R ( L (A Child)) v Manchester City Council; R (R (A Child)) v Manchester City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 28 September 2001 |
| Neutral Citation | [2001] EWHC 707 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3954/2000 |
| Date | 28 September 2001 |
[2001] EWHC 707 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Munby
CO/3954/2000
CO/965/2001
Mr Roger McCarthy QC and Mr Neil Allen (instructed by Green & Co) appeared on behalf of the applicants
Mr Ernest Ryder QC and Ms Yvonne Coppel (instructed by the City Solicitor, Susan Orrell) appeared on behalf of Manchester City Council
September 2001
These are separate applications for judicial review both of which raise essentially the same points although the facts of the two cases are slightly different.
Put shortly the issue is the legality of a local authority's policy under which it pays those of its short term foster carers who are friends or relatives of the child at a different and very significantly lower rate than it pays other such foster carers.
In the one case (CO/3954/2000) the applicants are J, who was born on 15 September 1995, and his younger twin brothers born on 18 August 1997. The L children, as I shall refer to them, act by their litigation friend, Edward Taylor ("Mr Taylor"). In the other case (CO/965/2001) the applicants are H, who was born on 9 May 1993, and her younger sister born on 12 May 1996. The R children, as I shall refer to them, act by their litigation friend Joan Rowland ("Ms Rowland"). In each case the defendant is Manchester City Council ("Manchester").
The L children
On 17 November 1997 emergency protection orders under section 44 of the Children Act 1989 ("the Act") were made in respect of all three children. On19 November 1997 care proceedings were commenced by Manchester under Part IV of the Act and Mr Taylor was appointed the children's guardian ad litem. Interim care orders in favour of Manchester were made on 20 November 1997. On 28 November 1997 the eldest boy was placed by Manchester with J and NT, who are and who I will refer to as the maternal grandparents. On 4 December 1997 the younger two boys were likewise placed with the maternal grandparents. On 8 January 1998 Manchester approved the placement of the children with the maternal grandparents on a short term basis. On 9 January 1998 a placement plan for the children to remain with the maternal grandparents was drawn up. On 21 January 1998 a placement agreement was entered into between the maternal grandparents and Manchester social services. On 8 January 1999 the maternal grandparents became long term foster carers for the three children and on 27 January 1999 the care proceedings came to an end with the making of full care orders. The children remain placed with the maternal grandparents.
The R children
On 16 March 1999 emergency protection orders were made in respect of both children. On 19 March 1999 Ms Rowland was appointed the children's guardian ad litem. On 24 March 1999 care proceedings were commenced by Manchester. Manchester's original aim had been to attempt to rehabilitate the children to their mother but this foundered and in November 1999 it was determined that the children required a permanent adoptive placement. However in December 1999 their elder half-sister, who I shall refer to as C, put herself forward, asking to be considered as a permanent carer for the children. On 18 April 2000 the fostering panel decided not to approve her as a long term foster carer. But on 25 April 2000 she was joined as a party to the care proceedings and granted leave to apply for a residence order under section 8 of the Act. Following the completion on 26 July 2000 of an independent social work assessment, on 17 August 2000 the permanence panel endorsed the recommendation of the assessment that permanence was in the best interests of the children and would best be met by their placement with C. On September 2000 the process of rehabilitation of the children to C commenced and on 17 September 2000 they were placed with her. Placement agreements in relation to the children were completed on 6 October 2000. On 9 January 2001 the court made final care orders in relation to both children. The children remain placed with C.
The legal framework
By virtue of sections 31(11), 33(1) and 22(1)(a) of the Act the L children have at all times since 20 November 1997 and the R children have at all times since 16 March 1999 been, and they all remain, children who are being "looked after" by Manchester within the meaning and for the purposes of sections 22 and 23 of the Act.
