Neutral Citation Number: [2015] EWHC 1936 (Admin)
Case No: CO/4565/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham

Date: Wednesday 8th July 2015 

Before :

MR JUSTICE HICKINBOTTOM

- - - - - - - - - - - - - - - - - - - - -
Between :

	THE QUEEN ON THE APPLICATION OF 
PC	

Claimant	
		- and -		
	
	HERTFORDSHIRE COUNTY COUNCIL
	
Defendant	
		- and -		
	
	DERBY CITY COUNCIL
	
Interested Party	
- - - - - - - - - - - - - - - - - - - - -
 (Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Lindsay Johnson (instructed by Irwin Mitchell LLP) for the Claimant
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
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Hickinbottom : 

Introduction
1.	The Claimant challenges the failure of the Defendant local authority (“the Council”) to provide her with support in her care of a looked after child, namely her grandson, R, in breach of its duty so to do under sections 20-23 of the Children Act 1989.
The Law
2.	Unless otherwise indicated, references in this judgment to statutory provisions are to the Children Act 1989.
3.	By section 17(1), local social services authorities are under a general duty “to safeguard and promote the welfare of children within their area who are in need; and… 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”.  “Child in need” is defined in section 17(1) to include a child who 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 the relevant part (Part III) of the Act; and a child whose health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services.
4.	Section 17 imposes general duties on social services authorities, supported by various powers including the power to provide a child in need with accommodation (section 17(6)).  In addition, the 1989 Act imposes a series of specific duties on authorities in discharge of the general obligations in section 17.
5.	As one such, section 20(1) imposes a duty to accommodate children in need in the following terms:
“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.” 
6.	By section 22, a child who is provided accommodation under section 20 for a continuous period of more than 24 hours falls within the definition of “a child who is looked after by a local authority”, commonly referred to as a “looked after child”.
7.	The manner in which a local authority discharges its duty to provide accommodation and maintenance to a looked after child is set out in section 23 which, so far as relevant, provides:
“(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.” 
8.	In respect of those provisions:
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.  
9.	Section 23 has been considered in a number of cases, notably R (D) v Southwark London Borough Council [2007] EWCA Civ 182, particularly at [49]-[55] per Smith LJ giving the judgment of the court.  It is made clear that a child becomes looked after for the purposes of section 20 as soon as it appears to the local authority that, for one of the reasons set out in the section, the child requires accommodation for more than 24 hours.  Immediately that condition is satisfied, the duty under section 20(1) arises.  
10.	That case also emphasises that whether an arrangement is private on the one hand, or one made by the local authority in line with its statutory powers and duties on the other, is a question of fact which will depend upon the circumstances of the particular case; and, in particular, will require an analysis of what the local authority in fact did.  Smith LJ said (at [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 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.”
11.	That indicates that, if an authority plays any part in facilitating a private arrangement, it must explain to the prospective foster parents that, under a private arrangement, they will have no right to assistance from the authority, so that they can make an informed decision as to whether to proceed with the arrangement on that basis or not.  
12.	Mr Johnson referred me to two cases in point.  In R (Collins) v Knowsley Metropolitan Borough Council [2008] EWHC 2551, the mother of the relevant child (S) died when she was aged 12, and S went to live with her step-father.  She left that home, and lived with a number of friends, before she began to live with her boyfriend’s family in what the social services department described as a “temporary arrangement”.  That department considered the arrangement unsatisfactory, and requested a foster placement.  However, S, now 14, could not be persuaded to return to her step-father or go into care or do other than live with her boyfriends’ parents with whom by that time she had been living for about a month.   The judge inferred that the boyfriend’s parents were asked by the authority whether they were agreeable to S staying with them; and they said they were.  A planning meeting was arranged by the authority to discuss S’s future, but that never in the event took place.  The step-father died about a month later.  A modest payment under section 17 was made for food and other essentials.  The foster parents applied for child benefit for S.
13.	Michael Supperstone QC sitting as a Deputy High Court Judge (as he then was) found that the authority owed a section 20 duty to provide accommodation because, when the authority asked the boyfriend’s parents if they were willing to continue to care for S, it was not explained to them that they would not receive any financial support because the authority was not responsible for S.  As the judge put it (at [32]):
