Case No: C1/2010/1303

Neutral Citation Number: [2011] EWCA Civ 1303
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE BLACK
5478/2009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/11/2011
Before :

LORD JUSTICE WARD
LORD JUSTICE RIMER
and
SIR STEPHEN SEDLEY
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Between:

	The Queen
On the application of SA (A child by her Litigation Friend SH)	

Respondent 	
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	Kent County Council	Appellant 	

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(Transcript of the Handed Down Judgment of
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Mr Nicholas O’Brien (instructed by Kent County Council) for the appellant 
Mr Patrick Roche (instructed by Ridley & Hall Solicitors) for the respondent
Mr Steven Kovats QC (instructed by Treasury Solicitor ) for the Secretary of State for Education
Hearing date: 18th May 2011
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Judgment
LORD JUSTICE WARD: 
The issue at the heart of this appeal
1.	It is, inevitably, money.  Making financial provision for children being looked after by local authorities under the Children Act 1989 (the Act) is expensive.  Not surprisingly, local authorities are keen to trim their obligations to the minimum possible.  According to statistics produced by the Department of Education 64,400 children were being looked after by local authorities in England as at 31st March 2010.  38,200 of those were subject to interim or full care orders, 4,600 were freed or placed for adoption and 21,200 were voluntary placements under section 20 of the Act.  5,200 children were in foster placements with a relative or friend. The legal issue in this appeal, to state it broadly, is whether the claimant, A, is a child being looked after the local authority as that phrase is defined in section 22 of the Act.  In the more precise terms posed by the local authority in its skeleton argument, it is “whether, as a matter of law, a child who is not the subject of an interim care order can be a looked after child where she goes to live with a relative in circumstances where the local authority is involved in setting up and funding the arrangement.”  If A is “a looked after child”, she (or her maternal grandmother with whom she is placed) would be entitled to a fostering allowance of £146 per week.  The local authority contend that they are acting lawfully in paying her (or her grandmother) a kinship allowance of only £63 per week pursuant to section 17 of the Act on the basis that she is living with her grandmother under a private family arrangement.  
2.	On 7th May 2010 Black J. (as she then was) upheld the claimant’s claim that the local authority were acting unlawfully and ordered that they pay her the appropriate weekly allowance for a looked after child.  She granted permission for this appeal, saying:
“… this is undoubtedly a difficult area of the law with many uncertainties and, in my view, would benefit from consideration by the Court of Appeal.”
The matter is seen by the Secretary of State for Education, who has ministerial responsibility for the legislation in question, the Children Act 1989, to be important enough to intervene in this Court.  
The background
3.	A was born in April 1995.  Her parents never married.  They were not good parents.  In September 2003 a probation officer preparing a report for the court following her mother’s conviction for shoplifting referred A’s plight to the Social Services Department of the local authority because of concern that her mother was a manic depressive and that the relationship between her mother and her father was characterised by regular incidents of severe domestic violence.  Because the parents were then separated (albeit not for long) and because her mother was receiving medical attention, no intervention was then made by the local authority.  However, in October 2004 A’s school referred her to the Social Services Department because at times she was not being collected from school and had to be cared for by a neighbour overnight.  She was inappropriately dressed.  It was decided to carry out a core assessment.  When this assessment began in 2004 the parents had again separated and A was then living with her father and his partner.  At the time mother had no money either to feed A or to provide a home for her.  On 14th December 2004 the Social Services Department made contact with Mrs SH, A’s maternal grandmother, and a few days later met with her.  As Black J. found, the social worker asked SH in general terms whether she would be prepared to look after A and grandmother responded that she would want to be considered as a carer for A if she were to be taken away from her mother.  In the days that followed the social worker had meetings with both parents about grandmother caring for A.  Father was agreeable.  At first mother objected but later wrote on 17th December 2004 informing the local authority that she had spoken to the grandmother who was fully prepared to look after A.  Grandmother clearly felt she had to make an immediate decision and that if she did not offer to care for A, she risked losing her.  The social worker confirmed the arrangement for A to go to grandmother in telephone discussions with the mother, father and grandmother.  
4.	Thus an agreement, written on the local authority’s headed paper, was signed on 17th December 2004 by mother, father and grandmother and the social worker setting out that A would reside with grandmother until the core assessment was completed and the outcome discussed.  Contact was regulated and in mother’s case was to be supervised.  The grandmother was required to agree that she would adhere strictly to the contact arrangements set out and that she would contact social services if she had any further concerns.  The social workers took A to grandmother after school on 17th December 2004.  
5.	The judge made these findings:
“GM [the grandmother] says that she did not initiate any conversations with LA [the Local Authority] before A came to live with her; all discussions were initiated by social services.  The impression given by [the social worker’s] statement, in paragraph 5, that it was a telephone call from GM on 4 December 2004 that began the process which ultimately culminated in A coming to live with her is a wrong impression and arises from the omission from the statement of the fact, clearly recorded in the running records, that GM's telephone call was in response to a message left for her by social services. There is no doubt, in the light of this, that it was social services who first approached GM about A.  The records make quite clear that from this point on, the social worker was centrally involved in sorting out what arrangements should be made for A, whose situation LA had rightly recognised as damaging and untenable. 
