R (on the application of C, a child by his grandfather and litigation friend L) v Buckinghamshire County Council
| Jurisdiction | England & Wales |
| Judge | Andrew Thomas QC |
| Judgment Date | 08 December 2014 |
| Neutral Citation | [2014] EWHC 4072 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/231/2013 |
| Date | 08 December 2014 |
[2014] EWHC 4072 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Thomas QC
(Sitting as Deputy High Court Judge)
Case No: CO/231/2013
Fiona Scolding (instructed by Ridley Hall Solicitors) for the Claimant
Sarah Morgan QC and Matthew Fletcher (instructed by Buckinghamshire County council) for the Defendant
Hearing dates: Tuesday 22 October 2014
This is a claim for judicial review of the defendant's alleged failure and refusal to accept that the Claimant is a looked after child within the meaning of Section 22 of the Children Act 1989. The significance of the dispute is that if the Claimant has that status the Defendant will owe additional and ongoing duties to provide support, advice and assistance. The decision turns on the question of whether the Defendant has provided accommodation to the Claimant pursuant to Section 20 of the Act.
Background
The Claimant is now 14 years old. He has been diagnosed with an autistic spectrum disorder and is subject to a statement of Special Educational Needs. He is currently educated in a specialist unit within a mainstream school. The Claimant and his younger brother now live with their maternal grandparents, Mr and Mrs L. The precise circumstances in which they came to be living with them are largely determinative of this claim.
The Claimant's mother, Ms A, is now in her early 40s. She has also been diagnosed with mental health difficulties of a developmental nature. She is considered a vulnerable adult and has previously received support from community mental health services. Notwithstanding her difficulties, Ms A had progressed well in her earlier life. She worked as an auxiliary hospital nurse for 14 years and eventually married. There were two children of the marriage, the Claimant and his younger brother.
The marriage ended in 2005. At that time the family were living in a different local authority area. There was an involvement with Children's Services in that area in 2004 and 2005, as a result of which C and his brother were placed on the Child Protection Register on grounds of neglect.
Following the divorce, Mr and Mrs L stepped in to help their daughter and their two grandsons. They are both now in their mid 70s and retired from professional occupations. They have selflessly dedicated their retirement years to caring for two younger generations of their family despite a succession of challenges.
Mr and Mrs L initially helped out by finding accommodation. They bought a flat near to their own home in Buckinghamshire, which they then rented out to Ms A. That arrangement brought the family to live close to Mr and Mrs L, enabling them to provide daily, practical support.
Between 2006 and 2008, the Claimant and his younger brother lived with Ms A in the flat. The children's names were removed from the child protection register. However, there were still concerns about Ms A and her vulnerability to violent, sexual and financial exploitation. She entered into relationships with a series of wholly unsuitable partners.
Because of one such relationship there was a referral to the Defendant's Safeguarding of Children team in June 2009. They concluded that the children were not at risk of harm. It was noted during that review that "the children and their mother benefited from a significant amount of emotional and practical support from their grandparents".
A further referral was made in October 2009. Mr and Mrs L's involvement was recorded in an Assessment Report as follows:
"Mr L is a retired professional person who stays at home to help his wife … care for [the children]. [Mother] lives in a flat close by to Mr and Mrs L's home. The boys live with their grandparents five days a week and with their mother at weekends. Given the proximity of the homes and difficulties [mother] has experienced as a parent, this is a very natural arrangement.
Both Mr and Mrs L offer practical and emotional support to [mother] to enable her to continue to play a valuable part in the boy's life. [Mother] holds parental responsibility for [the children]. Mr and Mrs L have been given information about Residence Orders but feel it is not necessary for them to take legal action at this time".
Later on, the assessment concludes as follows:
"… at present there is no role for Buckinghamshire Social Care Children's Services. The children's needs appear well catered for by the maternal family and there is no evidence they are at risk of significant harm. However, I would suggest that if Mr and Mrs L's circumstances change and they are not able to offer the current level of support that they make a referral to Social Care immediately."
It is clear from this document that the local authority were content with the existing arrangements, but there was a concern that that the children might be at risk if left in mother's sole care without support from the grandparents. There is no record of how long the arrangement of staying five days per week persisted.
At the end of December 2009, the children and Ms A came to live with Mr and Mrs L full time. She was having difficulties with a new partner who had moved into her flat. Mr L states that he had moved his daughter and grandchildren to live with him because he was concerned about their welfare. A letter to the housing benefits department dated 20th January 2010 provides contemporaneous evidence that Mr L regarded this as a "temporary measure for their safety". A letter from a manager in the Safeguarding of Children team, undated but sent at the end of January 2010, refers to Mr L's view that he " would not want them to move to foster care". It repeated the advice that Mr and Mrs L should notify Social Care if they had concerns that the children were at risk of harm in their mother's care.
Further developments about four weeks later were described in a letter dated 24th February 2010 from Mr L to the Adult Safeguarding team. Ms A was now dividing her time between living with her partner in her own flat and staying with Mr and Mrs L. The children remained living full time with their grandparents. Mr L expected this to continue "until it is safe for her and the children to move back into her permanent home".
Two weeks after that, at the beginning of March 2010, Ms A moved out of her parents' home altogether. This event was recorded in Mr L's letter to the Safeguarding of Children team dated 9th March 2010. He wrote: "I am afraid that … our daughter has abandoned her children and gone to live with the man described in recent correspondence". He asked for advice, in particular as to whether he and Mrs L should apply for a Residence Order. The reply dated 12th March 2010 advised them to seek advice from a Solicitor.
There was a follow up meeting in which this was discussed further. Mr L's understanding of the discussion was set out in a letter he then wrote to the Adult Safeguarding team concerning support for Ms A. He stated that the manager in the Safeguarding of Children team had advised him that the children will be "taken into care" unless he and his wife applied for a residence order. He said that before they agreed to make an application they needed to be confident that they could cope with the demands and therefore wished to know what help they would be provided in respect of Ms A.
A further Assessment Report was completed on 19th March 2010. This records discussions about Mr and Mrs L's plans to apply for a Residence Order. All parties seemed content that Mr and Mrs L were able to care for the children's needs, but there was some discussion about respite care. The assessment stated that Mr and Mrs L did not want the children "placed in the care of the L.A. at this time".
A letter dated 29th March 2010, a social worker from Safeguarding of Children team wrote to say this:
"May I once again stress that Social Care would be very concerned if the children were to spend any period of time in their mother's sole care without further assessments being undertaken. Therefore may I ask that you make a further referral to Buckinghamshire Social Care should [Ms A's] situation change and she want unsupervised contact with the children."
On 31st March 2010, Mr and Mrs L wrote to the Safeguarding of Children team to say that they had taken advice from a Solicitor about obtaining a Residence Order. They requested support from the Defendant, including financial support, before deciding whether to proceed with the application.
In fact, no such application was made. The children have continued to live with Mr and Mrs L ever since. Ms A has had supervised contact with the children. The Defendant's internal documents show that the Safeguarding of Children team did not regard themselves as having any ongoing involvement.
. This state of affairs continued undisturbed until November 2011, when Mr and Mrs L received correspondence from a solicitor instructed by Ms A. She wished to exercise her right to unsupervised contact. Mr and Mrs L sought advice from the local authority, and a further assessment was made in 2012. The arrangements for the accommodation of the children were described within the Assessment Report as "informal" and "voluntary". This Report also contains Ms A's account of how the children had gone to live with her parents. She explained that the children had been witnessing the difficulties which she had with her...
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