COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QB DIVISION, ADMINISTRATIVE COURT
Mr Justice Lloyd Jones
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LADY JUSTICE SMITH
| London Borough of Southwark
|- and -
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Mr Stephen Cragg (instructed by Messrs Fisher Meredith) for the Respondent
Hearing date : 2 February 2007
Crown Copyright ©
Lady Justice Smith : This is the judgment of the Court.
The Factual Background.
The Statutory Framework
"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."
"(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."
"(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.
"In subsection (1) 'accommodation' means accommodation which is provided for a continuous period of more than 24 hours."
"(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."
"… 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
The hearing before the Judge.
Discussion and Conclusions