Manchester's duties and powers in relation to children being looked after by it are set out in sections 22 and 23 of the Act. These include the duty to safeguard and promote the children's welfare and to provide accommodation and maintain the child in other respects (sections 22(3)(a), 23(1) and 23(2)). By section 23(2)(a)(ii) accommodation and maintenance may be provided by arranging placement with a relative. After placement, unless he or she falls within one or other of the excluded categories in section 23(4) (and in the present case neither the maternal grandparents nor C are so excluded) such a relative is by virtue of section 23(3) a "local authority foster parent". Section 23(2)(a) provides that placement is to be "on such terms as to payment by the authority and otherwise as the authority may determine".
It should be noted that the statutory framework envisages that all appropriate steps are taken to ensure that children are placed with their families so far as possible (section 23(6)). In this way the Act promotes the aim of implementing the right to respect for family life enshrined in Article of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Any placement of a child under section 23(2)(a) of the Act is further regulated by the Foster Placement (Children) Regulations 1991, SI 1991 No 910. These regulations require that a written agreement covering the matters specified in Schedule 2 of the regulations is to be completed before approval of a person as a foster parent (reg 3(6)) and, save in the case of emergency and immediate placements, which are governed by reg 11, that a written agreement covering the matters specified in Schedule 3 is to be completed prior to any placement of a child with the foster parent (reg 5(6)). Schedule 3 includes amongst the matters that must be set out in the placement agreement (para 2) the local authority's arrangements for the financial support of the child during the placement.
Quite apart from the duties it owes to "looked after" children, Manchester is under a duty, imposed on it by section 17 of the Act, to safeguard and promote the welfare of children who are in need, as defined in section 17(10). Section 17(6) empowers a local authority for this purpose to give "assistance in kind or, in exceptional circumstances, in cash."
Manchester's policy in relation to paying foster carers
Manchester's policy in relation to paying foster carers is set out in its Children's Service Manual dated May 1992.
In relation to foster carers generally it provides for a minimum payment which in January 1998, when the L children were placed with the maternal grandparents, was £77.60 per week per child for children up to seven years old. In March 1998 it was increased to £79.93 per week per child, in March 1999 to £81.13 per week per child, and by October 2000, when the R children were placed with C, had risen to £84.42 per week per child (£104.86 for children from eight to ten years old). These sums were expressed as comprising a "maintenance" and an "expenses" element, the latter including "clothing, school uniform, pocket money, dinner money, purchase of toys and books." Thus for children up to seven years old the figures were:
In addition Manchester normally pays a birthday allowance, currently £25.22 per child, a Christmas allowance, £50.46 per child, and a holiday allowance, £138.75 per week per child.
| Maintenance | Expenses | Total | |
| 1997 | £46.85 | £30.75 | £77.60 |
| 1998 | £48.26 | £31.67 | £79.93 |
| 1999 | £49.46 | £31.67 | £81.13 |
| 2000 | £52.75 | £31.67 | £84.42 |
Manchester has a different policy in relation to cases where there is an emergency or immediate placement under reg 11(3) with a friend or relative and also in relation to cases where there is what it terms a "short term placement" with a friend or relative. These are dealt with in paragraphs 5 and 6 respectively of Chapter Eight (iv) in Volume 2 of the Children's Service Manual, 'Placement of Children with Friends/Relatives'. I am concerned in the present case with paragraph 6 short term placements.
Financial support for such placements is dealt with in paragraph 6(10) which reads as follows:
"Given the various possibilities that could arise during the planning/sorting out period whilst a child is placed short term with a friend/relative, it is important to get the balance correct between adequately supporting the placement financially and not creating unnecessary financial dependency upon the Local Authority; raising financial expectations that cannot be maintained; or providing a disincentive for a friend/relative to apply for a Section Eight Residence order on financial grounds alone. It is also felt that during this period it would be beneficial to treat a child so placed by the local authority in a similar fashion to children in need living with friend/relative(s), not so placed by the local authority.
Therefore a discretionary sum of money will be made available for the relative/friend to contribute towards the cost of maintaining the child short term...
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