either to public administration generally or to Southwark in particular. He considered it appropriate to extend time.
- The result was that the judge made a declaration that S had been looked after by Southwark between 22nd January 2004 and 6th June 2005 and was under a duty to maintain her during that period. He refused permission to appeal, saying that the case depended upon its own facts.
- Permission to appeal was granted by Sir Henry Brooke, who considered that the issues were fit for consideration by the Court of Appeal.
- Before this court, Southwark's stance had changed to some extent. Mr O'Brien on Southwark's behalf did not argue (as he had done below) that Mr Dallas had facilitated a private fostering agreement between ED and S's parents. Although he did not formally concede the point, he appears to have accepted the judge's finding that there was no agreement between ED and the parents could not be challenged. Instead, he argued (relying on the guidance note to which I have referred in paragraph 24) that a private fostering arrangement could come about without there being any agreement between the parents and foster parent, although of course, such an agreement was usual. Such an agreement was not necessary; a private arrangement could come about as, for example, this arrangement had come about, with a third party (in this case Mr Dallas) obtaining the agreement of the foster parent to look after the child and the parents consenting to that arrangement.
- So far as Section 20(1) was concerned, Mr O'Brien accepted that RB had been prevented from providing accommodation for S. However, he contended that Southwark was never under a section 20(1) duty because S never required accommodation. That was because accommodation was available for her at ED's home. If accommodation had not been available with ED, then Southwark would have been under a section 20(1) duty. In effect, the section 20(1) duty was on the verge of arising but, because of the willingness of ED to look after S, it never crystallised. Instead, what had happened was that, without there being any agreement between ED and the parents, ED had provided S with accommodation pursuant to a private arrangement. He accepted that, assuming that that was what had happened, Southwark had failed to comply with its duty to notify Lambeth of the existence of a private fostering arrangement in its area.
- In the alternative Mr O'Brien submitted that, if the section 20(1) duty had arisen and had crystallised, Southwark had fulfilled and discharged its duty by making arrangements for S to live with ED pursuant to section 23(6). The judge had been wrong to hold that section 23(6) could not apply because S had not yet been accommodated by the authority for at least 24 hours and was therefore not being looked after by the local authority. He submitted that the judge's construction of section 23(6) made the provisions of sections 20, 22 and 23 unworkable. He contended that a child became looked-after as soon as the duty under section 20(1) arose and it appeared that the child would need accommodation for at least 24 hours. The 24 hour provision was designed to prevent a child becoming looked-after if only a single night's accommodation were needed. This kind of situation could and did arise quite frequently, for example, where a parent had an accident or was delayed on a journey. The local authority might have to make overnight arrangements and that could be done without the child becoming looked-after. Sections 20, 22 and 23 should be construed so that the duty to look after the child arose if it appeared to the local authority that the child would need accommodation for more than 24 hours. If that were so, the local authority could then either place the child pursuant to section 23(2) or make arrangements for it to live with a member of the family, friend or someone connected with the child pursuant to section 23(6). The intention of the Act was that, as soon as practicable after the child had begun to be looked after, arrangements should if possible be made for it to live with someone with whom the child was familiar. Although it might be quite common for a child to be placed with local authority foster parents under section 23(2) for a short time while the authority was making section 23(6) arrangements, there was no reason why, if suitable arrangements could be made immediately, the child should not go straight into the section 23(6) arrangement. He invited the court to hold that the judge had erred in concluding that S had been placed pursuant to section 23(2).
- Mr O'Brien also submitted that, if the judge's ruling were to stand, the operation of these provisions of the Children Act would be 'distorted'. Local authorities would not be able to help to make private fostering arrangements. Nor would they be able to make section 23(6) arrangements until some time after the child had been accommodated. As soon as the authority became involved, it would be fixed with a section 20(1) duty. It would become liable to accommodate and maintain children in circumstances where that was not necessary or appropriate. Mr O'Brien submitted that the case raised issues of general importance for all local authorities.
- Mr O'Brien accepted that best practice had not been followed in this case. Whatever the legal basis for the arrangements for S, the relevant regulations had not been complied with. He also accepted that the arrangements for S had been made without adequate discussions with ED. She had not been given any proper explanation as to the basis on which she was taking responsibility for S. The arrangement was opaque. He indicated that Southwark would be prepared to 'look again' at the possibility of providing some Section 17 financial support for the period between January and April 2004. However, Southwark maintained that, from April 2004, all responsibility for S had transferred to Lambeth.
- Finally, Mr O'Brien sought to persuade the court that the judge had been wrong to extend time. Even after the complaints procedure was completed, the claimant had taken more than three months to commence proceedings.
