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It has never been difficult to distinguish between a Scotsman with a grievance and a ray of sunshine

 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]

  1. 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.
  1. 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.
  1. 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.
  1. 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” ]



Designation’s what you need (or how to duck your responsibilities)

A discussion of Derbyshire County Council v HM 2011, and why it is important for Local Authority lawyers.

It is a sad case – a mother of two children went into a coma. Southwark, who were the responsible authority at the time, tried to find family members to look after the children. They were looking at some relatives in America, but as a holding position, the children went to stay with a great-aunt Ms A in Derbyshire.

For one reason or another, the placement in America didn’t pan out, and Ms A kept the children, and subsequently sought a residence order. The mother, by this stage, had sadly passed on.

A section 37 report was directed, and then Southwark and Derbyshire had the time-honoured and traditional bust up about who was responsible.

21. There is no dispute as to the law which I must apply.   Pursuant to section 31(1) of the Children Act 1989, a care order (or an interim care order) must be made in favour of a “designated local authority”.   Section 31(8) deals with the principles to be applied.  The designated authority must be (a) the authority within whose area the child is ordinarily resident; or (b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made. 

22. Following the decision of the Court of Appeal in Northamptonshire CC v Islington LBC [1999] 3 FCR 385, the test under s31(8) is a two stage test.  I must first seek to identify if the children are ordinarily resident in any local authority area and, if so, designate that authority.  If, and only if, I am satisfied that the children are not resident in any local authority area, I must then consider the s31(8)(b) test. 

On that basis, the children hadn’t lived in Southwark for two years, and had lived in Derbyshire for that time. They had ordinary residence in Derbyshire.

But then, the ‘stop the clock provisions’ come into play. If the ordinary residence in Derbyshire came about because Southwark were looking after the children and placed them in Derbyshire, then Southwark would retain responsibility, even though the children were physically in Derbyshire.

And if you’re scratching your head and saying “eh?” that may explain why there’s so much law on this issue.  There are two methods by which the placement with Ms A could have come about.  (a) Southwark were looking after the children under 23 (2) and placed with Ms A, who would be a foster carer  (note, Southwark don’t have to mean to do this, it can come about by them inadvertently doing it)  or (b) Southwark used their duties and powers under s23(6) to find family members who could care for the children and thus avoid them being looked after.

25. The local authority had to discharge its duties in accordance with section 23.  At the time, there were two sections that were relevant.  Section 23(2) provided that “a local authority shall provide accommodation and maintenance for any child they are looking after by (a) placing him…with (i) a family; (ii) a relative of his; or (iii) any suitable person, on such terms as to payment and otherwise as the authority may determine…(f) making such other arrangements as (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State.”  Section 23(6), however, provided that “Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with – …. (b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare.”  

26. It is accepted that the court is bound by a line of authorities culminating in the Court of Appeal decision in R (SA; a child by SH as litigation friend) v Kent County Council [2011] EWCA Civ 1303; The Times 6th November 2011.  Section 23(2) and section 23(6) are two distinct routes by which the local authority can discharge its duties under section 20(1).  The court must determine whether the local authority was exercising its statutory powers under s23(2) or facilitating the making of private arrangements under s23(6).  If Southwark was acting pursuant to s23(6), the children ceased to be looked after children and s105(6) ceased to apply.  If, however, the placement was under s23(2), the children remained looked after by Southwark.

27. The decision is a factual question on the basis of the evidence before the court.  Smith LJ did, however, say in D v LB of Southwark [2007] EWCA Civ 182 at Paragraph 52 that, where a local authority seeks to divest itself of its obligation and requires someone else to do so (by placement under s23(6) rather than under s23(2)), it would need to be very clear that this was its intention

Or in short, the Court looks at whether something that might be a s23(2) or s23(6) placement to see if it looks like a duck and quacks like a duck (a s23(2) foster placement),  and if they are not to conclude that it is a duck, there must be reasons why not and the LA must be really clear and upfront with everyone involed that this WAS NOT A DUCK.

In this case, the Court concluded that Southwark had done enough to show that it had placed under s23(6) and was thus not responsible for the children; even though a lot of the evidence was self-serving  (i.e that it was Southwark saying loudly and often “This isn’t a duck, this isn’t a duck”)  and this is why the case is important – it shows a route map to protect yourself in a Southwark situation

28. Having considered the evidence in this case carefully, I am quite satisfied that Southwark was indeed facilitating the making of private arrangements under s23(6) rather than looking after the children pursuant to s23(2).  I have come to this conclusion for numerous reasons but it is clear to me that any reasonable bystander would undoubtedly have concluded that Southwark was shedding its legal responsibility (Paragraph 59 of D v Southwark).  Other than the original agreement, there is no respect in which it could be said that these were looked after children.  In particular:-

(a) After the placement with the As, Southwark played no role whatsoever in supervising the As or “looking after” the children;

(b) In a handwritten letter, the father authorised Mr and Mrs A to “take decisions relating to (the children’s) urgent medical and health needs and give consent to medical procedures…”;

(c) Southwark paid absolutely nothing to Mr and Mrs A (not even a “kinship allowance”);

(d) When the father approached Southwark on 1st March 2010 and 4th June 2010, Southwark said the children were not an open case;

(e) Southwark’s letter to the father’s solicitor on 31st March 2010, stated that this was a private family arrangement and Southwark had not been providing on-going services/intervention to the family;

(f)  On 26th August 2010, Southwark wrote to Derbyshire legal services stating that “this was a family placement between the respective maternal and paternal families”; although Southwark agreed to undertake an assessment of the father because he was living in its area, the letter is clear that as the children were in Derbyshire’s area, Derbyshire had a duty towards them as children in need;

(g) In Southwark’s letter to the As dated 25th October 2010, Southwark repeats that this was a family arrangement and a private family matter.

29. I accept that the original agreement dated 28th August 2009 imposed obligations on the As but I consider that the factors that I outline in Paragraph 28 above make clear the real nature of the arrangement.  The terms of the agreement reached constituted the arrangements to enable the children to be cared for by the As pursuant to s23(6) rather than for the children to be placed by the Local Authority in accordance with s23(2). 

30. I recognise entirely that some of the evidence relied on by Southwark in support of this conclusion is self-serving.  It could be said that it is not particularly attractive for Southwark to rely on matters such as its own failure to pay allowances.  Nevertheless, this is the factual background and I find it impossible to say that s105(6) is engaged.

So, if you’re in a Southwark situation, you need to shout from the rooftops that this is a s23(6) placement and not a looked after child. Say it loud, say it proud.

If you’re in a Derbyshire position, you’d better shout just as loud that this is a looked after child, so that there’s something to weigh on the other side, and explore with the family exactly what they were told at the time.