“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.
14.	That case was followed by Antony Edwards-Stuart QC sitting as a Deputy High Court Judge (as he then was) in R (A) v Coventry City Council [2009] EWHC 34 (Admin), in which, without any prior arrangement, the child, T, had turned up at and been taken into the home of a woman who was looking after his brother.  She had made clear from the first meeting with the authority that she could not continue to look after T without financial assistance from them, without which he would have to go back to his father or go into care.  The authority had indicated to her that a way would be found to provide that financial assistance: she was not told that this was a private fostering arrangement for which she would receive no assistance.  The judge found that the authority had allowed the proposed foster parent to believe that she would receive financial support for looking after the child, as opposed to having to do so at her own expense; and therefore this case fell within the circumstances considered by Smith LJ in D, and that a section 20 duty had arisen.
15.	Once the section 20 duty has arisen, the local authority can discharge it by making a section 23(2) placement, or by making arrangements for the child to live with a relative, friend or other connected person under section 23(6).  Usually, a section 23(2) placement will be temporary, and section 23(6) arrangements will provide a longer term solution to the child’s needs.  Again, whether the local authority has discharged its duty by placing him with a suitable person under section 23(2), or by making arrangements under section 23(6), is a question of fact that will depend on all the circumstances in a particular case.    
The Facts
16.	R was born on 26 February 2011.  From birth, he lived with his mother, M, and his father, F, at their home in St Albans, for which the Council is the relevant social services authority.  The relationship between M and F was marked by violent episodes, such that the Council became involved with the family during M’s pregnancy with R.  From time-to-time, M took R to stay with the Claimant, who lives in Derby, those visits including a three-week stay in December 2011 and early January 2012.  Some of these visits appear to have been with the intent of M escaping violence at the hands of F.
17.	R was made the subject of a child protection plan following an initial child protection conference held on 10 April 2012.  Throughout 2012, R continued to visit the Claimant, for approximately one weekend per month.  The Interested Party (“the City Council”), which is the relevant social services authority for the area in which the Claimant lives, was informed that R was a child who was the subject of a protection plan who was temporarily in its area from time-to-time.
18.	On 15 October 2012, when R was about 18 months old, the Council was informed by PC Jodie Adams that she intended to arrest M in relation to an alleged assault by M on another woman.  As a result, the Council considered a foster placement for R under section 23(2), and they undertook a risk assessment of M’s brother, i.e. R’s uncle, U.  On that assessment, no concerns were revealed.  The following day, 16 October 2012, PC Adams confirmed to the Council that she was planning to perform the arrest of M early in the morning of the next day, 17 October.  The Council told PC Adams that they would be in touch with the police about the position of R.
19.	In the Council’s social services computer records, there is the following note of an apparently later telephone conversation that same day between the department and the police.  The note is rough, and I have corrected various spelling errors etc:
“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.
Action
Social worker to contact Jodie Adams to discuss the terms of the detention in order to identify the placement needs of [R].”
20.	M was duly arrested early on the morning of 17 October 2012.  There is a dispute as to exactly what happened in respect of R that day.  Unfortunately, there is no direct evidence as to what did happen.
21.	The Council’s Children’s Service Manager, Rosemary Millberry, in a statement dated 5 February 2015, says this:
“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.”
22.	Some of this is second- and third-hand hearsay; but there is corroboration of some of it from the Council’s computerised notes.  A note dated 17 October 2012, confirms that PC Adams had told the Council that, on M’s arrest, R had been left with a Ms Nicky Panayiotou, who was liaising with the Claimant who (the note wrongly says) “lives in London” about R.  A further telephone attendance note dated the same day reads:
“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.  
23.	The Claimant sets out her version of events in her statement dated 11 September 2014.  She states:
“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].”
24.	The Claimant had therefore thought that her care of the Claimant would be short term, until M obtained bail or was otherwise released from custody.  However, on about 26 October 2012, M pleaded guilty to a number of offences, and she was remanded in custody pending sentence, which, it was thought, would be in February 2013.  In fact, she was sentenced on 4 March 2013 to an aggregate term of 27 months’ imprisonment, which meant a release date in about December 2013.  