59.  GM says, furthermore, that the arrangement for A to live with her resulted from her discussions with the social worker and not by virtue of any discussions with M.  The only indication to the contrary is the reference in M's letter of 17 December to having spoken with her mother.  By this point, however, M had already been approached by the social worker to agree to A going to live with GM.  She had refused this option on 15 December.  Given that that was her position on 15 December and given the context described in the letter, it is obvious that any conversation M had with GM could only have taken place some time after LA opened the discussions with GM that led ultimately to A going to live with her.  It would be wrong, therefore, to class any such discussion between M and GM (if indeed it took place) as in any way the origin of the arrangement. 
60.  GM says that she was left in no doubt in December 2004 that LA were in control of the placement.  The degree and nature of LA's involvement in the situation, as revealed by the contemporaneous documentation, is consistent with this.  GM says that nothing was said to her during any of her conversations that month to suggest that it was a private arrangement and it is not asserted on behalf of LA that either the nature of the placement or the question of financial support were ever addressed explicitly with her by social services.  GM says that if it had been suggested to her that it was a private arrangement, she would have asked how she was to keep A.  She knew neither of A's parents were in a position to offer assistance and she expected financial and practical support from LA. 
61.  By January 2005, GM was indicating that she would not be able to look after A on a long term basis.  There seem to have been a number of factors contributing to this including work pressures, her age, and A's behaviour.  At an early stage, the social worker offered a package of practical assistance but GM did not feel it sufficient to address the problems she had, even though it is recorded that she was aware that it could well mean foster care for A if she was unable to care for her.  LA were exploring the options for A, including the possibility that she might live with F, but he was facing criminal proceedings and ultimately went to prison.  They plainly saw foster care as a real possibility and it was the recommendation of the core assessment that a foster placement should be identified. 
62.  The social worker's significant involvement in day to day arrangements for A appears clearly from the records.  … 
63.  One of the things GM said to the social worker on 11 March was that she was struggling financially.  This seems to be the first financial discussion going beyond the general expression of financial anxiety on the part of GM.  By May 2005, LA had arranged a kinship payment for GM of approximately £63 per week but GM had been told that this was significantly less than she ought to be receiving, as she told the social worker.  LA were still considerably involved in A's life at this point.  The records show that they were exercised by the involvement of another family friend (GH), with whom A had been staying overnight and who might have been able to offer A a home, but who had a past conviction for murder.  They continued to have great concerns about A returning to live with M and it is recorded that the social worker advised M that if she made precipitate attempts to have A back on an unplanned basis, she would discuss with her managers taking legal action to prevent this.  The temporary and precarious nature of the placement with GM remains obvious from the records.  For example, one of the records for 12 May 2005 says “In the short term therefore I am to contact GM to see if she can hold on to A and to pursue our application re GH and as far as seeing if Social Services will agree to psychological assessment and a kinship assessment on GH both of which she has agreed to”.
64.  In mid May 2005, M came to stay with GM and A and started to take A to school and collect her.  Social services' records about this issue show that the social worker was concerned about this arrangement and became involved in resolving the practicalities to LA's satisfaction.  The social worker continued to be much involved with the family through June.  On 12 July 2005, there was a family group conference. The records for the second half of the year suggest that things began to settle down for the household, which seems at that point to have included A, GM and M, although M later moved out. 
65.  Eventually, the social worker's role in the family effectively ceased.  The records show no contact with GM after September 2006 which accords with what [the social worker] sets out in her statement.  A has, of course, continued to live with GM throughout and there is every indication that she will continue to do so.”
6.	The judge’s conclusion was:
“73.  It seems to me that the pattern of LA's involvement over time is relevant because it assists in characterising the true nature of their actions, but that a particularly crucial period, which needs to be closely evaluated, is the time when A actually came to live with GM including the time immediately before and after that. It is material that, although social services sought to regulate the living arrangements that should be in place for A, notably in the agreement of 17 December 2004, no one from social services ever set out for GM, at that time, the ambit of any financial help that might be available for her and certainly no one told her that she would, essentially, be on her own with regard to financing A's stay except in so far as discretionary payments might be made under s 17. I do not accept Mr O'Brien's argument that it is unnecessary to do this where the prospective carer is a relative. As I have already said, the fact of the relationship is relevant in evaluating what happened and I have taken it into account, but GM's circumstances were not such that she would have been prepared or able to take A on whatever assistance social services would or would not be offering. Her fairly rapid decision that she could not in fact care for A, which she had reached by the beginning of January 2005, demonstrates this quite clearly. Smith LJ said in Southwark that the local authority must ensure that the parties understand what it is that they are agreeing to. Just as in that case, the nature of the arrangement here was left uncertain and GM was in no position to give informed consent to taking A on under the umbrella of, at most, s 17.
74.  I am forced to the conclusion, from my examination of all the facts, that the presence of GM on the scene did not enable LA to side-step their section 20(1) duty.  That duty came into existence and they then discharged it by a placement under section 23(2) rather than section 23(6).”  
