London Borough of Tower Hamlets v R X
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Lewison,Lady Justice Gloster |
| Judgment Date | 24 July 2013 |
| Neutral Citation | [2013] EWCA Civ 904 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/0828 |
| Date | 24 July 2013 |
[2013] EWCA Civ 904
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH
DIVISION ADMINISTRATIVE COURT (MALES J)
REF: CO13267/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Lewison
and
Lady Justice Gloster
Case No: C1/2013/0828
Mr Kelvin Rutledge QC and Ms Sian Davies (instructed by London Borough of Tower Hamlets Legal Services) for the Appellant
Ms Fiona Scolding and Ms Amelia Walker (instructed by Ridley and Hall LLP) for the Respondent
Hearing date: 4 July 2013
Approved Judgment
X is the foster mother of her two nephews and one niece. In the Administrative Court, Males J began his judgment by describing her as "one of the unsung heroines of our society": [2013] EWHC 480 (Admin), at paragraph No one would disagree with that. In these judicial review proceedings she is challenging the policy and practice of the London Borough of Tower Hamlets (the Council) whereby she, as a family foster carer, receives less money than she would receive as an unrelated foster carer looking after the same children. Males J concluded that the Council's policies are unlawful "to the extent that they discriminate on the grounds of the pre-existing relationship with the child between family and unrelated family carers": paragraph 115. He reached this conclusion as a matter of domestic public law and did not determine an alternative ground of challenge based on Article 14, in conjunction with Article 8, of the European Convention on Human Rights and Fundamental Freedoms.
The family background
I gratefully take and adapt the following description of the family background from paragraphs 1 – 4 of the judgment below. Since August 2009 X has been the carer for, and since February 2011 the registered foster mother of, these three damaged and difficult children. The children's parents both have learning difficulties. Their mother has problems with drugs and alcohol. Their father has schizophrenia and is currently in a mental hospital. The children (who have three other siblings with whom this case is not concerned) experienced severe neglect from a young age. The eldest child, now aged 16, has learning difficulties, speech and language difficulties, and poorly developed social skills. She is emotionally very immature and has had thoughts of suicide. She has nocturnal eneuresis. She is currently under psychiatric care because she says that she hears voices. The middle child, aged 14, has autism and Tourette's syndrome, with severe emotional difficulties, compulsive behaviour and a history of self harm. He has learning difficulties, speech and language problems, and features of ADHD. When he first arrived in the X's care he was doubly incontinent, self harming, dribbled and spat constantly, and was very destructive of furniture and other objects. He still has problems controlling his continence. The youngest child, aged 7, has ADHD and autism and severe development delay, as well as asthma and a squint. Upon placement with X he required constant supervision (including at night when he would wake up frequently, as he still does). He had tantrums and could behave violently. His behaviour at school still includes attacks on other children and members of staff. He too suffers from nocturnal eneuresis.
In 2007, after a lengthy period when social services had been involved with the family, the children were removed from the parental home and were placed with foster carers. However, three separate placements each broke down as the carers could not cope. For a while the children lived separately from each other as no foster carer could be found to manage all three of them together. Eventually the Council approached X, and asked if she would consider caring for them. She agreed to do so, although this involved giving up her job as an art restorer, which gave her financial independence and which she enjoyed, moving (at the Council's request) to a bigger house in a semi-rural area out of London (which posed its own problems, as X is blind in one eye and cannot drive) and becoming dependent on state benefits.
In February 2011 X was formally approved as a foster carer for the children. This required her to satisfy a number of stringent requirements, which many relatives caring for children would not be able to do. There are in fact only a dozen or so registered family foster carers currently caring for children looked after by the Council. The panel which approved X as a foster carer observed that it was highly unusual for three such complex children to be placed with a single foster carer, and that it was only permissible in this case because the alternative was to split up the family and because of the dedication of X.
The children's most recent LAC (looked after child) reviews make clear that X has provided an excellent standard of care and commitment to the children which it would be impossible to replicate elsewhere. These are extremely demanding and exhausting children and the emotional, physical and financial cost of caring for them is high, but X has provided them with a safe and secure environment in which to grow up and has brought a measure of calm and stability to their lives. Despite their continuing and very significant problems, the children are now happy and settled in a way which would otherwise have been impossible. Indeed, the difficulty of providing any alternative and the extent of the burden undertaken by X can be demonstrated further by the fact that, although the Council was willing to pay for respite care, for some two years it was impossible to find anybody willing to care for the children while X had a break from them. This only became possible in about October 2012.
The statutory framework
The principal statutory provisions are contained in the Children Act 1989 (as amended). Part III is headed Local Authority Support for Children and Families. The following provisions are of particular relevance:
"17.(1) 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
…
(10) For the purposes of this Part a child shall be taken to be in need if —
(a) he 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 this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and 'family', in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
…
20.(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 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.
…
22. (1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is —
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions …
…
(3) It shall be the duty of a local authority looking after any child —
(a) to safeguard and promote his welfare; and
(b) to make use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
…
22A When a child is in the care of a local authority, it is their duty to provide the child with accommodation.
22B It is the duty of a local authority to maintain a child they are looking after in other respects apart from the provision of accommodation.
22C(1) This section applies where a local authority are looking after a child (C).
(2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to sub-section (4)).
(3) A person (P) falls within this subsection if —
(a) P is a parent of C;
(b) P is not a parent of C but has parental responsibility for C; or
….
(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so —
(a) would not be consistent with C's welfare; or
(b) would not be reasonably practicable.
(5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6) In subsection (5) 'placement' means —
(a) placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b) placement with a local authority foster parent who does not fall within paragraph (a);
(c) placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or
(d) subject to section 22D, placement in accordance with other arrangements...
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