England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Nottingham County Court
HHJ Butler, Q.C.
MN10C00081, OG11C00797

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2012

The Hon. Mr. Justice Hedley

This is the Judgment of the Court:

INTRODUCTION

1. Special guardianship was introduced as a concept into the Children Act 1989 (the Act) by an amendment effected by the Adoption & Children Act 2002. It is becoming an increasingly popular means of resolving family proceedings; it has found particular favour with local authorities, faced either with taking or pursuing proceedings under Part IV of the Act or exercising their duties and powers under Part III, as a means of securing what has become known as kinship care placements i.e. placements with relatives.
2. Special guardianship is a private law remedy provided for in Part II of the Act in Sections 14A-F. Parental Responsibility (PR) is conferred on special guardians and other holders of PR may not exercise their responsibility in any way that conflicts with the special guardian. It is therefore apt for securing a placement during minority which differs significantly both from adoption, not least in that familial relationships are left unaltered, and also from a residence order by the strengthening of PR.
3. Local Authorities have therefore found it an attractive proposition where the plan is for kinship care. However, Sections 14A-F impose significant obligations on local authorities some of which may continue for many years after the making of the order and it is here that a particular problem can arise as this appeal demonstrates. In a local authority structure of unitary authorities, there are a large number of local authorities in the country; in a highly mobile society, kinship placements may well involve placements in the area of another authority.
4. That is what has happened in this case and it raises two issues likely to be of increasing practical importance first, the determination of which authority owes duties under Sections 14A-F (and it may not be the same authority in respect of each duty); and secondly, the extent to which local authorities are free to make arrangements amongst themselves in respect of these duties. The facts of this case are otherwise unremarkable which may well indicate that issues of wider application are in question.

THE FACTS

5. CS was born on 27^th March 2010 and KS on 25^th March 2011. Their mother and father are aged respectively 19 and 20. It is now common ground that these parents are not able to care for these children and it is sad to note that they in their turn had not experienced good enough parenting. The relationship between the parents was volatile and that was the reason for the ending on 17^th June 2010 of a residential assessment of CS with his parents. On 22^nd July 2010 CS was placed in foster care, an application having already been made under Part IV of the Act.
6. Gradually a plan emerged to place CS with a relative of the mother (HB) who was in a same sex relationship with CY. They are aged respectively 27 and 23. He was in the end placed there on 9^th October 2011. Meanwhile the mother and KS had gone to a mother and baby foster placement and thereafter into independent supported accommodation. On 23^rd September 2011 the mother made what was assessed as a serious attempt on her own life and thereafter she and KS moved to live with another relative. In the event, and with the mother's agreement, KS moved to the home of HB and CY on 13^th December 2011. By that time there was a general recognition both that HB and CY would care long term for both children and also that they would do so under the authority of a special guardianship order. Both children remain there to date.
7. The parents lived within the area of Nottinghamshire County Council (NCC) and it was NCC who instituted court proceedings and who oversaw the actual placements with HB and CY. However, HB and CY live in the area of Suffolk County Council (SCC) and a dispute emerged as to the incidence of certain duties under Sections 14A-F. Before considering what each authority has done, it is necessary to consider the proceedings themselves which in respect of both children were consolidated on 4^th October 2011.

THE PROCEEDINGS IN THE COUNTY COURT

8. Part IV proceedings in respect of CS were issued in July 2010. At that time both parents held PR for CS. They consented to his placement in foster care which was accordingly effected under Section 20 and Part III of the Act. It was the intention of NCC that CS should be placed with HB and CY under an interim care order. In fact on 4^th October 2011 HHJ Butler, Q.C. (on the recommendation of the guardian) made an interim residence order in respect of CS in favour of HB and CY. HB and CY thus acquired PR for CS.
9. KS had, prior to his placement with HB and CY, always been in a family placement. Only the mother held PR in respect of KS. On 12^th December 2011 an interim residence order was made in favour of HB and CY for KS and they thereby acquired PR for KS. During this time interim supervision orders had been made to NCC in respect of both children.
10. Special Guardianship had been in the minds of all ever since the plan was made to place with HB and CY. In fact no application for such an order has been made, though by Section 14A(6)(b) of the Act the court can here nevertheless make the order. All the preliminary investigations (including the mandatory report required by Section 14A(8)) had been undertaken by NCC and a picture has been emerging of a consensual approach to special guardianship orders supported (as the NCC plan shows) by services and finance. However, at the same time a clear dispute has developed between NCC and SCC as to who was to supply such services and finance. This provides the substance of this appeal.

