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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nationwide Association Of Fostering Providers, R (on the application of) v Bristol City Council & Ors  EWHC 3615 (Admin) (15 December 2015)
Cite as:  EWHC 3615 (Admin),  WLR(D) 525,  PTSR 932
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of) Nationwide Association of Fostering Providers
|- v -
|(1) Bristol City Council
(2) Leeds City Council
(3) Suffolk County Council
Mr Peter Oldham QC (instructed by Bristol City Council, Leeds City Council and Suffolk County Council) for the Defendants
Mr James Goudie QC (instructed by Local Government Association Legal Department) for the Interested Party
Hearing dates: 3-4 November 2015
Crown Copyright ©
Mr Justice William Davis :
22C Ways in which looked after children are to be accommodated and maintained
(1) This section applies where a local authority are looking after a child
(2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3) A person ("P") falls within this subsection if–
(a)P is a parent of C;
(b)P is not a parent of C but has parental responsibility for C; or
(c)in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made.
(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so–
(a)would not be consistent with C´s welfare; or
(b)would not be reasonably practicable.
(5 )If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6 )In subsection (5) "placement" means–
(a)placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b)placement with a local authority foster parent who does not fall within paragraph (a);
(c)placement in a children´s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or
(d)subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.
(7) In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)–
(a)give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;
(b)comply, so far as is reasonably practicable in all the circumstances of C´s case, with the requirements of subsection (8); and
(c)comply with subsection (9) unless that is not reasonably
(8) The local authority must ensure that the placement is such that–
(a)it allows C to live near C´s home;
(b)it does not disrupt C´s education or training;
(c)if C has a sibling for whom the local authority are also providing accommodation, it enables C and the sibling to live together;
(d)if C is disabled, the accommodation provided is suitable to C´s particular needs.
(9) The placement must be such that C is provided with accommodation within the local authority´s area.
(10) The local authority may determine–
(a)the terms of any arrangements they make under subsection (2) in relation to C (including terms as to payment); and
(b)the terms on which they place C with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).
(11) The appropriate national authority may make regulations for, and in connection with, the purposes of this section.
(12) In this Act "local authority foster parent" means a person who is approved as a local authority foster parent in accordance with regulations made by virtue of paragraph 12F of Schedule 2.
The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant's interest is one of the factors to be weighed in the balance. This is discussed in greater detail in the classic work Wade's Administrative Law, 5th ed. (1982), pp. 587–591.
The evidence of the approach of the Defendant local authorities
Bristol City Council
Leeds City Council
Suffolk County Council
The Claimant's evidence
The statutory framework
(1) 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.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(5) Every local authority–
(a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23 or 24; and
(b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
(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 stand referred to their social services committee under the [1970 c. 42.] Local Authority Social Services Act 1970.
(2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours.
(3) It shall be the duty of a local authority looking after any child–
(a) to safeguard and promote his welfare; and
(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of–
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental responsibility for him; and
(d) any other person whose wishes and feelings the authority consider to be relevant,
regarding the matter to be decided.
(5) In making any such decision a local authority shall give due consideration–
(a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c) to the child´s religious persuasion, racial origin and cultural and linguistic background.
(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 of his; or(iii) any other suitable person,
on such terms as to payment by the authority and otherwise as the authority may determine;(b) maintaining him in a community home;(c) maintaining him in a voluntary home;(d) maintaining him in a registered children´s home;(e) maintaining him in a home provided by the Secretary of State under section 82(5) on such terms as the Secretary of State may from time to time determine; or(f) making such other arrangements 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 and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made.
(5) Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the Secretary of State.
(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.
(7) Where a local authority provide accommodation for a child whom they are looking after, they shall, subject to the provisions of this Part and so far as is reasonably practicable and consistent with his welfare, secure that–(a) the accommodation is near his home; and(b) where the authority are also providing accommodation for a sibling of his, they are accommodated together.
General duty of local authority to secure sufficient accommodation for looked after children
(1) It is the general duty of a local authority to take steps that secure, so far as reasonably practicable, the outcome in subsection (2).
(2) The outcome is that the local authority are able to provide the children mentioned in subsection (3) with accommodation that–(a) is within the authority´s area; and(b) meets the needs of those children.
(3) The children referred to in subsection (2) are those–(a) that the local authority are looking after,(b) in respect of whom the authority are unable to make arrangements under section 22C(2), and(c) whose circumstances are such that it would be consistent with their welfare for them to be provided with accommodation that is in the authority´s area.
(4) In taking steps to secure the outcome in subsection (2), the local authority must have regard to the benefit of having–(a) a number of accommodation providers in their area that is, in their opinion, sufficient to secure that outcome; and(b) a range of accommodation in their area capable of meeting different needs that is, in their opinion, sufficient to secure that outcome.
(5) In this section "accommodation providers" means–
This duty to ensure a sufficiency of accommodation providers was not reflected in any particular provision of the Act as originally enacted. The core duty is to take steps to secure sufficient accommodation within the local authority's area which meets the needs of looked after children who cannot live with their parents or someone with parental responsibility for them. In taking those steps the local authority must "have regard to the benefit of having" both a number of providers and a range of accommodation. No duty is imposed to ensure that there are independent providers as well as in-house providers.
