D v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith |
| Judgment Date | 07 March 2007 |
| Neutral Citation | [2007] EWCA Civ 182 |
| Docket Number | Case No: C1/2006/1571 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2007 |
[2007] EWCA Civ 182
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QB DIVISION, ADMINISTRATIVE COURT
Mr Justice Lloyd Jones
CO/7873/2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Keene and
Lady Justice Smith
Case No: C1/2006/1571
Mr Nicholas O'Brien (instructed by London Borough of Southwark) for the Appellant
Mr Stephen Cragg (instructed by Messrs Fisher Meredith) for the Respondent
Hearing date: 2 February 2007
This is the judgment of the Court.
Introduction
This is an appeal from the decision of Lloyd Jones J made on 22 nd June 2006 when, on an application for judicial review, he decided that, between January 2004 and June 2005, a child S had been looked after by the London Borough of Southwark (Southwark) pursuant to its statutory powers and duties under Part III of the Children Act 1989 and that Southwark was accordingly obliged to pay for S's accommodation and maintenance which had been provided by the claimant ED, who had cared for S during that period. Southwark denied that it had ever looked after S pursuant to its statutory powers or duties and contended that, in arranging for S to be cared for by ED, it had merely acted as a facilitator in bringing about a private fostering arrangement between S's parents and ED. That being so, it was under no duty to maintain the child. In this appeal, Southwark contends that the judge misapplied the law to the facts as found.
The Factual Background.
S was born in Jamaica in October 1990. Her parents have never been married to each other. At all material times, the mother has lived in Jamaica. The father, RB, lives in England and at all times material to this case resided in Southwark. S lived in Jamaica with her mother until 2001, when, at the age of 11, she came to England to live with her father. Under English law, the mother had and retained sole parental responsibility for S.
The father has had relationships with a number of women, one of whom is ED. In the course of her relationship with the father, ED cared for S, mainly at her own home, which was in the London Borough of Lambeth. It was ED who was responsible for enrolling S at the school where ED's own daughter attended. This school was in Southwark although, being close to the border between the two districts, it took children from both local authority areas.
ED's relationship with RB ended in 2003. In May 2003, Southwark placed S with local authority foster parents on account of concerns about RB's treatment of her. The placement was not successful. S was very unhappy. She left the foster parents and went to stay with ED for about two months, with Southwark's knowledge and consent. She then returned to live with her father. In December 2003, the father visited Jamaica and left S in the care of JA, another girlfriend or former girlfriend of his, who lives in Tottenham. In January 2004, S returned to live with her father.
On about 18 th January, this arrangement broke down and S went back to JA's. On 20 th January, S told the school staff that RB had been violent to her and that she did not wish to return to him. The school contacted Southwark Social Services to tell them of this allegation of violence and also that the father was coming to the school later in the day to collect S. Southwark instructed the school not to allow the father to take S away. It would send someone from the social services department and also someone from the Police Child Protection team to the school.
A meeting was convened in the late afternoon attended by the father. The representative from Southwark Social Services was Mr Dallas. RB admitted that he had been violent towards S. The officer from the Child Protection team instructed him that he should have no contact with S pending the investigation of her allegations of violence. I think the father must have agreed not to have contact with S. I cannot see that the police had power to direct him not to do so. He had not at that time been arrested; he was not on bail. Nor had care proceedings been commenced. Had he not agreed to keep away from S, it seems to me that Southwark would have had to obtain an interim care order for S's protection. However, that was not necessary.
It appears that S had told the school staff that she would like to go to stay or live with ED, as she felt safe there. RB agreed that, if it were possible, S should go to stay at ED's. RB then left the school and S was brought into the meeting. She confirmed that she would like to go to ED's. Mr Dallas telephoned ED, who was at work, and asked her whether she would care for S. She agreed to do so and it was arranged that Mr Dallas would take S to ED's house and leave her in the care of her eldest child, a young man aged 19. That was done. S has lived with ED ever since.
The following day, ED attended at Mr Dallas's office at his request. Mr Dallas told her that social services knew that RB had been violent to S in the past. He told ED that someone from his office would visit her within a few days and that steps would be taken to offer her assistance. He did not say anything about the length of time for which ED was to care for S. Because ED was concerned for S's welfare, she indicated her willingness to cooperate. Nothing specific was said about the financial arrangements and ED assumed that these would be made by 'someone from the office'. However, no one visited her. ED telephoned Mr Dallas on a number of occasions but still no one came.
On 31 st January, Mr Dallas spoke to S's mother in Jamaica by telephone and she consented to S being cared for by ED. Mr Dallas' note of this conversation made it plain that he regarded the arrangement he had made as a private fostering arrangement. In that regard it was different from the notes he made of his conversations with ED; they were silent as to the legal basis of the arrangements being made.
ED found it difficult to care for S without financial support. She asked Mr Dallas for support and, on four occasions between January and March 2004, he arranged for her to receive modest lump sums: £230 in all.
ED had arranged to spend a holiday with relatives in the USA from late March; she was to be away for about three weeks. She telephoned Mr Dallas to suggest that S should be left in the care of a friend of hers named PL. Mr Dallas approved the arrangement, spoke to PL and subsequently arranged for her to be paid £265 for looking after S. On her return home in April 2004, ED again asked Mr Dallas about financial support and she was refused any further payment. Southwark's position was that, as S was resident in Lambeth with ED, it was for the London Borough of Lambeth to provide any services for S, including financial support. Southwark gave notice to Lambeth that, in their view, S was Lambeth's responsibility. Southwark also advised ED to apply to Lambeth. However, Lambeth's attitude (as expressed to both Southwark and to ED) was that, as Southwark had placed S with ED, pursuant to their statutory duties, it was Southwark's responsibility to maintain her. ED has received no further financial support from either authority since March 2004.
S has thrived in the care of ED and, on 7 th June 2005, ED applied for and obtained a residence order, which has the effect of giving ED parental responsibility for SB.
The Statutory Framework
Under the Children Act 1989, local authorities have a wide range of powers and duties in respect of children within their areas. These include, in Part III, powers and duties in respect of children 'in need'. There is a general power, pursuant to section 17, to provide assistance, including financial assistance, for children and their families and also a positive duty, pursuant to section 20, to provide accommodation and financial support in respect of some children who appear to be in need of accommodation. Part IX of the Act imposes upon local authorities responsibilities of a supervisory nature in respect of children who are being cared for under private fostering arrangements. It is the duties under Parts III and IX of the Act with which this appeal is concerned. These powers, duties and responsibilities are additional to the duties imposed upon an authority pursuant to the making, by a court, of a care or supervision order.
Part III begins with a statement of the general duties of local authorities for children in need and their families. Section 17(10) defines a child in need and it is common ground that at the material time, S was a child in need.
Section 17(1) provides:
“It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) –
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) 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.”
Section 17(2) provides that the local authority shall have a number of specific duties set out in Part 1 of Schedule 2 to the Act. Under section 17(6), the services provided by an authority under this section may include providing accommodation, giving assistance in kind or, in exceptional circumstances, in cash.
Section 20 provides for the provision of accommodation for children in need.
“(1) 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...
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