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Local Authority Focus - December 2013

Sally Gore, barrister of 14 Gray’s Inn Square, in the first of a series of updates for children lawyers and professionals, considers recent developments affecting the decision-making and procedures of local authority children’s services.

Sally Gore, barrister, 14 Gray's Inn Square

Sally Gore, barrister, 14 Gray's Inn Square

Judicial review
The role and scope of judicial review in the context of ongoing care proceedings has often caused uncertainty for practitioners.  In R (H) v Kingston upon Hull City Council [2013] EWHC 388, some clarity has been provided.  This case concerned the familiar problem of the extent to which a local authority may engage unilaterally in decision-making in respect of a child when there is an interim care order in place.  In this case, the local authority had removed children from their placement with paternal grandparents to foster care following a negative viability assessment of the grandparents.  The Children's Guardian had not been consulted, there had been no attempt to return the matter to court, and, it was held, no meaningful consultation with the parents.  The mother therefore applied for a judicial review of the decision to move the children.  This case therefore concerns not only the question of what a local authority may do in terms of exercising parental responsibility whilst the family court is seised of the child's welfare, but also the role of judicial review and the Administrative Court which makes decisions on an entirely different basis from the family court.  Whereas the judge hearing the care proceedings must regard the children's welfare as paramount, a claim for judicial review considers only the lawfulness of the decision being challenged. 

The judgment of HHJ Richardson QC, sitting as a judge of the Administrative Court, therefore focuses on whether, and in what circumstances, the family court or the Administrative Court should hear a challenge to local authority decision-making when care proceedings are extant and an interim care order is in force.  It is suggested that there are limited instances in which judicial review would be appropriate but that these include:

In relation to the third of these points, recent authority from the Court of Appeal has made it clear that the court retains jurisdiction to decide which public law order is appropriate (if any) and it is not constrained in this evaluation by the view of the local authority as to the need for a particular order.  If the local authority refuses the court's requests to provide a care plan setting out what services it can provide under the placement option(s) and order(s) that the court wishes to consider (and not just those which the local authority wishes it to consider), or indicates that it would decline to implement the plan preferred by the family court, an application for judicial review may follow: W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227, in particular paras 71-102. For an article focusing on the Neath case, see W v Neath Port Talbot – Courts, Local Authorities and a Mexican Stand-off, by Andrew Pack.

The judgment in R (H) does not suggest that this list is exhaustive.  Although the observation is made that the circumstances in which judicial review is appropriate are likely to be highly fact-specific, all of the examples given are essentially an application of the principle that judicial review is intended as a remedy of last resort.  Perhaps this gives a clue as to how this judgment will come to be applied in future cases.

The question of whether or not a child is or has been looked after continues to generate case law.  However, the latest case of Re B [2013] EWCA Civ 964 is somewhat different.  In that case, a district judge hearing care proceedings had assumed jurisdiction to decide whether or not the child was 'looked after' for the purposes of s.22(1) Children Act 1989.  This had been upheld by the circuit judge on appeal.  Neither county court judge had jurisdiction to determine this issue.  Consequently, both judgments were quashed by the Court of Appeal.  This case serves as a stark warning to practitioners of the need to be aware of when points arise in the context of care proceedings that, in the absence of agreement, can only be properly resolved by means of an application for judicial review.  The fact that the parties had agreed to the matter being determined by the district judge in this way did not cure the jurisdictional deficit.

The substantive issue in this case, on which the Court of Appeal made comment but was unable to rule, was one that frequently occurs in practice.  The local authority had commenced care proceedings but the child's grandparents attended the interim care order hearing and put themselves forward as carers.  This led to an interim residence order being made in favour of the grandparents.  Later in the proceedings, when the issue of funding the child's longer-term care with the grandparents arose, they sought to argue that the child was 'looked after'.  In the absence of an interim residence order, they would clearly have been correct: Southwark LBC v D [2007] EWCA Civ 182; R (SA) v Kent County Council [2011] EWCA Civ 1303. 

However, in this case, despite the fact that the local authority could be said to have played a central role in placing the child with the grandparents, the preliminary view of the Court of Appeal was that the interim residence order meant that the child was not looked after.  The reasoning, which is consistent with the view taken in earlier cases (GC v LD & Ors [2009] EWHC 1942 (Fam), [2010] 1 FLR 583), was that the parental responsibility conferred on the holder of a residence order is wholly inconsistent with a continuing duty under s.20(1) Children Act 1989 to accommodate the child.  By analogy, a residence order has the effect of discharging a care order (s.91(1) Children Act 1989) and so it logically follows that it should also bring to an end any duty under s.20(1).

Part 1, CYPA 2008 comes into force
On 12th November 2013, Part 1 of the Children and Young Persons Act 2008 came into force in England.  This legislation allows local authorities to delegate their functions in relation to children in care and some functions in relation to care-leavers to third parties.  On the same date, the Education Secretary gave a speech at the NSPCC headquarters praising local authorities who are adopting a more innovative approach to social work and calling on others to do the same.

