When families with children face difficulties, social workers will support and encourage the parents, with the aim of maintaining existing arrangements as long as that does not involve unacceptable risks to the children. However, there can come a time when mental health issues, tension between the parents, drugs, alcoholism, or any number of other factors can lead to the children needing “time out” of the parental home, with the children living with relatives – often grandparents or a sibling of the parents.
Those arrangements may last longer than originally anticipated, and can develop into “Special Guardianship arrangements”, where the Family Court places the children with their relatives on a long-term basis. But a persistent and difficult problem for local authorities is distinguishing between situations where relatives are entitled to be paid for providing accommodation and support to the children, and situations where this is a private family arrangement which does not result in any obligation on the local authority to provide funding.
This can also be important because the child or children may become ordinarily resident in the area of the relative’s local authority. In that situation, responsibility for matters such as child protection and taking any necessary public law children proceedings may fall to that local authority.
The recent judgments
The Court of Appeal and the High Court have recently re-visited these issues in three cases, namely Re B (A Child)(Designated Local Authority)  EWCA Civ 1673, Salford CC v W & Ors (Religion and Declaration of Looked After Status)  EWHC 61 (Fam) and Salford City Council v W & Ors  EWHC 1689 (Fam).
In summary, the outcome of these cases is that a local authority will, at a particular point in time, come under a legal duty to provide accommodation to a child if the conditions in s20(1) of the Children Act 1989 (“CA”) are satisfied. However, if the conditions in s20(1) are satisfied, family carers who provide accommodation for the children will be acting on behalf of the local authority, and will thus be entitled to payment for fulfilling the local authority’s duty.
The conditions in s20(1) are as follows:
- The child is a “child in need”, applying the tests in s17(10) CA.
- The child is in the relevant local authority’s area.
- The child appears to the local authority to require accommodation as a result of:
- there being no person who has parental responsibility for him;
- his being lost or having been abandoned; or
- 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.
A child becomes a ‘looked after child’ as soon as the s20(1) duty arises, whether or not the local authority is actually providing accommodation to the child or not: see Re B (A Child)(Designated Local Authority) at §61.
The decisions emphasise that the point in time when a local authority comes under a legal duty to provide accommodation to a child under s20(1) depends on when the child “appears” to the local authority to require accommodation. However, a local authority cannot take advantage of its own failure to appreciate that this conclusion should have been reached. Hence, in practice, if it ought to have appeared to the local authority that a child in need required accommodation, the local authority will have the duty to provide accommodation to the child.
In advance of the duty crystallising, a local authority will be held to have “placed” a child with relatives if the local authority plays a major role in arranging for the child to be placed with relatives under an informal fostering arrangement: London Borough of Southwark v D  EWCA Civ 182, at §49. If the initiative to move the children to their relatives comes from the parents, but the local authority becomes involved but wishes to avoid placing the child with their relatives, the local authority social workers should make it clear that the local authority social workers are not acting as “decision makers” and that the local authority was simply being informed of decisions made within the family and made by the parents in exercise of their parental responsibilities, not by social workers on behalf of the local authority. Thus the nature of the arrangements should be plain to those involved, namely that these are “family arrangements” and will not involve any payments by the local authority to those caring for the children: LB Southwark, at §49.
In Salford CC v W & Ors (Religion and Declaration of Looked After Status)  EWHC 61 (Fam), McDonald J decided that, where public law children proceedings were before the High Court, the court was entitled to decide if a child is or is not a “looked after child”. The Judge decided that whether a child is a “looked after child” depended on a close examination of the factual circumstances leading to the child moving from the parental home to live with relatives, and the degree of the local authority’s involvement in that decision making process.
Local authorities and those acting for children and carers can be stuck between a rock and a hard place in these cases, because social workers may feel that a move to a relative is a good idea, but the more the social worker becomes involves, the more likely it is that this involvement will result in an unplanned liability to fund the cost of the new accommodation. The Courts have advised that local authorities should take a practical, “swings and roundabouts” approach to these kinds of questions: but when disputes do arise, local authorities may still wish to seek legal advice as to which side of the line they fall on on the facts of an individual case.
David Lock QC is a specialist practitioner in this area. He has advised NHS bodies for 20 years, is one of the authors of NHS Law and Practice with Hannah Gibbs and is a visiting professor in practice at the London School of Economics.
Alex Shattock is a barrister specialising in public law.
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