- Mr Cragg for the respondent submitted that the serious circumstances which arose on 20th January 2004 plainly gave rise to a section 20(1) duty upon Southwark. S's father had assaulted her. She had no other relative in this country and there was no one in this country with parental responsibility for her. The local authority plainly had to provide her with accommodation and not merely on a temporary basis. Mr Cragg did not dissent from the proposition that it might have been possible for Mr Dallas to negotiate a private fostering arrangement with ED. However, he submitted that, on the facts, that had not happened. Mr Dallas had asked ED to take S in and had promised to make financial arrangements.
- Mr Cragg submitted that the judge's ruling in respect of section 23(6) had been correct but, even if it had not been, it was clear that what occurred on 20th January was not a section 23(6) arrangement. Such an arrangement would have to be explained and Southwark would have to be satisfied that ED was willing to take S on and to take full responsibility for her, including financial responsibility, on a long term basis. It would be most surprising if a person could find herself taking on so great a responsibility for a child without even realising what she was committing herself to.
- Finally, Mr Cragg submitted that this court should not intervene in the judge's exercise of his discretion in extending time. He had not misdirected himself and his conclusion was entirely reasonable.
Discussion and Conclusions
- We will deal first with the submissions on extension of time. It seems to us that this ground of appeal is quite hopeless. The judge accurately set out the chronology. It is not said - indeed it could not be said – that he was wrong to hold that time did not begin to run until the statutory complaints procedure had run its course. Thereafter, the claimant could not issue proceedings until she had obtained funding. There is no suggestion that she delayed in seeking funding. Once funding was available, shortly before the three month period elapsed, the claimant had confirmed her intention to proceed but Southwark asked for time to consider settlement. The claimant acted with reasonable promptness once Southwark had given a final refusal. No prejudice was claimed. In those circumstances, the judge's conclusion was plainly a proper exercise of his discretion. That ground of appeal fails.
- We turn to the substance of appeal. Was Southwark ever under a section 20(1) duty to provide accommodation for S? As we have said, before this Court, Southwark accepted not only that S was a child in need but also that her father, who had been caring for her, was, for the foreseeable future, prevented from providing such care. Southwark contended that its section 20(1) duty was on the verge of arising but never crystallised, because it did not appear to the authority that S required accommodation; ED was willing to provide it.
- We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to 'side-step' that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. Usually, a private fostering arrangement will come about as the result of discussions between the proposed foster parent and either the child's parent(s) or a person with parental responsibility. But we accept that there might be occasions when a private arrangement is made without such direct contact. We accept that there might be cases in which the local authority plays a part in bringing about such an arrangement. However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The 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 agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.
- In the present case, the local authority took a central role in making the arrangements for S to live with ED. It directed the school that the father must not be allowed to take S away. It arranged a meeting attended by all the relevant parties. The father was told that he must have no contact with S. Those factors are far more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement. The father consented to the proposed arrangement with ED. S was consulted as to her wishes. Mr Dallas contacted ED to ask her if she would take S in. Mr Dallas delivered S to ED's home and checked that the arrangements were satisfactory. Those factors were equally consistent with an exercise of statutory powers as with the making of a private arrangement. However, there was no contact between ED and either parent. Mr Dallas said nothing to ED, either on the telephone or the following day at his office, about the arrangement being a private one, in which she would have to look to the parents for financial support or to Lambeth for section 17 discretionary assistance. Far from it, he gave her to understand that Southwark would arrange financial support. In our judgment, the judge was quite right to conclude that this was not a private fostering arrangement. Indeed, it is hard to see how he could have come to any other conclusion.
- We conclude therefore that by the afternoon of 20th January 2004, Southwark was under a section 20(1) duty to provide accommodation for S. Mr Dallas acted thereafter in fulfilment of that duty. The next question is whether he placed S with ED under section 23(2) or made arrangements for her to live with ED pursuant to section 23(6). The judge concluded that section 23(6) could not apply because at the time the decision was made for S to go to ED, she had not been accommodated by Southwark for 24 hours and was not therefore being looked after by them. On this point, we are satisfied that the judge fell into error. We say so for the following reasons.
- It is clear from the heading to section 23 that the whole section applies to children who are being looked after by a local authority. Exactly the same pre-condition applies to a section 23(2) placement as applies to a section 23(6) arrangement. In either case the child must already be a looked-after child. There was thus an inconsistency within the judge's reasoning in that he was prepared to hold that S had been placed under section 23(2) but was not prepared to hold that arrangements could have been made for her pursuant to section 23(6). Because the same pre-condition applied, either both disposals were available or neither was available.