Discussion
7.	At the heart of this case lies the proper construction to be given to Part III of the Act.  This deals with “Local Authority support for children and families”.  It has been extensively amended by the Children and Young Persons Act 2008 which came into force after the judgment under appeal.   I do not propose to add to the length of this judgment by expressing any view as to how those amendments affect the present operation of sections 17 and 23 of the Act as they stood at the time and how they may affect a local authority’s liability to provide support for the foster carers, whether relatives, friends or outsiders.  
8.	Part III has an important part to play in the understanding and the operation of the Act.  Part I is introductory and contains the cornerstone of the Act that the child’s welfare shall be the court’s paramount consideration.  Part II regulates disputes concerning children, section 8 giving the court power to make residence orders, contact orders, prohibited steps orders and specific issue orders.  Part IV provides for care and supervision orders where the local authority intervene and, by obtaining a care order, acquire parental authority for the child.
9.	Part III is sandwiched between Parts II and IV, the private and public law parts of the Act.  That is no accident.  It gives certain powers to and imposes duties on the local authority to provide support for children and (it should be noted) families.  The philosophy underlying the Act was to enhance and protect the integrity of the family and to strive to keep children within their family where at all possible, if necessary with the help provided by Part III, before resorting to the removal of children under care orders.  When I say “removal” I do not forget that it is perfectly possible, though not usual, to place children with their parents under the aegis of a care order.  
10.	Section 17 is a key provision, the material parts of which are as follows:
“Provision of services for children in need, their families and others.
(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 I of Schedule 2.
(3)  Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
…
(6)  The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
…
(10)  For the purposes of this Part a child shall be taken to be in need if-
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; 
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or 
(c) he is disabled, 
and “family” in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
…”
11.	There can be no dispute about A being a child in need.  She had suffered significant harm due to the lifestyle to which she was subjected whilst in her parents’ care which had caused her both emotional and physical harm and had impaired her development: moreover neither parent was able at the material time to offer her a proper home.  As will be seen, being a child in need is the trigger which operates much of Part III including section 17.  It is clear that section 17 imposes, as it says, a general duty under subsection (1) and gives the discretionary power under subsection (6) to provide accommodation and in exceptional circumstances to give assistance in cash.  I am not at all sure that A’s circumstances were truly exceptional, but the point was never taken and I say no more about it.
12.	I move to section 20.  
“20.  Provision of accommodation for children: general
(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.”
It is not disputed that A falls within section 20(1)(c), her parents not being able to provide her with suitable accommodation and thus the duty is imposed on the local authority to provide accommodation for her.  (It may be noted, en passant, that section 20 exemplifies the underlying philosophy of the Act because it provides in subsection (7) that the local authority may not provide accommodation under this section if a person who has parental authority and is willing and able to provide or arrange for accommodation objects to the local authority doing so.  Moreover, by virtue of subsection (8), any person with personal responsibility may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.  I should record that there is an exception to this control exercised by those with parental responsibility but I need not elaborate.  The point is that in cases of “voluntary care”, the parents are, by and large, in the driving seat: if the local authority does not like it, the local authority must start care proceedings under Part IV.)
13.	The next part of Part III deals with duties of local authorities in relation to children looked after by them.  
“22.  General duty of 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 services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under section 17, 23B and 24B.
(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.
…”
14.	There are three points to note about section 22.  
(1)  If the child is in the care of the local authority – and he will be in their care when an interim care order is made because, by virtue of section 38(11), a care order includes an interim care order under section 38 – he is a child who is looked after by the local authority.  That is the plain effect of section 22(1)(a).  As we shall see, if the child is in care, then the local authority has a duty to provide accommodation for him.  
(2)  The other way a child becomes looked after by the local authority is set out in subsection (1) (b), namely, by being provided with accommodation in the exercise of its social services functions.   The functions which stand referred to the social services committee under the Local Authority Social Services Act 1970 include those under Part III of the Act.  Thus they will include the functions exercised under sections 20, 22 and 23.  
(3)  Section 17 is, however, expressly excluded.  Consequently if A was provided with accommodation under section 17, she was not being looked after by the local authority.  In this regard Baroness Hale of Richmond’s strictures must be borne in mind:
“… where a local children’s services authority provide or arrange accommodation for a child, and the circumstances are such that they should have taken action under section 20 of the 1989 Act, they cannot side-step the further obligations which result from that duty by recording or arguing that they were in fact acting under section 17 or some other legislation.  The label which they choose to put upon what they have done cannot be the end of the matter:”
see paragraph 42 of Regina (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535.  
15.	If section 20 imposes the duty to provide accommodation for a child in need, then section 23 informs the local authority how to go about fulfilling that duty.  The proper construction to be placed on section 23 is the crucial issue in this appeal.  It provides:
“23.  Provision of accommodation and maintenance by local authority 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 appropriate national authority) [and I interpolate that there are none] 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 (subject to section 49 of the Children Act 2004);
(aa) maintaining him in an appropriate children’s home; or
(f) making such other arrangements as—
(i) seem appropriate to them; and
(ii) comply with any regulations made by the appropriate national authority.  
(2A)  …
(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 appropriate national authority.
(5A)  For the purposes of subsection (5) a child shall be regarded as living with a person if he stays with that person for a continuous period of more than 24 hours. 