(2) Each person and body to whom this section applies must make arrangements for ensuring that–
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.
It is said that this emphasises that a local authority must discharge its functions with the child's welfare at the centre of its decisions. That much is true. It does not assist in determining whether the duty in Section 22C(5) is as put forward by NAFP. The Defendant local authorities obviously accept that they should safeguard and promote the welfare of children. They argue that their processes do just that. The duty imposed by Section 11(2) is entirely general and is a "have regard to" duty. NAFP's argument on this point is circular.
Guidance and other explanatory material
"I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear."
NAFP argues that the meaning of Section 22C is clear. The Defendant local authorities supported by the LGA agree albeit that they disagree about the meaning. In those circumstances it is difficult to see how any party can suggest that Section 22C is ambiguous or obscure. More important the statement of Lord Adonis to which I have been referred gives no assistance at all as to the meaning of Section 22C. He told the House of Lords that the Government's intention was to improve stability in child care giving the example of the restriction on out of authority placements to demonstrate how this intention was to be achieved. No statement by Lord Adonis to which I have been referred gives any indication – clear or otherwise – about what was intended when requiring local authorities to find "the most appropriate placement". The Parliamentary materials to which I have been referred do not satisfy the Pepper v Hart test.
(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.
The general purpose of the guidance is described at paragraph 1.4 of the document. It is said to be guidance which, together with the 2010 Regulations (supra), sets out how local authorities should carry out their responsibilities under Part III of the Act. The aim of the legislation is described as the provision for looked after children of the most appropriate placement to meet their needs and improve their outcomes. Chapter 3 of the current guidance deals with "Placement under the 1989 Act". It was first published in March 2010. Paragraph 3.3 describes "the most appropriate placement" as "the one (the local authority considers) will best promote and safeguard the child's welfare". Paragraphs 3.87 to 3.90 deal specifically with placements with local authority foster carers (a term of art which includes independent foster providers). The guidance states that Section 22C(5) and 6(a) and (b) require a local authority to be satisfied that placement with foster carers is the best way of meeting their duty to the looked after child and that the specific placement is the most appropriate. The term "specific placement" is not defined. It will be recalled that subsections 6(a) and 6(b) provide for different kinds of foster placement. The two kinds of foster placement for which provision is made are specific and different from each other.
- The fact that no party puts forward this construction is not determinative. I gave the parties full opportunity to deal with the issue and I have had full argument on the topic. I am entitled to reject the consensus view if I am satisfied that it is wrong.
- The construction does not involve the insertion of the words "the type of" in the sub-section. Section 22C(5) refers to "placement". Section 22C(6) defines "placement" by reference to four types. It is the statutory language which leads to the conclusion that "placement" in Section 22C(5) means what is set out in Section 22C(6).
- The construction only is less advantageous to any particular looked after child if Part III of the Act read as a whole does not provide for the welfare of the looked after child. That is not the case. In those circumstances the suggested construction does not infringe Article 3 of the UN Convention.
- For the reasons given at paragraphs 50 and 51 above the submission in relation to paragraph 3.87 of the statutory guidance is not tenable.
- The fact that the local authority would need to consider the individual child's needs is clear from the duties imposed by Sections 17 and 22. The issue in relation to Section 22C(5) is whether a particular duty is imposed of the kind put forward by NAFP.
- The language of Section 22C(7)(a) does not require a comparison of specific placements; rather the reverse. This provision simply requires the local authority to give preference to a placement within Section 22C(6)(a) over placements falling within other paragraphs in Section 22C(6). That says nothing about specific placements within the various paragraphs.
- The focus on the particular child in Section 22C does not help with the construction of Section 22C(5). The welfare and interests of the particular child are protected by the preceding sections of the Act. The word "placement" is defined in Section 22C(6). It is that definition which is critical.
- The duty is not a procedural duty. It is what the LGA term an outcome duty. How a local authority goes about fulfilling that duty is a matter of policy within the discretion of the local authority subject to any express regulatory provisions e.g. Sections 22(4) and 22(5) of the Act.
- The word "appropriate" of itself implies an exercise of judgment by a local authority. Moreover, the judgment is one subject to the "opinion" of the local authority.
- Nothing in the statutory provision whether in Part III of the Act or in the Regulations made thereunder indicates that the duty in Section 22C(5) should be circumscribed as NAFP suggests.
- As discussed in more detail at paragraphs 35 to 46 above the statutory provisions require a local authority to make decisions in relation to looked after children in its care in such a way as to safeguard and promote their welfare. They do not set out precisely how a local authority should make such decisions.
- As set out at paragraphs 47 to 54 above none of the statutory guidance or other available materials supports a duty as contended for by NAFP.
- The logic of NAFP's construction of Section 22C(5) would require a local authority in every case to canvass all potential available placements of whatever kind i.e. including children's homes and "other arrangements". NAFP do not contend for this. If NAFP's construction of Section 22C(5) is correct, it is not clear why local authorities do not have such a duty.