THE HEARING OF 23^rd JANUARY 2012

11. This was intended to be the final hearing; it also resulted in the order under appeal. A transcript of the hearing can be found at AB 3-11 in the appeal bundle and the order at AB 1-2. More needs to be said of this in due course but for the time being the material provisions of the order were – "…upon the parties agreeing that the court is bound by the decision of Black J in GC -v- LD [2009] EWHC 1942 (Fam), but SCC not agreeing that the decision is a correct one … and upon the court declaring the SCC is responsible for the financial assistance and other services to be provided to HB and CY … the matter is adjourned part heard [to another judge] … CS and KS shall be subject to interim supervision orders in favour of SCC …" Permission to appeal against this order was given by Black LJ on 25^th June 2012. HHJ ButlerQ.C. did not give a judgment in respect of the order under appeal but her reasoning sufficiently appears from the transcript of the hearing.

THE PRESENT POSITION

12. At present both children live in Suffolk with HB and CY under interim residence orders. NCC has provided the requisite report and has provided a plan for services and financial support. The placement is supported by both the mother and the local authority; the father is ambivalent but has no realistic alternative proposal. HB and CY are now moving towards a special guardianship order which all agree or accept is the proper outcome to the case.
13. There is, however, one formidable obstacle. NCC asserts that their plan should be implemented by SCC. SCC denies that but asserts that, if such were the case, it is they who should do the assessment and, if so required, prepare the plan for services and support. Their provisional view is that by SCC criteria HB and CY might not qualify for any financial support. If it be right (and this will be considered later in this judgment) that SCC are the authority to do the assessment and plan and if the family court has no power to order services or support let alone determine their level, HB and CY are in an almost impossible position.
14. They could accept SCC's assessment which may fall far short of what they expected from NCC's plan; they could embark on litigation in the Administrative Court supported perhaps either by SCC or NCC; they could simply withdraw from what for them must be an increasingly unhelpful process. On the other hand all are agreed that the welfare on CS and KS would be gravely impaired by such a withdrawal. It was in those circumstances that this court received the news with a mixture of shock, alarm and disbelief that there had as yet been no serious discussions between SCC and NCC with a view to achieving a practical outcome to sustain the welfare of these children. Each sought a determination of the legal position as to which was the responsible authority.

SPECIAL GUARDIANSHIP

15. This is provided for in Sections 14A-F of the Act supplemented by the Special Guardianship Regulations 2005. Although no application has in fact been made, it is important to notice the terms of Section 14A(7)

(7) No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—

(a) if the child in question is being looked after by a local authority, to that local authority, or

(b) otherwise, to the local authority in whose area the individual is ordinarily resident.

That sub-section demonstrates how two different authorities may become involved. As a matter of fact NCC has done all the preparatory work. Thereafter the Act merely refers to 'the' or 'a' local authority. Section 14F contains more general matters. It is necessary to notice specifically Section 14F (3) - (6)

3) At the request of any of the following persons—

(a) a child with respect to whom a special guardianship order is in force;

(b) a special guardian;

(c) a parent;

(d) any other person who falls within a prescribed description,

a local authority may carry out an assessment of that person's needs for special guardianship support services (but, if the Secretary of State so provides in regulations, they must do so if he is a person of a prescribed description, or if his case falls within a prescribed description, or if both he and his case fall within prescribed descriptions).

(4) A local authority may, at the request of any other person, carry out an assessment of that person's needs for special guardianship support services.

(5) Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.

(6) If—

(a) a local authority decide to provide any special guardianship support services to a person, and

(b) the circumstances fall within a prescribed description,

the local authority must prepare a plan in accordance with which special guardianship support services are to be provided to him, and keep the plan under review.

Section 14F (8) – (11) provides for co-operation between local authorities to carry out the required tasks.

