R Sa (a child by her Litigation Friend SH) v Kent County Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Rimer,Sir Stephen Sedley
Judgment Date10 November 2011
Neutral Citation[2011] EWCA Civ 1303
Date10 November 2011
Docket NumberCase No: C1/2010/1303

[2011] EWCA Civ 1303

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MRS JUSTICE BLACK

5478/2009

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Rimer

and

Sir Stephen Sedley

Case No: C1/2010/1303

Between:
The Queen on the application of Sa (a child by her Litigation Friend SH)
Respondent
and
Kent County Council
Appellant

Mr Nicholas O'Brien (instructed by Kent County Council) for the appellant

Mr Patrick Roche (instructed by Ridley & Hall Solicitors) for the respondent

Mr Steven Kovats QC (instructed by Treasury Solicitor) for the Secretary of State for Education

Hearing date: 18th May 2011

Lord Justice Ward

The issue at the heart of this appeal

1

It is, inevitably, money. Making financial provision for children being looked after by local authorities under the Children Act 1989 (the Act) is expensive. Not surprisingly, local authorities are keen to trim their obligations to the minimum possible. According to statistics produced by the Department of Education 64,400 children were being looked after by local authorities in England as at 31st March 2010. 38,200 of those were subject to interim or full care orders, 4,600 were freed or placed for adoption and 21,200 were voluntary placements under section 20 of the Act. 5,200 children were in foster placements with a relative or friend. The legal issue in this appeal, to state it broadly, is whether the claimant, A, is a child being looked after the local authority as that phrase is defined in section 22 of the Act. In the more precise terms posed by the local authority in its skeleton argument, it is "whether, as a matter of law, a child who is not the subject of an interim care order can be a looked after child where she goes to live with a relative in circumstances where the local authority is involved in setting up and funding the arrangement." If A is "a looked after child", she (or her maternal grandmother with whom she is placed) would be entitled to a fostering allowance of £146 per week. The local authority contend that they are acting lawfully in paying her (or her grandmother) a kinship allowance of only £63 per week pursuant to section 17 of the Act on the basis that she is living with her grandmother under a private family arrangement.

2

On 7th May 2010 Black J. (as she then was) upheld the claimant's claim that the local authority were acting unlawfully and ordered that they pay her the appropriate weekly allowance for a looked after child. She granted permission for this appeal, saying:

"… this is undoubtedly a difficult area of the law with many uncertainties and, in my view, would benefit from consideration by the Court of Appeal."

The matter is seen by the Secretary of State for Education, who has ministerial responsibility for the legislation in question, the Children Act 1989, to be important enough to intervene in this Court.

The background

3

A was born in April 1995. Her parents never married. They were not good parents. In September 2003 a probation officer preparing a report for the court following her mother's conviction for shoplifting referred A's plight to the Social Services Department of the local authority because of concern that her mother was a manic depressive and that the relationship between her mother and her father was characterised by regular incidents of severe domestic violence. Because the parents were then separated (albeit not for long) and because her mother was receiving medical attention, no intervention was then made by the local authority. However, in October 2004 A's school referred her to the Social Services Department because at times she was not being collected from school and had to be cared for by a neighbour overnight. She was inappropriately dressed. It was decided to carry out a core assessment. When this assessment began in 2004 the parents had again separated and A was then living with her father and his partner. At the time mother had no money either to feed A or to provide a home for her. On 14th December 2004 the Social Services Department made contact with Mrs SH, A's maternal grandmother, and a few days later met with her. As Black J. found, the social worker asked SH in general terms whether she would be prepared to look after A and grandmother responded that she would want to be considered as a carer for A if she were to be taken away from her mother. In the days that followed the social worker had meetings with both parents about grandmother caring for A. Father was agreeable. At first mother objected but later wrote on 17th December 2004 informing the local authority that she had spoken to the grandmother who was fully prepared to look after A. Grandmother clearly felt she had to make an immediate decision and that if she did not offer to care for A, she risked losing her. The social worker confirmed the arrangement for A to go to grandmother in telephone discussions with the mother, father and grandmother.