(6)  Subject to any regulations made by the appropriate national authority 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.
…”
16.	For the sake of completeness I should mention that “relative” is defined in section 105 to mean a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parents.
17.	Untrammelled by previous authority I see section 23 operating in this way.  The starting point for any question of construction is to look at the section as a whole and to see section 23 as part of Part III and to construe the Part as a whole.  Part III seems to me to work in this way.  There is a general duty imposed by section 17 to provide a range and level of services which may (not must) include providing accommodation to or for children in need: section 17(6).  There is a specific general duty under section 20 to provide accommodation for a child in need in listed circumstances, including, as here, where the parents cannot provide it themselves.  If the local authority provides accommodation under section 20, the child is then looked after by the local authority: section 22(1).  How the local authority provides accommodation for children they are looking after is prescribed by section 23.  (I add, parenthetically, that there is oddly something of the chicken and egg about the interrelationship of sections 22 and 23 – which comes first?   Section 23(2) seems to apply if the child is already “being looked after” whereas under section 22(1) the child is not looked after until the social services function under section 23(2) of providing accommodation has been exercised.)
18.	Looking at the operation of section 23, subsection (1) deals with the local authority’s duty to children they are looking after.  If the child is in care, he is a looked after child by virtue of section 22(1)(a) and as a child in care he must be provided with accommodation: section 23 (1)(a).  Subsection (2) deals with other children being looked after, not being children in care under a care order, often called children “in voluntary care”.  Section 23(2) provides that the local authority shall (not may as in section 17(6)) “provide accommodation” (and let us not forget it, maintenance as well) in three specified ways: 
“(a) placing him” with a category of persons, 
“(aa) maintaining him” in a children’s home, and 
“(f) making other arrangements” as seem appropriate.
Thus making arrangements under subsection (6) is as much a means of providing accommodation as is placement under subsection (2)(a).  
19.	Subsection (6) fills the important purpose inspiring the whole Act, namely, striving to keep the child in his family rather than placing him with those who have no connection with him.  In the same way, section 17(1)(b) makes it clear that in providing the range of services appropriate to the child’s need, the local authority’s general duty is to promote the upbringing of the child by their family.  In my judgment section 23(6) read with section 23(2) prescribes the preferred batting order in deciding where the child is to live – parent, person with parental responsibility, relative, friend, other person connected with the child, but if not one of these, then some other family, a children’s home, some other arrangement.  
20.	If it is consistent with the child’s welfare and reasonably practicable to make arrangements to enable the child to live with a relative, like this grandmother,  then the local authority must make those arrangements.  If the arrangements can be made, then the child is placed with that relative.  The local authority will have met its duty to provide accommodation for the child.  The child has become one who is looked after by the local authority.  Because the local authority looks after her, the local authority must maintain her.  In my judgment the whole thing hangs together as one piece.  
21.	I began my explanation of the meaning of section 23 by emphasising that my views were untrammelled by previous authority.  There is some previous authority touching on the meaning of these words.  The question is whether we are constrained by that authority.  Before going there, I should in deference to Black J. set out her view.  She said:
“28.  …  The reported cases proceed upon the basis that s 23(2) and s 23(6) contain two distinct routes by which a local authority may fulfil their duty in relation to accommodation for a child and that these two routes have different consequences so that if the local authority place a child under s 23(2), the child remains looked after, whereas if the local authority make arrangements about accommodation under s 23(6), he does not.  My difficulty is that I wonder whether there is not, in fact, one overarching provision – s 23(2) – together with a number of subsidiary provisions designed to define how the local authority is to go about fulfilling that s 23(2) duty.  I continue to harbour the doubts that I expressed in GC v LD …  However … I am bound by the decided cases in any event …
29.  The existing authorities require a two stage analysis to determine whether a child such as A is looked after or not.  The first port of call is s 20(1); did it appear to the local authority that a child in need required accommodation as a result of one of the prescribed circumstances?  If the answer to that question is in the affirmative and a s 20(1) duty to provide accommodation arose, the second question is how one should characterise what the local authority in fact did to comply with that duty; did they make arrangements for the child under s 23(6) rather than under s 23(2)?
30.  In contrast, if s 23 is, in fact, a unified scheme, only one stage would be involved.  If the s 20(1) question is determined in the affirmative, the local authority would be providing accommodation for the child no matter whether they managed to make arrangements for him to live with someone who fell within s 23(6) or not. ”
With respect to those who take the other view, I share Black J’s unease and commend her preferred analysis.  
22.	The first case is Re C (Care order: Appropriate Local Authority) [1997] 1 FLR 544.  The question for the court was which local authority should be named in interim care orders and the subsequent final care order as the designated local authority.  Under section 31(8) of the Act the local authority designated in a care order must be the authority within whose area the child was ordinarily living.  Section 105(6) provides that in determining the ordinary residence of a child for the purposes of the Act there must be disregarded in any period in which he lives in any place “(c) while he is being provided with accommodation by or on behalf of a local authority.”  In that case the children at all material times lived with their mother.  When the proceedings were instituted, she and they were undoubtedly ordinarily resident in Hackney but then during the course of the proceedings they all moved to Surrey.  Hackney contended that the children had become ordinarily resident in Surrey and that Surrey should be designated both under any future interim care orders and in respect of the final care order.  Surrey’s response was to say that by virtue of sections 105(6), 22 and 23 of the Act Hackney remained the designated local authority.  Wall J. (as he then was) held at p.549: 
“In my judgment a local authority which permits children to remain living at home under an interim care order in care proceedings is not providing accommodation for them within section 23(1)(a).  Section 105(6)(c) accordingly does not apply and I am free to look at the ordinary residence of the children under s. 31(8) without having to apply the disregard under 105(6).
