SA, R (on the application of) v Kent County Council

Where a local authority’s duty under Children Act 1989, section 20(1), has arisen, the authority must characterise the arrangement actually made for the child. A placement under section 23(2) provides accommodation and maintenance. The child remains looked after and is entitled to the applicable fostering allowance.

A local authority which takes a central role in arranging care with a relative must make any alleged private arrangement and its financial consequences clear. Uncertainty may support a finding that the authority has made a statutory placement. Binding authority required the court to treat section 23(6) arrangements as a distinct route, notwithstanding the court’s contrary provisional view.

A child in need was moved from her parents’ care to her maternal grandmother after social services initiated, organised and regulated the arrangement. The authority later paid a lower kinship allowance under section 17 of the Children Act 1989, contending that the placement was a private family arrangement.

Black J allowed the child’s judicial-review claim on 7 May 2010. She held that the authority had discharged its section 20(1) duty by placing the child with her grandmother under section 23(2), rather than by making a section 23(6) arrangement. The authority appealed. The issue was whether the child was a looked-after child and therefore entitled to the higher fostering allowance.

1. Appeal dismissed unanimously. Ward LJ, with whom Rimer LJ and Sir Stephen Sedley agreed, held that Black J was entitled to find that the authority had made a section 23(2) placement. The child therefore remained a looked-after child within section 22(1) of the Children Act 1989. The authority was obliged to provide her accommodation and maintenance, including the appropriate fostering allowance.

2. Section 20(1) imposed a mandatory duty to provide accommodation because the child was in need and her parents could not provide suitable care. Under the binding decision in Southwark London Borough Council v D, [2007] EWCA Civ 182, the section 23 powers and duties became available as soon as that duty arose; the child did not first have to be accommodated for 24 hours.

3. The decisive question was the substance of the arrangement. Social services had initiated the discussions, secured the parents’ agreement, transported the child, regulated contact and remained closely involved. They had not explained that the grandmother was entering a private arrangement or that financial help would be only discretionary under section 17. Those facts supported the judge’s conclusion that the authority had placed the child under section 23(2), not merely made section 23(6) arrangements.

4. Ward LJ and Rimer LJ considered that, as a matter of statutory construction, section 23(6) arrangements ought logically to be a means of performing the section 23(2) duty. They were nevertheless bound by In re H (A Child), [2003] EWCA Civ 1629, which held that, once section 23(6) arrangements enabled a child to live with connected relatives, the child ceased to be provided with accommodation. That conclusion was the ratio of In re H and could not be treated as per incuriam merely because the present court considered its construction wrong. Any change was for the Supreme Court.

• Court of Appeal (Civil Division)—the authority’s appeal was dismissed: [2011] EWCA Civ 1303.
• Administrative Court—Black J allowed the child’s judicial-review claim on 7 May 2010, holding that the authority had made a section 23(2) placement and ordering payment of the looked-after-child allowance.