From the always smashing P G Wodehouse, and apologies to any Scottish readers, it is not intended to be a slight on your great nation, without whose many fine citizens I would be still walking on cobbles rather than driving on tarmac and would be without tea, trains, shortbread, Irn-Bru, golf and television, some of the worlds finest ever creations; which make our own English contributions of warm beer, morris dancing, queueing and committees seem somewhat shabby in comparison. [Hopefully war between Suesspicious Minds and the fine fine people of Scotland has now been averted]
The title is more of a lead-in to the fact that you can always, as a family lawyer, tell when two local authority lawyers are attending court on the same case, representing two different local authorities.
They don’t like being in competition with one another, you see. When you represent a local authority, you normally sit at one distinct end of the Court room, and you do all the introductions and niceties and open the case, and when there are two of you, it just doesn’t feel right. It is like being on the flight deck of a 747 as two men in hats simultaneously try to say “Bing bong, this is your captain speaking”
Being in the same Court room not only as another Local Authority lawyer, but one whose entire motivation and plan for the day involves leaving Court with one hot potato having been moved from their own authority to your own, tends to make for a rather tense and strained atmosphere.
It is rather like watching Lee Van Cleef and Clint Eastwood size each other up from opposite sides of the street, whilst noting that the clock is about to strike high noon.
So, just as the title suggests, it is never difficult to distinguish between two local authority lawyers about to have a designated authority row, and a pair of happy sunbeams.
Most of the really good knock-down rows I have had in Courts have been with other local authorities, rather than against other parties. And they are nearly always on the subject of designated authority.
The Court of Appeal dealt with this in RE Suffolk County Council and Nottinghamshire County Council 2012
I will firstly declare a tiny interest, since the Judge at first instance was Her Honour Judge Butler QC, who was enormously kind to me in my early days and is probably largely responsible for every shred of good qualities that I have as a lawyer and cannot be blamed for any of the bad ones. So it pains me to see her being appealed, even more so to be successfully appealed.
Anyway, this case relates to Special Guardianship Orders, and the vexed problem of who picks up the responsibility and tab, after the case is ended.
In an ideal world, everyone involved stays put and lives in the same Local Authority throughout, and the applicant Local Authority swallow the SGO and the ongoing support package.
But, where the recipient of the SGO lives somewhere else, than the issue arises as to whether Local Authority A (who started the case) or Local Authority B (who happen to be where the carer lives) get the order.
The law, as so often, tries to be helpful, but just promotes more litigation.
In short, it says “The LA who is responsible for the SGO and provision of support is the one where the carer resides UNLESS the child was being looked after just before the SGO was made”
Sadly, that just opens up our traditional can of worms, as we all know that the world of whether a relative is caring for the child ON BEHALF of the LA (making the child looked after) or ON BEHALF of the family (making the child not looked after) is just as vexed.
Thankfully here, the two local authorities took the unusual and giddy step of actually talking with one another, with a view to sorting this out, and were therefore able at the Court of Appeal hearing to have a joint and coherent plan for delivering services to the family. The Court of Appeal missed a trick here in not summoning the Prime Minster to Court to alert him of this and inviting him to strike up some new sort of medals for valour for those members of the Local Authorities who had first dared to suggest this novel and dangerous approach.
But some useful footnotes were given by the Court of Appeal. And some of their observations are distinctly useful to Local Authority lawyers. [Underlining of those is mine]
- FINAL OBSERVATIONS
- As has already been intimated, out of area placements in prospective special guardianship cases may very well become much more common. A number of matters have arisen in this case which may well arise elsewhere. A few reflections may therefore not be out of place. It was for this reason that we decided to put our judgment in writing.
- The law both prescribes the incidence of responsibility and provides for a high degree of flexibility. If a child is a looked after child then responsibility lies with that authority; if not, it lies with the authority in whose area the child resides. It is therefore of critical importance when a child is placed out of area to have regard as to whether a child should or will remain looked after (i.e. under an interim care order or accommodated) or not (i.e. under a residence order). At the same time the local authorities involved should co-operate from the earliest stage in deciding who will in fact execute the statutory duties that arise and who will fund that work. Local authorities have powers to make sensible arrangements between themselves wherever primary legal responsibility may in fact lie.
- The role of the court should also be carefully considered. Section 14F imposes duties on a local authority but it does not empower the family court to direct how or (in some aspects) even whether such duties are to be performed. Moreover the statute gives the court no power to make directions as to payment of money or provision of services. Of course judges may properly express views to local authorities and are entitled no doubt to expect that they will receive serious consideration (just as judges can and do express views about adoption and care plans) and of course it is only the judge who in the end can make the special guardianship order.
- Special guardianship is potentially a very effective way of securing kinship care without on the one hand distorting family structures by adoption and without on the other leaving the child as a child in care with all the consequences so often resented by a growing child who feels stigmatised. It is essential both that local authorities in ‘out of area’ placements should co-operate with each other as early in the process as is practicable in the particular case and also that the court is clear about its role and powers. They may not be as extensive as is thought or as a judge may wish but I have no reason to think that the judge cannot make a valuable contribution to the process as is often done in both adoption and care cases where the court has the confidence of the parties involved.
This is the judgment of the Court.
[My other particular favourite P G Wodehouse quote, and one that I am afraid I have used from time to time is “Mistaking it for a peach, Bingo Little had picked a lemon in the garden of love” ]