Apart from any arguments based on common sense or plain English, the inappropriateness of describing children living at home as living “in accommodation provided by the local authority” is I find supported by the statute itself.  Section 23(6) imposes a specific duty on local authorities to make arrangements for any child whom they are looking after, to enable the child to live with a parent, a person who has parental responsibility or a person who held a residence order immediately before the care order was made, unless such an arrangement would not be reasonably practicable or consistent with the child’s welfare.  Such arrangements are subject to regulations made by the Secretary of State.
In my judgment, therefore, what has occurred in this case is that the local authority has allowed the children to live with their mother under s. 23(5) of the Children Act and accordingly this is a placement by the local authority within the Placement of Children with Parents etc Regulations 1991 (1991/893).  The language used in 23(5) and (6) ‘living with’ is plainly to be contrasted with the term ‘provide accommodation’.  Furthermore, the distinction between accommodation under s. 23(1)(a) and making arrangements for a child to live with his mother under s. 23(6) is clearly reinforced by s. 23(7) …
This subsection makes a clear distinction between accommodation provided by the local authority and the child’s home.  The children in this case were living at home.  They were allowed to live at home as a consequence of a local authority exercising its powers under the interim care orders and the 1991 regulations.  Furthermore, when I look at the Placement of Children with Parents Regulations 1991 themselves, it is apparent that the language of the regulations repeats the language of the statute, thereby supporting the view that the definition of “placement” under the regulations is to be distinguished from “accommodation”.  …”
23.	I have already expressed my view that the differences in language are differences of style not of substance.  With great respect to the learned judge, I do not understand why permitting the children to remain living at home under an interim care order is said to be a failure to comply with the duty imposed by section 23(1)(a) to provide accommodation for the child.  When the child is taken into care the duty to provide accommodation for him is clear.  The local authority can provide that accommodation in a variety of ways, one of which is accepted to be leaving the child with the parents, but under the auspices of the care order which puts the local authority in control.  Surely that is providing accommodation?  If it is not, then the local authority is failing to comply with its duty.  That would cause consternation for local authorities and, with respect to the judge, must be wrong.
24.	The next case is In re H (A Child) (Care order: Appropriate Local Authority) [2003] EWCA Civ 1629, [2004] Fam 89.  This was another case where local authorities were disputing which one was the designated authority.  Here the mother and child left Norfolk and moved to Oxford.  There the child suffered non-accidental injuries.  Oxford County Council obtained an interim care order.  Under the care order the child returned to Norfolk to be cared for by his grandfather and step-grandmother and there he remained.  After protracted proceedings a final care order was made approving a plan that the child continue to reside with his grandfather in Norfolk.  Hogg J. concluded that the considerations in favour of designating Norfolk were so compelling as to permit her to deviate from the approach required by the established authorities of this Court.  Counsel for Norfolk County Council submitted that:
“… given the stringent restraint on deviation from the simple test by resort to the exceptional, it was simply not open to Hogg J to conclude that considerations that all related to H’s future welfare justified a departure from the simple test which required the designation of Oxfordshire.  For Oxfordshire was clearly the county of H’s ordinary residence immediately prior to his return to Norfolk and had been so immediately prior to his accommodation by Oxford in March 2001.  The effect of the disregard provision in s 105(6)(c) compelled a finding that H was ordinarily resident in Oxfordshire for the purposes of s 31(8)(a).”
Mr Jonathan Baker, for the guardian, contended that the judge had rightly held that the developments affecting H’s family were sufficiently exceptional to entitle Hogg J. to conclude that he had re-acquired ordinary residence in Norfolk.  His alternative submission had its origins in his respondent’s notice.  Relying on Wall J.’s judgment in Re C, he submitted that the disregard provision did not apply since H was not being “provided with accommodation by or on behalf of a local authority” within the meaning of section 105(6)(c) when he went to live with his grandfather.  
25.	Thorpe L.J. (in a judgment with which Jonathan Parker and Dyson L.JJ. agreed) held:
“I am in no doubt that Mr Casey [counsel for Norfolk] succeeds on his primary submission that none of the considerations identified by Hogg J is sufficient to classify this as an exceptional case justifying a departure from the simple test identified in the earlier decisions of this court.”
