QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
33 Bull Street
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
| - and -
|HERTFORDSHIRE COUNTY COUNCIL
| - and -
|DERBY CITY COUNCIL
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Jane Rayson (instructed by The Chief Legal Officer, Hertfordshire County Council)
for the Defendant
The Interested Party was not represented and did not appear
Hearing date: 3 July 2015
Crown Copyright ©
Mr Justice Hickinbottom :
"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."
"(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) 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;
(f) making such other arrangements as
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State.
(3) Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(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."
i) Any placement of a looked after child made under section 23(2) is subject to the Fostering Services Regulations 2002 (SI 2002 No 57).
ii) When fully in force, section 23 will be replaced by new section 22C; but (a) it was common ground that section 23 was the relevant statutory provision at the relevant time and (b) for the purposes of this claim, there are no material differences between section 23 and its successor. Consequently, I need say nothing further about the amended provisions.
"We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to 'side-step' that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. Usually, a private fostering arrangement will come about as the result of discussions between the proposed foster parent and either the child's parent(s) or a person with parental responsibility. But we accept that there might be occasions when a private arrangement is made without such direct contact. We accept that there might be cases in which the local authority plays a part in bringing about such an arrangement. However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all."
"She [i.e. the boyfriend's mother] was left in the unsatisfactory position where she agreed to allow [S] to live with her permanently, but was not told the basis on which that would be, namely, one that would not involve the [authority] or any other party being obliged to provide financial support."
The judge went on to say that the authority intended to continue to play a significant role in the arrangements for S's future as evidenced by the arrangement of a Planning Meeting.
"Spoke to fellow officer in the absence of Ms Adams, informed me the officer that the allocated social worker has undertaken risk assessment [of U] and he is deemed to be a suitable carer for the child.
In the event that the officer present themselves to the household to arrest [M] they will be required to ask [M] to identify a nominated carer. In the absence of [M] refusing to do this [sic], the police will be required to undertake a PP [i.e. a Police Protection Order] as Children Services have no powers to place child in the absence of [M]'s consent.
Social worker to contact Jodie Adams to discuss the terms of the detention in order to identify the placement needs of [R]."
"26. On 17 October 2012, PC Jodie Adams informed [the Council] that the arrest of [M] had taken place. PC Jodie Adams also informed [the Council] that [R] was in the care of [M]'s neighbour. This was not unusual as it was understood that [M] had informed [the Council] in a Core Group Meeting that this particular neighbour provided her with support in respect of caring for [R]. PC Jodie Adams also advised that the neighbour was liaising with the Claimant in respect of [R] being taken to stay with her.
27. PC Jodie Adams confirmed in a telephone conversation with me on 31 January 2014 that she was not the arresting officer at the time of the arrest on [M]. The police officers who attended the family home were PC Kim and PC McGregor. [M] was arrested at 8.35am on 17 October. PC Jodie Adams' understanding is that, following the arrest, [M] took [R], accompanied by the arresting officers, downstairs to the flat where the neighbour lived. PC Jodie Adams further understands the agreement between the neighbour and [M] to be that if [M] was remanded in custody, the neighbour would contact the Claimant. I understand that [M] did make attempts to contact her neighbour while she was in the custody suite. There is no mention in the notes of PC Kim of [U]; [U] being present at the time of [M]'s arrest or at [M]'s home.
28. Having not been informed by any family members of the arrest of [M] or the whereabouts of [R], the allocated social worker spoke to [M]'s neighbour, and the Claimant and they both confirmed that they had made arrangements for [R] to stay with the Claimant in Derby with [M]'s consent. [The Council] was told that the neighbour would be transporting [R] to the Claimant in Derby."
"To Phillipa [i.e. the Claimant] and Nicky [Panayotiou] Nicky is transporting [R] to his grandmother in Derby. Grandmother, Philippa, has agreed to care for him whilst [M] is in custody."
The Claimant denies ever being contacted by the Council that day (see paragraph 5 of her statement, quoted below); and it may well be that the substantive note was derived from a single telephone conversation with Ms Panayotiou.
"4. I was contacted on 17 October 2012 by my son [U] who told me that [M] had been arrested and [R] had been left with him and [U] did not know what to do with him. I was in London at the time of this call and [U] told me he could not leave [R] alone in [M]'s flat, he would have to take him with him. [U] is in his early twenties and has no child care experience. I understand that [U] first took [R] to the house of [R]'s father's sister accompanied by [M]'s friend and neighbour Nicky. He was not able to leave [R] there.
5. I understand that [U] then took [R] to Nottingham to [U]'s girlfriend's parents' house. [U] then left [R] at this house and called me to let me know that he was there and could not stay there overnight. I was still in London at this point and I then received a call from Nicky who stated that she had had a call from social services and had advised them that [R] was going to stay with me. Once I returned from London, later that evening, I then drove to Nottingham and picked [R] up and took him to my house. I was not contacted by social services directly.
