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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.