26.	But Thorpe L.J. went on to say at p. 94:
“15.   However I am satisfied that the judge's conclusion can be supported on the grounds advanced in the respondents’ notices.  Given the difficulty that has arisen in the application of the disregard provision I favour a narrow construction of its extent.  On that approach I do not consider that H was being provided with accommodation by Oxfordshire County Council once Wall J ordered his return from foster care to the family in Norfolk.  The decision of Wall J in In re C (Care order: Appropriate Local Authority) [1997] 1 FLR 544 supports that conclusion.  In that case Wall J held that a local authority which permitted children in care to remain at home with their mother was not providing accommodation within the meaning of s 23(1)(a) of the Children Act 1989 and accordingly s 105(6)(c) did not apply.  Wall J reasoned this conclusion carefully and extensively between pp. 548E and 550H.  In my judgment, the conclusion which he reached was correct for the reasons which he gave.  …
17.  The effect of s 23(6) is to cast upon the local authority a duty to make arrangements to enable a looked after child to live with a person or family to whom he is closely related or with whom he is closely connected.  Once that is achieved the looked after child ceases to be provided with accommodation within the meaning of s 105(6) and begins to live with the relative or family arranged by the local authority pursuant to their duty under s 23(6).”
27.	With great respect, I find this difficult to accept.  If, once arrangements have been made for the child to live with a person to whom he is closely related the child ceases to be provided with accommodation, then the local authority are failing to fulfil their duty under section 23(1)(a) to provide accommodation for him when he is in their care.  It is a continuing duty.  Making arrangements to enable the child to live with the grandparents under subsection (6) must be a way of fulfilling that duty to children whilst in care.  Arrangements under subsection (6) must be a means of providing accommodation.  But, whatever I may think, if I am bound by In re H, then I must give in gracefully.
28.	Before I do - and I will return to the dilemma later - let me deal with the third case where this point was raised -  Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181.  It bears some resemblance to the matter before us.  The child concerned, S, lived with her father and his partner ED till that relationship broke down whereupon the local authority placed the child with foster parents.  S left them and went to live with ED and then with her father.  He was violent to her as a result of which the local authority again became involved and, to meet S’s wish, contacted ED who agreed to take S in to live with her.  After making some payments to ED to assist her care of S, the local authority stopped payment and ED applied for the judicial review of that decision.  
29.	Smith L.J., sitting with May and Keene L.JJ., gave the judgment of the Court.   Under the rubric “The hearing before the judge” she recorded at [29] Southwark’s primary case that this was a private fostering arrangement, not a section 23(2) placement, and at [30] Southwark’s alternative submission that if s 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 s 23(6).   She then noted at [31]: 
“It was common ground that, if S were living with ED pursuant to an arrangement made by the authority under s 23(6), the authority would not be obliged to pay for S's accommodation care and maintenance.  … the effect [of Re C and In re H was]  that, where a local authority arranged for children in care to live with their mother pursuant to s 23(6), the local authority was not providing accommodation for them.”
30.	In her chapter of “Discussion and conclusions”  she turned at [48] to “the substance of the appeal” which she identified in this way:
“[48] …  Was Southwark ever under a s 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 s 20(1) duty was on the verge of the rising but never crystallised, because it did not appear to the authority that S required accommodation: ED was willing to provide it.”
31.	She said:
“[49]  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 ss 20 and 23.  If a local 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 local authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that she or he must look to the parents or person with parental responsibility for financial support.  The local 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.
[50]  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.  … 
[51]  We conclude, therefore, that by the afternoon of 20 January 2004, Southwark was under a s 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 s 23(2) or made arrangements for her to live with ED pursuant to s 23(6).  The judge concluded that s 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.
[52]  It is clear from the heading to s 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 s 23(2) placement as applies to a s 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 s 23(2) but was not prepared to hold that arrangements could have been made for her pursuant to s 23(6).  Because the same pre-condition applied, either both disposals were available or neither was available. 
[53]  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 s 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 s  23.  … 
[55]  …  The pre-conditions to disposal under ss 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 s 20(1) duty arises.  It is not necessary that the child should have been accommodated for 24 hours before she or 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 s 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 s 23(2) placement or it can make arrangements for the child to live with a relative, friend or connection, pursuant to s 23(6).  Usually, and ideally, a s 23(2) placement will be temporary and s 23(6) arrangements for a child to live with someone will provide a longer term solution to the child's needs.
[56]  In practice, there may be very little difference between the local authority facilitating a private fostering arrangement and making arrangements pursuant to s 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.
[57]  We have said that, in the present case, a s 20(1) duty arose during the afternoon of 20 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 s 23(2).  Alternatively, it could have discharged its s 20(1) duty by making arrangements for S to live with ED at her expense.
[58]  The question is what did Southwark in fact do?”
32.	In the court’s view the answer was clear.  As it found at [50], the local authority had taken the central role in making the arrangements for S to live with ED.  This was more consistent with the exercise of statutory powers than facilitating a private fostering arrangement.  As explained in [58], no reasonable bystander listening in to ED’s two conversations with the social worker would have thought that Southwark was shedding its legal responsibility for providing accommodation for S and that ED was taking it on.  Where the local authority was facilitating a private fostering arrangement, the local authority ought to ensure that the parties understood what they were agreeing to.  A full explanation and a proper understanding was even more imperative where the local authority was seeking to discharge its obligations by arranging that someone else would shoulder them.  The nature of the arrangements had been left uncertain and the only inference that could reasonably be drawn was that Southwark was asking ED to accommodate S on its behalf and at its expense.  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 local authority pursuant to section23(2)(f) could not be determined.  But the court was satisfied it was not a section 23(6) arrangement.   ED was thus entitled to financial support.