Part 1 CYPA 2008 allows a local authority to delegate its social services functions in relation to a child who is looked after by it and in relation to its advice and assistance functions under sections 23B to 24D of the Children Act 1989  to 'a body corporate' which may not be another local authority.  Social services functions have the meaning set out in section 1A of the Local Authority Social Services Act 1970.  However, there are a number of restrictions on the delegation of such functions.  In particular, local authority functions in relation to independent reviewing officers may not be delegated and a local authority's functions as an adoption agency may only be delegated to a registered adoption society.

A number of authorities have been involved in a pilot of this legislation since 2008.  Those authorities have been encouraged to develop a Social Work Practice model of service-provision.  This typically involves a small, autonomous "professional practice" which operates outside the hierarchy of local authority decision-making.  It consequently has greater autonomy as well as control over its own budget.

Although the Government had considered removing the requirement that third parties providing social work services are registered with Ofsted, the sunset provision in section 6, CYPA requiring it to be brought into force by November 2013 coupled with opposition to this proposal from the House of Lords meant that time has not allowed for this to happen.  Part 1 CYPA is therefore supplemented by the Providers of Social Work Services (England) Regulations 2013.   However, the Government remains of the view that Ofsted regulation of third-party providers is unnecessary in light of the requirement that local authorities enter into appropriate contractual relationships with these providers. 

Local authority procedures
In LB v The London Borough of Merton [2013] EWCA Civ 476, the child had been accommodated pursuant to section 20, Children Act 1989 throughout the care proceedings up until a care order was made at the final hearing.  The local authority had not at any point sought an interim care order.  A final care order and placement order were made and the mother appealed.  The appeal centred on whether it had been permissible for the local authority to take the case to its adoption panel for a decision to be made about whether the local authority ought to formulate a care plan of adoption when the mother did not agree with the possibility of the child being adopted and the local authority did not have parental responsibility for the child.

This appeal, which was unanimously refused by the Court of Appeal, draws an important distinction between decisions that a local authority may take in respect of a child which amount to an exercise of parental responsibility and those which are purely administrative functions, duties and powers of the local authority.  In this case, the local authority had been duty-bound to take the case to panel by virtue of the wording of section 22 of the Adoption and Children Act 2002.

The facts of this case arose prior to the amendment of the Adoption Agencies Regulations 2005. Regulation 19 of those Regulations requires an adoption agency to take into account the recommendation of the adoption panel in coming to a decision about whether a child should be placed for adoption applied to these proceedings.

There is relatively little case law on what constitutes an exercise of parental responsibility by a local authority.  This case may be of wider application in that it confirms and clarifies that not every aspect of decision-making in respect of a looked-after child amounts to an exercise of parental responsibility.  It is difficult to see how the Court of Appeal could have come to any other conclusion since a contrary decision would have entirely undermined the foundations of voluntary arrangements for children generally and section 20 placements in particular.

Although the Adoption Agencies Regulations 2005 have now been amended by the Adoption Agencies (Panel and Consequential Amendments) Regulations 2012, the result being that a panel-decision is no longer required prior to making an application for a placement order, it seems safe to assume that the reasoning of the Court of Appeal is equally applicable to the new regime, which still requires a decision about the child's best interests by the agency decision-maker prior to such an application.

Fostering awards and allowances
R (ota X) v London Borough of Tower Hamlets
[2013] EWCA Civ 904  is the latest case to consider differential payments to foster carers who are related to a child as opposed to those who are not.  In this case, unlike in the case of R (L and others) v Manchester City Council [2002] 1 FLR 43, the difference was not in the allowance paid (which reflects the cost of providing for the needs of the children) but in the fees element (fees are a form of remuneration for foster carers).  A significant part of the judgment considers the relevant statutory guidance, all of which makes it clear that 'family and friends' carers should not be treated differently in respect of either element unless the local authority in question has cogent reasons for doing so.

The carer in this case was the aunt of three children with disabilities.  Whilst it was common ground that she received sufficient to meet the needs of the children, the policy adopted by Tower Hamlets was that the additional increment paid to foster carers of disabled children contained both an 'allowance' element and a 'fees' element.  Family and friends carers were entitled to the 'allowance' for disabled children but not to the reward/fee element.

Dismissing the appeal, the Court of Appeal followed the reasoning of Males J at first instance.  The factual differences between the present case and the Manchester case were not the key issue in this case; rather, it was whether the local authority had cogent reasons for departing from the statutory guidance.  The guidance was clear that there should not be differential treatment such as that outlined and the council's reasons for departing from it were essentially that they disagreed with it.  To provide the same remuneration for family and friends carers would impact on their ability to provide other services.  However, like Males J, the Court of Appeal was of the view that the council had not considered all of the options open to it, such as the possibility of having a fee structure that recognised carers with additional qualifications.  Unrelated carers for whom fostering was an occupation were more likely to have undertaken further courses and qualifications.  This would be a lawful way of differentiating between different carers as long as the policy was universally applied.

Sally Gore is the author of The Children Act 1989: Local Authority Support for Children and Families.