R Nationwide Association of Fostering Providers v Bristol City Council and Others Local Government Association (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 15 December 2015 |
| Neutral Citation | [2015] EWHC 3615 (Admin) |
| Date | 15 December 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1388/2015 |
[2015] EWHC 3615 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice William Davis
Case No: CO/1388/2015
and
Mr Ian Wise QC and Mr S Broach (instructed by Anthony Collins) for the Claimant
Mr Peter Oldham QC (instructed by Bristol City Council, Leeds City Council and Suffolk County Council) for the Defendants
Mr James Goudie QC (instructed by Local Government Association Legal Department) for the Interested Party
Hearing dates: 3–4 November 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant ("NAFP") is an association established in 2008 to represent the interests of independent foster providers throughout England, Wales and Scotland. It has 78 members ranging from large charities such as Barnardos to small scale providers serving a limited geographical area. It brings this claim for judicial review against the Defendant local authorities on behalf of its members. Each of those local authorities has a duty to accommodate and maintain any child which it is looking after. In certain circumstances each local authority has a duty to place such a child in the "most appropriate placement available", the duty being imposed by Section 22C of the Children Act 1989 ("the Act"). In due course I shall consider in detail the proper construction of Section 22C of the Act in the context of the overall legislative structure with the construction of Section 22C(5) being the critical issue. In order to understand the evidence it is necessary to set out Section 22C at the outset. It reads as follows:
22C Ways in which looked after children are to be accommodated and maintained
(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 subsection (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
(c)in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made.
(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 which comply with any regulations made for the purposes of this section.
(7) In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)–
(a)give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;
(b)comply, so far as is reasonably practicable in all the circumstances of C's case, with the requirements of subsection (8); and
(c)comply with subsection (9) unless that is not reasonably practicable.
(8) The local authority must ensure that the placement is such that —
(a)it allows C to live near C's home;
(b)it does not disrupt C's education or training;
(c)if C has a sibling for whom the local authority are also providing accommodation, it enables C and the sibling to live together;
(d)if C is disabled, the accommodation provided is suitable to C's particular needs.
(9) The placement must be such that C is provided with accommodation within the local authority's area.
(10) The local authority may determine —
(a)the terms of any arrangements they make under subsection (2) in relation to C (including terms as to payment); and
(b)the terms on which they place C with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).
(11) The appropriate national authority may make regulations for, and in connection with, the purposes of this section.
(12) In this Act "local authority foster parent" means a person who is approved as a local authority foster parent in accordance with regulations made by virtue of paragraph 12F of Schedule 2.
The claim of NAFP is that the Defendant local authorities have failed to comply with the duty set out in Section 22C(5). It is argued that the breach of duty arises because those local authorities operate policies which mean that in many cases they do not consider a placement with an independent foster provider unless and until no placement can be found with the local authority's in-house providers of foster care. NAFP argues that, in order to be able to consider which placement is "the most appropriate", a local authority must consider all placements available at the relevant time. It can do that only if the search for a placement is made with every potential foster provider. The claim is a challenge to the lawfulness of the approach taken by the Defendant local authorities. It is not argued that the Defendant local authorities acted irrationally or were Wednesbury unreasonable in their approach. Rather, it is said that they acted unlawfully due to their breach of statutory duty.
Although the claim is brought against three named local authorities, NAFP's case is that local authorities throughout England and Wales adopt the same general practice as the Defendant local authorities. The remedy sought is a series of declarations applicable to any local authority engaged in the process of seeking a placement for a looked after child.
The Defendant local authorities resist the claim. They appeared by counsel at the hearing and their case was fully argued before me. The Local Government Association ("LGA") was named as an interested party. The LGA is an unincorporated association with 415 member local authorities throughout England and Wales, those authorities representing a population of over 50 million people. The LGA submitted grounds of resistance to the claim and written submissions from James Goudie QC in support of such resistance prior to the hearing. The LGA also provided further written submissions from Mr Goudie after the hearing in relation to an issue which arose during oral argument. The Defendant local authorities supported by the LGA argue that they acted lawfully and in accordance with their statutory duty. They say that the duty imposes no obligation in respect of the process to be followed in determining "the most appropriate placement available". A challenge on Wednesbury grounds to the decision of a particular local authority theoretically could be made. No such challenge is made in this case. Since NAFP are fully conversant with the processes of the Defendant local authorities, I must infer that NAFP determined that such a challenge would not be sustainable.
Since the reasonableness of the Defendant local authorities' approach is not in issue, detailed consideration of how each of the Defendant local authorities goes about placing looked after children for which it is responsible is not strictly necessary. However, I shall set out in brief the evidence relating to each authority. That evidence helps in an understanding of the processes to which Section 22C is directed. I shall then consider the full statutory picture and any available guidance. Finally, I shall set out my conclusions as to the true extent and scope of the duty set out in Section 22C.
There are preliminary issues with which I must deal before embarking on the main parts of this judgment. First, NAFP seeks permission to rely on further evidence served some six weeks prior to the hearing, namely a further statement from Harvey Gallagher, the Chief Executive of NAFP, Mr Gallagher's initial evidence having been filed at the outset, a statement from Brenda Farrell, a senior manager with Barnardos and a report from a Mr Andrew Rome, an accountant with considerable experience of the public sector. I received the evidence de bene esse. It is arguably irrelevant in which event it would be inadmissible whenever it had been served. As already noted the issue in the case is the construction of a particular statutory provision. Mr Gallagher's further evidence concerns an Ofsted report in respect of one of the Defendant local authorities, the support said to be forthcoming from independent foster providers for NAFP's claim, whether the construction contended for by NAFP would overwhelm the system and whether the evidence provided by...
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