33.	On one view of Southwark there is an easy answer to the question we have to decide which, as identified in [1] above, is simply whether A is a looked-after child.  If, as [55] holds, accepting Mr O’Brien’s submission for the local authority, a child is looked after as soon as the section 20(1) duty arises, then A is a looked-after child because it is beyond doubt that the duty has arisen in her case.  A was a child in need and she clearly appeared to the local authority to require accommodation as a result of her parents being prevented from providing it for her.  But it may not be as simple as that for two reasons, both of which necessitate investigating whether the child has been provided with accommodation pursuant to section 23(2).  
34.	First, as defined in section 22(1), a child is looked after if she is (not must be) provided with accommodation by the local authority in the exercise of its social services functions, in other words, it is because she is provided with accommodation that she becomes a looked-after child.  The local authority exercises those functions when it acts pursuant to section 23.  It is under a duty to provide accommodation if the conditions of section 20(1) are satisfied.  The court in Southwark accepted in [55] (and I agree) that the local authority complies with that duty (which, it is worth repeating, is to “provide accommodation for any child in need …”) either by providing it itself by making a section 23(2) placement or by making arrangements for the child to live with a relative, friend or connection pursuant to section 23(6).  Instead of concluding that either way was a means of providing accommodation (which is what I would do if I were free to do it) the court proceeded on the basis it was bound by In re H and had, therefore, to ascertain which route had been followed.  Hence the questions posed at [51]: did the social worker place S with ED under section 23(2) or make arrangements for her to live with ED pursuant to section 23(6) and at [58]: what did Southwark in fact do?  The court concluded that “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 court was satisfied it was not a section 23(6) arrangement.  The necessity to make the finding under section 23(2) seems, therefore, to have been part of the court’s reasoning which we should follow.   
35.	Secondly, and in any event, section 23(2) imposes the duty not only to provide accommodation but also, and of particular relevance to this appeal, to provide maintenance for any child they are looking after.  So the duty to maintain depends on whether, one way or another, the case falls within section 23(2)(a), or 23(2)(aa) or 23(2)(f).  For that reason too the inquiry has to focus on Section 23(2).  
36.	In the court below, Black J reluctantly directed herself in accordance with Re C and In re H that sections 23(2) and 23(6) contain two distinct routes by which a local authority fulfils its duty to provide accommodation for a child so that if the local authority place the child under section 23 (2) she remains looked after whereas if the local authority make arrangements about accommodation under section 23 (6), she does not (see [28] of her judgment at [21] above).  She also diligently directed herself in accordance with Southwark and concluded at [74] that the local authority had discharged its section 20(1) duty by a placement under section 23(2) rather than section 23(6).  She was entitled to come to that conclusion for the reasons which she gave and with which I fully agree and which, therefore, brook no further discussion from me.  It follows that this appeal must be dismissed.
37.	I cannot, however, conclude this judgment without dealing with the difficult question which underpins the judge’s granting permission to appeal and the intervention by the Secretary of State – are we bound by In re H? 
38.	Mr Steven Kovats Q.C., for the Secretary of State, boldly submits that we should say that Re H was decided per incuriam.  I have probably gone too far already in expressing my views about these decisions but for a parvenu in the Family Division (I refer, of course, to myself and not to Mr Kovats) to suggest that contemporary giants like the President, Sir Nicholas Wall, and Thorpe L.J. proceeded per incuriam would be a very bold step to take.  It is simply not permitted by the authorities.  The boundaries of per incuriam are strictly circumscribed.  As Sir Raymond Evershed M.R. put it in Morelle v Wakeling [1955] 2 QB 379, 406: 
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is bound, on that account, to be demonstrably wrong.”
I do not see how the judgment in In re H can be understood in those narrow terms – they addressed the material statutory provisions but just construed them in a way I happen to think is wrong.  The judgments cannot be said to be per incuriam. 
39.	As I have already set out, in Southwark  Smith L.J noted at [31]:
“It was common ground that, if S were living with ED pursuant to an arrangement made by the authority under s 23(6), the authority would not be obliged to pay for S's accommodation care and maintenance.  … the effect (of Re C and In re H was)  that, where a local authority arranged for children in care to live with their mother pursuant to s 23(6), the local authority was not providing accommodation for them.”
40.	I would not regard this Court as bound by that concession.  If a proposition is assumed to be correct without the benefit of argument on the point, then it does not form part of the ratio of a court’s decision.  Authority for this is R (Kadhim) v Brent Housing Board [2001] QB 955 where Buxton L.J., giving the judgment of the court which comprised himself, Schiemann L.J. and Jacob J., said at [33]:
“We therefore conclude, not without some hesitation, that there is a principle stated in general terms that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court.”
41.	Mr Kovats’s second submission is that In re H is not binding upon us because consideration of section 23(6) was not a live issue in that case.  That is true in the sense that the narrow issue in that case and in Re C was as to the effect of section 105(6) on section 31(8) for the purpose of determining the designated authority in care proceedings.  The fact that the children there were in care distinguishes that case from ours on the facts but that is not enough of itself: as Buxton L.J. said in R (Kadhim) v Brent Housing Board (supra) at[16] cases as such do not bind; their rationes decidendi do.  So the critical question is: what was the ratio decidendi of In re H?  Buxton L.J. accepted the definition of Professor Cross:
“The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.”
