London Borough of Southwark v D

A local authority may help to make a private fostering arrangement before its duty to accommodate arises. It must make the private character of the arrangement and the proposed foster carer’s financial responsibility clear. Extensive intervention without that explanation may show that the authority was instead acting under its statutory powers.

A child is looked after as soon as the conditions for the accommodation duty under section 20(1) of the Children Act 1989 arise and it appears that accommodation will be needed for more than 24 hours. The authority may then use either route in section 23 immediately. It cannot rely on section 23(6) where the carer was not properly informed that she would assume financial responsibility.

S, a child in need, could not safely remain with her father. Southwark arranged for her to live with ED, who had previously cared for her. The authority did not explain that the arrangement was private or that ED would be financially responsible. ED later received only limited payments and sought judicial review.

The Administrative Court held that S had been looked after by Southwark under sections 20 and 23 of the Children Act 1989, and that Southwark had to maintain her. Southwark appealed. It contended that no section 20 duty arose, alternatively that it had discharged the duty by arranging for S to live with ED under section 23(6), and that the judicial-review claim was late.

1. Appeal dismissed. The judge was entitled to extend time. The statutory complaints procedure had to conclude before time began to run. ED then acted with reasonable promptness, Southwark had sought time to consider settlement, and no prejudice was alleged.
2. Southwark was under an immediate duty under section 20(1) of the Children Act 1989 to provide accommodation. S was a child in need and her father was prevented, for the foreseeable future, from caring for her. The availability of ED as a potential carer did not mean that S did not require accommodation.
3. A private fostering arrangement can sometimes be made with local-authority assistance, even without direct dealings between the parent and proposed foster carer. Whether that has occurred is a question of fact. Where an authority takes a major role, it is more likely to be acting under sections 20 and 23. It must clearly explain the private nature of the arrangement and that financial support must be sought from the parents or, in the foster carer’s area, through discretionary assistance.
4. The judge erred in holding that section 23(6) could not operate until accommodation had actually been provided for 24 hours. Sections 23(2) and 23(6) have the same precondition. A child is looked after when it appears that accommodation will be required for more than 24 hours, so either route is immediately available.
5. On the facts, however, Southwark had not made a section 23(6) arrangement. It had not told ED that she would bear full financial responsibility and instead implied that financial arrangements would be made by social services. The only reasonable inference was that ED accommodated S on Southwark’s behalf and at its expense under section 23(2). The declaration that Southwark had looked after and had to maintain S was therefore upheld.

• Court of Appeal (Civil Division): dismissed Southwark’s appeal and upheld the declaration that S had been looked after by Southwark: [2007] EWCA Civ 182.
• High Court, Administrative Court (Lloyd Jones J): on 22 June 2006 allowed ED’s judicial-review claim, declared that Southwark had looked after S, and held that it was obliged to maintain her.