16. These matters are enlarged in the Regulations. Crucial for the purposes of this case is Regulation 5 which provides –

5. Services for persons outside the area

This section has no associated Explanatory Memorandum

(1)  Section 14F of the Act (special guardianship support services) applies to a local authority in respect of the following persons who are outside the authority's area—

(a) a relevant child who is looked after by the local authority or was looked after by the local authority immediately before the making of a special guardianship order;

(b) a special guardian or prospective special guardian of such a child;

(c) a child of a special guardian or prospective special guardian mentioned in sub-paragraph (b).

(2)  But section 14F ceases to apply at the end of the period of three years from the date of the special guardianship order except in a case where the local authority are providing financial support under Chapter 2 and the decision to provide that support was made before the making of the order.

(3)  Nothing in this regulation prevents a local authority from providing special guardianship support services to persons outside their area where they consider it appropriate to do so.

It will be seen that there is a key distinction being drawn between children who are 'looked after by the local authority' and those who are not. This appears both in section 14A (7) and Regulation 5.

THE PRESENT POSITION IN LAW

17. The present position has been analysed by Black J (as she then was) in GC -v- LD & others [2009] EWHC 1942 (Fam), [2010] 1FLR 583. In the court below all parties accepted that the county court was bound by this authority though it was recorded that SCC did not accept that it was correctly decided. In this court, Mr Stephen Cobb Q.C. on behalf of SCC has not sought to maintain that position. He accepts that GC correctly explains the present law as derived from statute and the authorities. With the greatest respect I agree with that. There is, as Black J expressly acknowledged, room for more than one view about what the law should be but one particular view has prevailed. Indeed the recent case of Re D [2012] EWCA (Civ) 627 seems to recognise that the law is settled despite powerful criticisms that can be made of it.
18. The effect of these authorities (as analysed by Black J) is as follows. The key question in determining which local authority is responsible is whether or not the child is 'looked after' by an authority; if yes, then that is the responsible authority but, if no, then the responsible authority is the one in whose area the child is living. By Section 22(1) of the Act a child who is looked after is either (a) in the care of a local authority or (b) is provided with accommodation by that authority. A child is in the care of the local authority if the child is subject to a care order whether final or interim – Section 105(1). A child is provided with accommodation if he comes within either Section 23(2) or 23(6) of the Act. Crucially, however, the child ceases to be a looked after child if parental responsibility is vested in another by the making, for example, of a residence order or special guardianship order.
19. However, this is qualified by powers given to local authorities to co-operate with each other, to use another authority to discharge functions (e.g. Section 14F (8)-(11)) or simply to carry out tasks in another area (e.g. see Regulation 5 above). Whatever the possible challenges to the intellectual foundations of the law may be, it does as presently expressed provide a degree of certainty and allows a degree of pragmatism in the carrying out of local authority functions in 'out of area' placements. As this case illustrates, that certainly has advantages.
20. Anxiety was, however, expressed on two grounds: first, that there was a temptation on authorities for financial advantage to place out of area under residence orders; and secondly that it might work hardship on areas (and SCC may well be one such) who are net receivers rather than senders of children. I think the first is addressed by recognising that every authority is both a receiver and sender over a period of time and thus there will be self regulation based on self interest. The second can probably only be addressed in the national allocation of funds to local authorities in the light of actual experience.

THE EFFECT OF THE LAW ON THESE FACTS

21. Neither child, although the subject of Part IV applications, was ever subject to an interim care order. However, CS was undoubtedly a looked after child pursuant to Section 20(1)(c) of the Act. He remained a looked after child until 4^th October 2011. On that date an interim residence order was made in favour of HB and CY thereby conferring on them PR for CS. The effect of that (understood I think by no-one at the time the order was made) was that CS thereupon ceased to be a looked after child. Thus for CS NCC had been the responsible authority up to that point but thereafter the responsibilities passed to SCC. The fact that NCC continued to discharge functions was not of course objectionable since they had statutory powers so to do.
22. KS had effectively been with his mother until placed with HB and CY. He was in fact never a looked after child. For so long as he lived with his mother NCC was the responsible authority but so soon as he moved to HB and CY under an interim residience order then those responsibilities for the reasons above passed to SCC. That analysis is now accepted by all as correct.