  
42.	The court necessarily had to decide the section 105 (6) question and determine whether the children were being provided with accommodation by or on behalf of the local authority.  That does bring section 23 directly into play.   The conclusion in [15] was that the child was not being provided with accommodation by the County Council.  The reason for that conclusion was given at [17]; in short, once arrangements are made under section 23(6) “to enable a looked after child to live with a person or family to whom he is closely related or with whom he is closely connected”, “the looked after child ceases to be provided with accommodation”.  If that is right, then, not being provided with accommodation in the exercise of the local authority’s social services functions, she ceases to be a looked-after child as defined by section 22(1).  That being the ratio of In re H which binds me, I very much regret that it is not open to me to hold that the looked-after child living with her grandmother pursuant to arrangements made under section 23(6) is nonetheless still being provided with accommodation (essentially because making arrangements under section 23(6) is no more than a means of providing accommodation under section 23(2)).  So I give in.  The Supreme Court must rule between us if it chooses to do so.
Lord Justice Rimer:
43.	I have had the advantage of reading Ward LJ’s judgment in draft. I too would dismiss the appeal for the reasons he has given in paragraph [36], namely that Black J (as she then was) was entitled to find, as she did, that the local authority had placed A with her grandmother pursuant to its powers under section 23(2) of the Children Act 1989 and that it followed that A remained a ‘looked after’ child within the meaning of section 22(1). 
44.	Section 20(1) imposes a mandatory obligation upon a local authority to provide accommodation for ‘any child in need within their area’. A was such a child. Section 20 does not, however, also say that such a child automatically becomes a ‘looked after’ child. It is section 22(1) that explains the meaning of a ‘looked after’ child, namely a child in the local authority’s care or ‘provided with accommodation by the authority in the exercise of’ any of its functions as described. 
45.	Section 23 appears to me, as to Ward LJ, to be the section intended to inform the local authority how to fulfil its duty to provide accommodation for a child in need. There is, however, a logical difficulty in so regarding it because it in terms applies only to the provision of accommodation and maintenance to children whom the local authority is already ‘looking after’ (see its title and subsections (1) and (2)). As a child in need who is not in the local authority’s care will, under section 22, only become a ‘looked after’ child once the authority has provided him with accommodation for a continuous period of more than 24 hours, section 23 can therefore be read as deferring the imposition upon the local authority of any of its duties with regard to such child until after such time as the child has been so accommodated.
46.	That reading of section 23 may be thought to raise something of an interpretative conundrum. There is, however, no need to wrestle with it because the Court of Appeal in Southwark London Borough Council v. D [2007] EWCA Civ 182; [2007] 1 FLR 2181, in a decision binding upon us, has resolved it by deftly sidestepping the section 22 definition and deciding that the section 23 duties and powers spring into life as soon as the section 20(1) duty arises. At that moment, the child ipso facto becomes a ‘looked after’ child, it not being necessary that the child should first have been accommodated for more than 24 hours (see paragraphs [52] to [57] of the judgment of the court delivered by Smith LJ).
47.	That being so, the judge was faced with deciding whether A’s accommodation with her grandmother was provided by the local authority in pursuance of its obligation under section 23(2); or whether A’s enjoyment of such accommodation was the result of ‘arrangements’ made by the local authority under section 23(6). There are different economic consequences for the grandmother according to the answer to that question. The more favourable answer from her viewpoint is that the accommodation was provided under section 23(2). A would then have remained a ‘looked after’ child and she would be entitled to the higher fostering allowance that Ward LJ has explained. If, however, the placement was a section 23(6) arrangement, the sense of this court’s decision in In Re H (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629; [2004] Fam 89 is that the local authority would not have been providing A with any accommodation at all and A would (so it appears to be assumed) cease to be a ‘looked after’ child: that would seem to follow, since otherwise the local authority would be in continuing breach of its section 23(2) obligations towards her. The distinction between the provision of accommodation under section 23(2) and the making of arrangements under section 23(6) was common ground between counsel in Southwark (see paragraph [31] of the court’s judgment) and the court in Southwark proceeded on the basis that it is a real one.
48.	So also did the judge in this case, as she was bound to do. She found on the facts that the placement with the grandmother was made under section 23(2). She was entitled to make that finding and it follows that the appeal must be dismissed.
49.	The interesting question raised in the course of argument was as to the structure and interpretation of section 23. Ward LJ has explained how, untrammelled by authority, he (like the judge) would be disposed to interpret it. He favours an interpretation under which the making of section 23(6) arrangements is correctly to be regarded not as an alternative to the provision of accommodation under the section 23(2) duty but as prescribing the way in which that duty is to be performed. Were it not for the fact that I consider that Re H precludes that interpretation, I would respectfully see great force in Ward LJ’s analysis and would wish to associate myself with it. As it is, I regard the door to it as firmly closed at this level of the judicial hierarchy.
Sir Stephen Sedley:
50.	I agree with both judgments.