6. I have spoken to [M]'s neighbour, Nicky, and she has stated that it is not true that [M] took [R] down to her flat and asked her to look after him and that [R] was in fact left by the police with [U].
7. At this point, it was my understanding that [M] would be in custody for a few days, or at the most a couple of weeks, and would then be able to take [R] back. I work full-time as a plumber and so I arranged a child-minder to look after [R] temporarily. After a couple of days, I had not heard anything about what was happening with [M], and so I contacted [the Council] social services team to explain the situation and ask what should happen to [R]. I was told by the social worker that I had chosen to take [R] in and so no support could be given. I advised the social worker that I had not chosen to take him in as there had not been any choice and that I needed support to care for him. I was told that I should contact [the City Council] if I needed any support to care for [R]."
i) On arresting M on 17 October 2012, the police were sensitive to the fact that M cared for R; and, without their being satisfied as to the care arrangements for R following the arrest care arrangements with which M, as the person with parental responsibility for R, had to approve then they would have to obtain a Police Protection Order in respect of the child, which would have triggered various obligations in the Council. The evidence is thin, but I am satisfied on the evidence I do have that, prior to taking M away, the police considered there were arrangements for R in place that had M's approval that would result in R being adequately cared for.
ii) Those arrangements involved R staying with the Claimant. I am not sure that the evidential differences are of any moment; but, insofar as they are and insofar as there is evidence in support of this proposition, I do not believe that R was left with U on the understanding that he would either look after R or would be responsible for finding someone to look after R. I am satisfied that the arrangement was made through M's neighbour, Ms Panayotiou although U was also present and it was always the intention of the arrangement that R would be looked after by the Claimant. M agreed to this arrangement.
iii) There were no pre-arrangements. The Claimant was in London at the time, and there was no arrangement, pre-made, that she would care for R on M's arrest. She was contacted, and she readily agreed to look after R whilst M was in custody. She thought that that would be temporary, and only for a few days or at most a couple of weeks; after which (she thought) M would be granted bail or would otherwise be released from custody, and R would return to live with her. M approved this arrangement, no doubt also hoping that her time in custody would be only days.
iv) The arrest was made on 17 October 2012. Within two weeks (i.e. by 26 October 2012), M had pleaded guilty to various offences and had been remanded in custody for sentence until February 2013. Therefore, by 26 October 2012, both the Claimant and M were aware that M would be unable to care for R for at least a further three months; and, given the nature of the charges to which she had pleaded guilty, probably for a significantly longer period. Once M had pleaded guilty to the offences, the whole scenario changed: and the Claimant was by that time aware that arrangements for R would be, if not permanent, longer term. R did not simply need somewhere to stay, he need a home for some time.
v) However, by that time, the Claimant was well aware that the Council would offer her no support: in her own statement (quoted above at paragraph 23 above), she says that "after a couple of days" following the arrest, she had contacted the Council which had made clear that they accepted no responsibility for supporting R because the arrangement by which he was living with the Claimant was an entirely voluntary one. It is uncontroversial that the Council unwaveringly maintained that line subsequently, and continue to do so. The Claimant says that she also contacted the City Council as I understand it before 26 October 2012, although that is not entirely clear from the evidence and they denied any responsibility for financially supporting R too.
vi) The Council visited the Claimant and R in Derby twice, the first time in November 2012. The City Council also visited them from time to time. Neither authority suggested on any of these visits that they were responsible for financially supporting R and/or the Claimant as R's carer. Indeed, it is the Claimant's firm evidence that, on each occasion, they denied any responsibility for providing support.
vii) During the period since 17 October 2012, there has been no real question but that R will live with the Claimant, unless and until M is able to offer him a home. There is a note in the social service department records for 18 December 2012 that the Claimant had said at a meeting that she did not want R to stay with her long term; but the notes go on to say that her body language gave a contrary indication. On 23 October 2013, there is a note saying that the Claimant did not want to keep R; but that was shortly before M's release from prison, when there was hope that she would be able to care for R is her own home. Generally, the notes suggest that the Claimant considers her house as R's long term home: she has claimed benefits for him, appears to have a signed consent from M concerning medical intervention and there have been frequent discussions about the Claimant (e.g.) applying for a Residence Order or some other order that will give her parental responsibility and R longer-term stability with her.
viii) The Claimant's house has been R's home since at least 26 October 2012. The Claimant has, clearly, looked after R with commendable care and dedication since then. There has been no question of her not doing so. Her real complaint is that the Council and/or the City Council ought to have given her more support in respect of that task; but, although she says in her statement (at paragraph 14) that she is struggling to cope financially and emotionally, she has never suggested to the Council or to anyone else that, if they did not support her, she would not look after the child.
The Claim: Discussion and Conclusion