25.	The Claimant continued to care for R.  As the Council had told her to do, she did indeed contact the City Council and explained the circumstances, but she was advised that the Council were the responsible authority which should be providing support; and, for that reason, the City Council was unable to provide any support.  However, on each occasion the Claimant spoke with the Council requesting support, it said that, as she had chosen to take in R, she could not get any support from it and any support should be given by the City Council.  Over the coming months, the Claimant repeatedly contacted both authorities, but each refused to accept any responsibility for supporting her on the same basis.  Throughout, she repeated that she had taken in R only on a temporary and indeed short-term basis; and that it was intended that, when M was released from prison, she would return R to M’s care. 
26.	On 2 May 2013, the City Council was notified by the Council that it had ended the Child Protection Plan for R.  At a child in care meeting organised by the City Council on 11 June 2013, the City Council told the Claimant that, as R was safe in her care, it would not accept him as a child in need – but, if M settled in the area after her release, the City Council would accept the case.  The City Council refused to fund an application for a Residence Order by the Claimant, because R was not a looked after child.  The Claimant continued to look after R without the benefit of any order, and without any parental rights.
27.	M was released from prison in December 2013.  She was initially resident in Derby, but then moved back to St Albans.  She wished to have R back, but the City Council undertook an assessment of M which concluded that she could not provide a safe and stable environment for him.  As a result, they continued to assess the limited contact between M and R, and required her to sign an undertaking that she would not remove R from the Claimant’s care.  The Claimant continued to look after R.
28.	It was common ground between Mr Johnson and Ms Rayson that the differences in accounts – particularly whether R was left with the neighbour or with U – are immaterial to the determination of this claim; and I broadly agree.  In my view, the following can be drawn from the evidence:
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
29.	In this claim, issued on 23 September 2014, the Claimant challenges the Council’s continuing failure to provide the Claimant with any support in her care of R as a looked after child.  His Honour Judge Plunkett sitting as a judge of this court granted permission to proceed on 19 December 2015.  Before me, Lindsay Johnson appeared for the Claimant and Jane Rayson for the Council.  I thank both for their contribution.
30.	Mr Johnson’s submission benefited from the hallmark of simplicity.  It is rightly common ground that, as at 17 October 2012, R was a child in need in the Council’s area, because he was the subject of a Child Protection Plan and unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision of services.  At that time, he was being cared for by his mother, M.  When M was arrested that day, he required accommodation as a result of M being prevented from providing him with suitable accommodation or care.  In accordance with D, he accordingly fell within section 20(1) and an obligation on the Council to accommodate him immediately.  It was clear that the need for accommodation was a need for more than 24 hours; and it must have appeared to the Council to be so because it had in place provision for a foster care placement and had assessed U as a prospective foster parent.  He was from that moment a looked after child for the purposes of section 22.  Given the evidence of the Claimant that she took in R only as a short-term temporary measure, he was in substance placed with the Claimant by the Council under section 23(2).  The Council cannot rely upon its own inaction at the time the obligation arose perpetually to avoid its responsibilities and obligations towards R and to fix the Claimant with the consequences of an act of kindness in temporarily taking in R on an emergency basis.  The Claimant is consequently entitled to assistance under that section.
31.	In response, Ms Rayson submitted, first, that the claim in substance challenges the decision of the Council on 17 October 2012 not to treat R as a child in need requiring accommodation; and it is therefore well out of time.  Ms Rayson did not develop that submission in her oral argument; and I consider that she was right not to press it.  Leaving aside the apparent lack of prejudice to the Council that any delay might have caused, if the Council acted unlawfully in failing to treat R as a looked after child, then that is a continuing state of affairs and a continuing breach of their obligations under section 20.  Any delay in bringing the claim might therefore have a bearing upon relief (e.g. the period over which the Claimant might recover compensation for breach), but it is not such as to bar the claim entirely.  That has been the consistent – and, in my respectful view, correct – approach of earlier cases (see, e.g., Collins at [27]). 
