Barrett v Kirklees Metropolitan Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Langan QC |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] EWHC 467 (Admin) |
| Date | 12 March 2010 |
| Docket Number | Case No: CO/8915/2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2010] EWHC 467 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
Leeds Combined Court Centre
The Court House
1 Oxford Row
Leeds LS1 3BG
Before : His Honour Judge Langan QC
Case No: CO/8915/2009
Mr Patrick Roche (instructed by Ridley & Hall LLP, Solicitors) for the Claimant
Ms Julia Nelson (instructed by Legal Services of the defendant) for the Defendant
Hearing date: 02 March 2010
Introduction
Special guardianship orders were introduced into family law by the Adoption and Children Act 2002. Broadly speaking, these orders are designed to enable a child who would otherwise be the subject of a care order to be looked after by a relative. Where a special guardianship order is made, and financial support is necessary to ensure that the special guardian can look after the child, financial support is payable by the relevant local authority. This case has to do with the level of such support. The policy of the defendant council ('Kirklees') is to pay special guardianship order allowance ('SGOA') at two-thirds of the rate at which it pays fostering allowance. The claimant ('Mrs Barrett') is the special guardian of her grandson ('Liam'). In this claim for judicial review, Mrs Barrett challenges the lawfulness of that policy. Her application for permission to apply was initially refused by me on the papers, but was allowed by Foskett J on a renewed oral application.
Special Guardianship Guidance
The legislative framework within which SGOA is paid is set out at length in the judgment of Black J in B v London Borough of Lewisham [2008] EWCH 738 (Admin). It is not necessary for me to set out that framework here because in this case, as before Black J, there was just one quasi-statutory provision on which debate was focused. This is paragraph 65 of Special Guardianship Guidance published by the former Department for Education and Skills:
“In determining the amount of any ongoing financial support the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The local authority's core allowance plus any enhancement that would be payable in respect of the particular child will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis.”
By “core allowance” is meant that element of fostering allowance which represents the cost of maintaining the child as distinct from the remuneration of the foster parents.
As Black J pointed out at paragraph 20 of her judgment, this guidance was issued pursuant to section 7 of the Local Authority Social Services Act 1970. The effect of this is that a local authority is required to follow the guidance “with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course”: the citation is from the judgment of Sedley J in R v Islington LBC, ex p Rixon (1997–8) 1 CCLR 119 at 123.
Kirklees' policy
The relevant policy applied by Kirklees was approved at Cabinet in February 2007. The scheme is that each of three distinct allowances, residence allowance, adoption order allowance and SGOA, is paid at two-thirds of the rate at which fostering allowance is paid, but with a deduction of child benefit unless the claimant is on income support. The reference to fostering allowance is to the core element. That basic rate of fostering allowance depends on the age of the child.
The adoption of the policy was supported by the following rationale:
“1. Holders of Residence Order, Special Guardianship Orders or Adoption Orders do not have formal duties to perform in the same way as foster carers. The child is no longer looked after so there are no reviews to attend, no courts to visit, no case conferences and no requirement to undertake training.
2. An advantage of placing a child with his/her relatives is that they have an established relationship with the child and it is the existence of such a relationship that promotes stability and less destructive behaviours.
3. One of the advantages of placing a child with a relative is that ongoing contact with birth parents and others is usually a feature of routine family life.
4. A child subject to Residence or Special Guardianship Orders are [sic] usually placed with relatives at the end of a legal process [which] will mean that the placement may tend to be more stable with less pressure on carers' time.
5. To comply with National Care Standards foster carers need to demonstrate a high level of availability. No such standards apply to holders of Residence or Special Guardianship Orders.
6. Foster carers cannot claim child benefit. Holders of a Residence Order, Special Guardianship Order or Adoption Order can claim child benefit (though this is deducted from the allowance paid).
7. Unlike foster carers holders of such orders are entitled to apply for other state benefits…
8. The courts will have scrutinised the care plan submitted by the Local Authority and considered by a child's independent Guardian. The Court must be satisfied with the plan and support package to have endorsed the making of a final order. The court has the ultimate role in scrutinising and making such decisions after considering all the information available.”
Mrs Barrett and Liam
Mrs Barrett is aged 63 years. She has no private means and receives pension credit.
Liam was born on 16 August 2002 and is Mrs Barrett's grandson. The Social Services Department of Kirklees became involved with Liam, following concerns about the ability of his mother to look after him. In May 2005 Liam was assessed as a child in need. In June 2005 he was registered under the category of emotional abuse. In the same month, Liam's mother was compulsorily detained under the mental health legislation. Liam was then placed with foster carers, care proceedings were issued, and Kirklees obtained an interim care order.
Mrs Barrett put herself forward as a potential carer for Liam. She was made a party to the care proceedings, but did not consider applying for a special guardianship order. Her position in the proceedings was that a care order was appropriate. The idea that Mrs Barrett should become Liam's special guardian came late in the day from the social worker who was involved in the case and this was supported by Liam's independent guardian
At the final hearing in the care proceedings, which took place on 17 March 2006, the court made a special guardianship order to Mrs Barrett with a three year supervision order to Kirklees. I do not think that it is unfair to say that the special guardianship plan which was put to the court was cobbled together at the last minute: it fact it was signed by the social worker and her manager on the day of the hearing. The plan stated that SGOA would be paid at £74.71 a week, which was said to be based upon residence allowance which was itself two-thirds of fostering allowance.
Soon after the final hearing, Liam was moved from his foster carers to Mrs Barrett and he has been living with her ever since.
There is no doubt that Liam is a handful. Mrs Barrett describes him as “a very damaged child” whose behaviour at home is “often terrible.” He is “quite violent” and “shouts and screams when he does not get his own way.” He “finds it impossible to play with other children out of school.” School does absorb his energy, but school holidays “are a nightmare”, and Mrs Barrett does not have the money to pay for the activities which would use up Liam's energy and keep him occupied. Further, Mrs Barrett has had to face contested proceedings brought by Liam's mother for increased contact, and such contact as there is has to be supervised through Social Services and “is anything but routine.”
There has never been any individual assessment of Mrs Barrett's financial requirements in respect of Liam. She complains, understandably, that there were no annual reviews of the amount to be paid to her, and it was only after the commencement of these proceedings that Kirklees made an appropriate backdated lump sum payment. Efforts have been made by Mrs Barrett through her...
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