CO-OPERATION BETWEEN AUTHORITIES

23. The statutory framework is intended to permit (and, as I think, to encourage) co-operation between authorities. That has, until now, been singularly lacking in this case. NCC have done all the preliminary work and then sought to pass on its implementation (and funding) to SCC. It appears that HHJ Butler Q.C. in the hearing, the subject of this appeal, was disposed to the view that NCC were entitled so to act.
24. Happily NCC through Mr. Anderson has acknowledged that that should not have happened and that SCC should have been involved at a much earlier stage. Happily too, SCC has acknowledged through Mr Cobb, Q.C. that they are now the responsible authority and that they will carry out the duties required by Section 14F. NCC acknowledges that in those circumstances SCC are entitled to do their own assessment and, if needed, devise their own plan. To the extent that HHJ Butler Q.C. thought otherwise, she was in error in her understanding of Section 14F and GC -v- LD.
25. There is of course, as earlier noted, the real risk that SCC's assessments may be less generous to HB and CY than was that of NCC with all the difficulties that might cause to them. Again happily, NCC through Mr. Anderson has made it clear that they will do all that is necessary to support the placement of CS and KS with HB and CY believing that this strongly conduces to the welfare of these children.

THE HEARING OF 23^rd JANUARY 2012

26. We have been provided with a transcript of this hearing. It does not make for happy reading. The learned judge, clearly convinced that SCC were being obstructive and unreasonable, was brusque in her approach to what was, as is now recognised, not a simple issue. She had not appreciated how late SCC had come on to the scene in practice and was not enamoured with the idea that they should do their own assessment. She gave no judgment and dealt with the whole hearing summarily. There will, of course, be circumstances when that approach can be justified but it could only begin to be justified if her views were correct. They were not. In those circumstances this court should set aside the order in its entirety save insofar as any case management directions have already been effected.

THE OUTCOME OF THIS APPEAL

27. The court proposed a suggested outcome to this appeal. After taking instructions both local authorities concurred in adopting that proposal. It is carried into effect in the order now agreed between the parties. In substance the county court order is set aside, SCC acknowledge that they are the responsible authority and will fulfill the duties under Section 14F of the Act. Senior managers of SCC and NCC have agreed to hold discussions about the actual allocation of work and responsibility for payment. NCC has committed to sustaining this placement. The case is now a Suffolk case and will be transferred to the Care Centre at Ipswich County Court. To that extent the appeal is allowed.

FINAL OBSERVATIONS

28. As has already been intimated, out of area placements in prospective special guardianship cases may very well become much more common. A number of matters have arisen in this case which may well arise elsewhere. A few reflections may therefore not be out of place. It was for this reason that we decided to put our judgment in writing.
29. The law both prescribes the incidence of responsibility and provides for a high degree of flexibility. If a child is a looked after child then responsibility lies with that authority; if not, it lies with the authority in whose area the child resides. It is therefore of critical importance when a child is placed out of area to have regard as to whether a child should or will remain looked after (i.e. under an interim care order or accommodated) or not (i.e. under a residence order). At the same time the local authorities involved should co-operate from the earliest stage in deciding who will in fact execute the statutory duties that arise and who will fund that work. Local authorities have powers to make sensible arrangements between themselves wherever primary legal responsibility may in fact lie.
30. The role of the court should also be carefully considered. Section 14F imposes duties on a local authority but it does not empower the family court to direct how or (in some aspects) even whether such duties are to be performed. Moreover the statute gives the court no power to make directions as to payment of money or provision of services. Of course judges may properly express views to local authorities and are entitled no doubt to expect that they will receive serious consideration (just as judges can and do express views about adoption and care plans) and of course it is only the judge who in the end can make the special guardianship order.
31. Special guardianship is potentially a very effective way of securing kinship care without on the one hand distorting family structures by adoption and without on the other leaving the child as a child in care with all the consequences so often resented by a growing child who feels stigmatised. It is essential both that local authorities in 'out of area' placements should co-operate with each other as early in the process as is practicable in the particular case and also that the court is clear about its role and powers. They may not be as extensive as is thought or as a judge may wish but I have no reason to think that the judge cannot make a valuable contribution to the process as is often done in both adoption and care cases where the court has the confidence of the parties involved.

This is the judgment of the Court.