4

Thus an agreement, written on the local authority's headed paper, was signed on 17th December 2004 by mother, father and grandmother and the social worker setting out that A would reside with grandmother until the core assessment was completed and the outcome discussed. Contact was regulated and in mother's case was to be supervised. The grandmother was required to agree that she would adhere strictly to the contact arrangements set out and that she would contact social services if she had any further concerns. The social workers took A to grandmother after school on 17th December 2004.

5

The judge made these findings:

"GM [the grandmother] says that she did not initiate any conversations with LA [the Local Authority] before A came to live with her; all discussions were initiated by social services. The impression given by [the social worker's] statement, in paragraph 5, that it was a telephone call from GM on 4 December 2004 that began the process which ultimately culminated in A coming to live with her is a wrong impression and arises from the omission from the statement of the fact, clearly recorded in the running records, that GM's telephone call was in response to a message left for her by social services. There is no doubt, in the light of this, that it was social services who first approached GM about A. The records make quite clear that from this point on, the social worker was centrally involved in sorting out what arrangements should be made for A, whose situation LA had rightly recognised as damaging and untenable.

59. GM says, furthermore, that the arrangement for A to live with her resulted from her discussions with the social worker and not by virtue of any discussions with M. The only indication to the contrary is the reference in M's letter of 17 December to having spoken with her mother. By this point, however, M had already been approached by the social worker to agree to A going to live with GM. She had refused this option on 15 December. Given that that was her position on 15 December and given the context described in the letter, it is obvious that any conversation M had with GM could only have taken place some time after LA opened the discussions with GM that led ultimately to A going to live with her. It would be wrong, therefore, to class any such discussion between M and GM (if indeed it took place) as in any way the origin of the arrangement.

60. GM says that she was left in no doubt in December 2004 that LA were in control of the placement. The degree and nature of LA's involvement in the situation, as revealed by the contemporaneous documentation, is consistent with this. GM says that nothing was said to her during any of her conversations that month to suggest that it was a private arrangement and it is not asserted on behalf of LA that either the nature of the placement or the question of financial support were ever addressed explicitly with her by social services. GM says that if it had been suggested to her that it was a private arrangement, she would have asked how she was to keep A. She knew neither of A's parents were in a position to offer assistance and she expected financial and practical support from LA.

61. By January 2005, GM was indicating that she would not be able to look after A on a long term basis. There seem to have been a number of factors contributing to this including work pressures, her age, and A's behaviour. At an early stage, the social worker offered a package of practical assistance but GM did not feel it sufficient to address the problems she had, even though it is recorded that she was aware that it could well mean foster care for A if she was unable to care for her. LA were exploring the options for A, including the possibility that she might live with F, but he was facing criminal proceedings and ultimately went to prison. They plainly saw foster care as a real possibility and it was the recommendation of the core assessment that a foster placement should be identified.

62. The social worker's significant involvement in day to day arrangements for A appears clearly from the records.

63. One of the things GM said to the social worker on 11 March was that she was struggling financially. This seems to be the first financial discussion going beyond the general expression of financial anxiety on the part of GM. By May 2005, LA had arranged a kinship payment for GM of approximately £63 per week but GM had been told that this was significantly less than she ought to be receiving, as she told the social worker. LA were still considerably involved in A's life at this point. The records show that they were exercised by the...

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    ...has brought against HCC”. We have no further details. 17 He also referred, to similar effect, to R (SA) v Kent County Council [2011] EWCA Civ 1303. 18 Most of the provisions in question are identified in para. 129 of the judgment of this Court in Gilham v Ministry of Justice [2017] EWCA C......
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    ...are still offered the protection of a ‘looked after’ status, confirming the Court of Appeal's approach in R(SA) v Kent County Council [2011] EWCA Civ 1303, where a child living with a grandparent in an arrangement initiated by the authority, was a looked after child and, as such, the grand......
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