SA v KCC

Whether a child is looked after depends on the substance of the local authority’s actions, not the label attached to them. Where the statutory conditions in section 20(1) are met, a local authority must determine whether accommodation was provided under section 23(2) or whether a private or section 23(6) arrangement was made. The fact that the carer is a relative does not create a rule that the child cannot be looked after without a care order. The assessment remains fact-specific. Relevant considerations include the authority’s role in initiating and controlling the placement, the extent of its involvement, and whether the proposed carer was clearly informed about financial responsibility and the legal nature of the arrangement. Continuing unlawful treatment may justify relief despite delay, although retrospective financial relief may be limited to avoid prejudice caused by unexplained delay.

The claimant, a child, had lived with her maternal grandmother after concerns about her parents’ ability to provide suitable care. The local authority treated her as a child in need and provided services under section 17 of the Children Act 1989, including a lower discretionary payment. The claimant argued that the authority had provided her accommodation under sections 20 and 23 and that she was therefore a looked after child. The authority argued that the family had made a private arrangement, or alternatively that any statutory duty had been discharged under section 23(6). It also argued that the claim should be pursued through its complaints procedure and was defeated by delay. The central issues were the correct characterisation of the placement and the appropriate relief.

1. Status and statutory framework. The claimant was not in the local authority’s care because there was no care order. The issue was therefore whether accommodation had been provided by the authority under section 22(1)(b) of the Children Act 1989. The court applied the established two-stage analysis: first, whether a duty arose under section 20(1); and secondly, whether the authority acted under section 23(2) or made arrangements under section 23(6).
2. Fact-specific characterisation. The approach in London Borough of Southwark v D [2007] EWCA Civ 182 was applicable whether the proposed carer was a relative or not. A family relationship was relevant evidence, but did not establish a presumption that the placement was under section 23(6). The court rejected the submission that, absent a care order, a child placed with a relative could never be accommodated under section 23(2).
3. Application. The authority had initiated the arrangement, played a central role in securing it, regulated contact, monitored the placement and remained substantially involved in day-to-day matters. It had not made clear to the grandmother that the arrangement was private or that she would have to rely on the parents, or on discretionary section 17 assistance, for financial support. She therefore could not give informed consent to a private arrangement. The authority had been unable to side-step its section 20(1) duty and had discharged it by a placement under section 23(2).
4. Other arguments. Re H (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629 did not require a different result. It was properly understood as dealing with a placement which had in fact taken place under section 23(6), rather than dictating that every placement with a relative must be under that provision. The court’s doubts about the structure of section 23, previously expressed in GC v LD & Others [2009] EWHC 1942 (Fam), did not need to be resolved because the outcome was the same under either analysis.
5. Relief. Judicial review was appropriate because the authority’s legal arguments raised issues of statutory construction. The decision was continuing, so relief was not refused entirely for delay. However, the unexplained delay caused financial prejudice to the authority. A declaration was granted that the claimant was, and had been while living with her grandmother, a looked after child. The appropriate allowance was backdated only to 2 March 2009, three months before the proceedings were issued.