- It seems to us that it must have been the intention of Parliament that both methods of disposal should be available as soon as the section 20(1) duty arose. It cannot have been intended that a child would have to be looked after for 24 hours before either a placement or an arrangement could be made under section 23. Such a scheme would be inconsistent with the provisions of the Fostering Services Regulations which (at Regulation 38) permit a local authority to make an emergency placement. It is obvious that that provision is intended to be immediately available; it would make no sense if it was not. In any event, a scheme which required that a child had to be accommodated for 24 hours before it became looked after would be virtually unworkable. During the hearing, May LJ observed that there would be 'the problem of the chicken and the egg'. If a child could not be looked after until he had been accommodated for 24 hours, how was he ever going to be provided with accommodation? We add that such a scheme would plainly not be in the interests of the child concerned.
- It was suggested by Mr Cragg for the respondent that the normal course of events which would follow when a section 20(1) duty arose would be for the child to be placed with a local authority foster parent pursuant to section 23(2) and then, at some later time (at least 24 hours later), arrangements would, if reasonably practicable, be made to enable the child to live with a relative, friend or someone connected with him. When those arrangements were made, the section 20(1) duty would have been discharged and the child would cease to be looked after.
- We accept that, for practical reasons, that will very often be the course that events take. However, we do not accept that that course must necessarily be taken as a matter of law. The pre-conditions to disposal under section 23(2) and 23(6) are the same, namely that the child must be a looked-after child. In our judgment, the child is being looked after by the local authority as soon as the section 20(1) duty arises. It is not necessary that the child should have been accommodated for 24 hours before s/he is being looked after. We accept Mr O'Brien's submission that the child becomes looked-after when it appears to the local authority that (for one of the reasons set out in the section) the child appears to require accommodation for more than 24 hours. If that condition is satisfied, as it was here, the section 20(1) duty arises immediately and the authority must take steps to ensure that accommodation is provided. Either it can provide it itself by making a section 23(2) placement or it can make arrangements for the child to live with a relative, friend or connection, pursuant to section 23(6). Usually, and ideally, a section 23(2) placement will be temporary and section 23(6) arrangements for a child to live with someone will provide a longer term solution to the child's needs.
- In practice, there may be very little difference between the local authority facilitating a private fostering arrangement and making arrangements pursuant to section 23(6). The practical effects may well be identical so far as the child and the foster parent are concerned. For the local authority, the distinction should be observed because they would have to supervise a private fostering arrangement within their area.
- We have said that, in the present case, a section 20(1) duty arose during the afternoon of 20th January 2004. It would have been open to Southwark to comply with its duty by placing S with ED thereby providing accommodation at its expense under section 23(2). Alternatively, it could have discharged its section 20(1) duty by making arrangements for S to live with ED at her expense.
- The question is what did Southwark in fact do? The judge did not determine this issue because he thought that section 23(6) could not possibly apply. In our judgment, there is no need for this court to remit the case for further consideration by the judge. The evidence is clear. The judge accepted ED's evidence and there was nothing to contradict it. This court should reach its own conclusions on this factual question.
- In our view, the answer is clear. Mr Dallas asked ED whether she was willing to take S in. Far from explaining to her that what he had in mind was that she should make herself completely responsible for S's financial support, he told her that financial arrangements would be made. He implied that 'someone from the office' would make them. ED's evidence, accepted by the judge, was that she thought that Social Services in the person of Mr Dallas were asking her to look after S and she was willing to cooperate with them. We accept that her understanding of the position is not conclusive. However, it seems to us to have been a wholly reasonable one. No reasonable bystander listening in to her two conversations with Mr Dallas (one on the telephone and one in his office) would have thought that Southwark was shedding its legal responsibility to provide accommodation for S and that ED was taking it on. We said, in respect of the situation where a local authority was facilitating a private fostering arrangement, that the authority ought to ensure that the parties understood what they were agreeing to. It seems to us that a full explanation and a proper understanding is even more imperative where the local authority is seeking to discharge its obligations by arranging that someone else will shoulder them. Here, as Mr O'Brien accepted, the nature of the arrangement was left uncertain and, in our view, the only inference that can reasonably be drawn is that Southwark was asking ED to accommodate S on their behalf and at their expense. The fact that Southwark did not comply with the regulatory regime is a pointer towards the opposite conclusion but the remaining facts and circumstances all point to this being an exercise of Southwark's statutory duty to provide accommodation for S. Whether what happened was a placement with 'any other suitable person' pursuant to section 23(2)(a)(iii) or whether it was 'such other arrangement as seemed appropriate' to the authority pursuant to section 23(2)(f), we cannot say. But we are satisfied that it was not a section 23(6) arrangement.
- Accordingly, although our reasoning process is somewhat different from that of the judge, the result is the same and we dismiss the appeal.
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