32.	In terms of substance, Ms Rayson submits, again simply, that R never appeared to the Council to require accommodation, M choosing to make her own private family arrangements for his care in respect of which the Council took no part.  Therefore, no section 20 duty ever arose.
33.	The claim therefore turns on one discrete question.  The Council has always maintained that it has never reasonably appeared to them that R has required accommodation as a result of his mother’s inability to provide accommodation because of her detention in prison.  The question is this: Was that a lawful position for the Council to have taken?
34.	As Mr Johnson properly submitted, whether there was an exercise of a statutory duty (as the Claimant contends) or a private fostering arrangement (as the Council contends) is a question of fact, requiring analysis as to “what did the Council in fact do” (see D at [59]).  This, it seems to me, is crucial.  
35.	On 17 October 2012, the Council did nothing to encourage or facilitate the arrangement whereby R was taken in by the Claimant.  The events have to be looked at in a common sense way.  The arrest of M prompted an immediate crisis so far as the care of R was concerned; and the Claimant, commendably and understandably, stepped into the breach and agreed to take in her grandson on an emergency basis.  She took him in on the basis that he could stay with her for no more than a couple of weeks, as she had done before at times of family crisis.  At this stage, although M had been arrested, it did not reasonably appear to the Council that R required accommodation because R was staying with his grandmother and it was hoped (at least by her) that, after a short period, R would be released and would be able to go back to live with M.  At that stage, it would have been open to the Claimant not to have agreed to this voluntary arrangement – and, had she done so, it is likely that the Council’s section 20 obligations would have arisen immediately – but she did agree to R staying with her on a short-term basis.  The Council had no part in that arrangement.
36.	The position changed on 26 October 2012, when M pleaded guilty to a number of serious charges.  She was remanded in custody, and sensibly faced a substantial prison sentence.  At that stage, it was no longer possible for R merely to stay with the Claimant; he needed a semi-permanent home.  With M’s approval, the Claimant offered him that home in the full knowledge that the Council did not consider itself under any obligation to support her in doing so – nor, to her knowledge, did the City Council.  It would have been open to her then to say that, whilst she had been prepared for R to stay with her short-term, she was not prepared to offer to look after him longer term and to offer her house to him as his home during that time.  She did not do so.  Again, without encouragement or facilitation by the Council (or City Council), and with M’s approval, she agreed to continue to look after R in that role.  A local authority does not exercise its statutory powers and duties by facilitating a private arrangement for the accommodation of a child by merely not objecting to a purely private arrangement that is made.
37.	The Council did not facilitate the arrangement here in any way: they did not, for example, suggest that the Claimant would or might obtain support from them if she continued to look after R (as was the case in Collins and A).   To the contrary, when the Claimant took the decision to accommodate R in her house as his (at least temporary) home, she was fully aware that the Council would not support her on the basis that it was a purely voluntary arrangement.  She made a fully informed decision.  It was of course open to the Claimant not to enter into or continue such a voluntary arrangement; and, if she had indicated that was her wish, that again would have given rise to a section 20 obligation on the Council – which, of course, it may or may not have satisfied by placing R with the Claimant or, longer term, making an arrangement with her for R to live with her.  However, that did not happen.
38.	It is also noteworthy that the Council did not act as if this were a placement under section 23(2).  It never suggested to the Claimant or anyone else that this was a placement under section 23(2); nor did it attempt to fulfil its obligations under the Fostering Services Regulations 2002 that apply to such placements.  
39.	In my judgment, the Council was reasonable to conclude throughout that it did not appear to them that R required accommodation.  Insofar as he might have required other support in terms of benefits or maintenance, that is outside the scope of this challenge.  Suffice it to say, that there are clearly a number of potential sources of support for the Claimant in the position she now finds herself.
40.	In this claim, this court has simply to determine whether the Council acted unlawfully in determining that it did not appear to them that R was a child in need who required accommodation.  Mr Johnson, despite his able best efforts, has failed to persuade me that, at any material time, the Council did so err.  On the evidence, I firmly find that the arrangements made for the care of R by his grandmother, the Claimant, were purely voluntary in nature; and did not come about by any exercise of any statutory power or duty by the Council
41.	For those reasons, I refuse this application.