Suffolk County Council v Nottinghamshire County Council

Responsibility for special guardianship support depends first on whether the child is looked after. If the child is looked after, the responsible authority is the authority looking after the child. Otherwise, responsibility lies with the authority in whose area the child lives. A residence order or special guardianship order vesting parental responsibility may end the child’s looked-after status. These rules do not prevent local authorities from co-operating, commissioning another authority to perform functions, or making practical arrangements for work and funding. The family court may make the special guardianship order and express views, but cannot direct the performance of Children Act 1989 section 14F duties or order services or financial support.

Nottinghamshire County Council commenced care proceedings concerning two children and arranged their placements with relatives, HB and CY, who lived in Suffolk. The children were placed with HB and CY under interim residence orders, giving them parental responsibility. The authorities disputed which council was responsible for special guardianship assessments, support services and financial assistance.

The county court declared that Suffolk County Council was responsible, while the hearing proceeded on the basis that the court was bound by GC v LD. Suffolk appealed, challenging the legal analysis and the extent of the family court’s power. By the time of the appeal, both authorities accepted that Suffolk was the responsible authority and that it could conduct its own assessment and prepare any necessary plan. The central issues were the allocation of statutory responsibility and the scope for inter-authority arrangements.

1. Appeal allowed. The county court order was set aside, save insofar as case-management directions had already been effected. The case was transferred to the Care Centre at Ipswich County Court.
2. The governing question is whether the child is looked after. Under Children Act 1989 section 22(1), that means being in the care of, or provided with accommodation by, a local authority. Section 105(1) includes a child subject to an interim or final care order. A child may cease to be looked after when parental responsibility is vested in another person, for example by a residence order or special guardianship order.
3. Accordingly, the authority looking after the child is responsible while that status continues. Once the child is no longer looked after, responsibility passes to the authority in whose area the child is living.
4. GC v LD [2009] EWHC 1942 (Fam), reported at [2010] 1 FLR 583, correctly explained the law derived from the statute and authorities. Re D [2012] EWCA (Civ) 627 recognised that the law was settled despite criticisms of its policy and intellectual foundations.
5. The statutory scheme permits and encourages co-operation. Section 14F(8)–(11) and regulation 5 of the Special Guardianship Regulations 2005 allow functions to be carried out through or in conjunction with another authority, including in relation to persons outside its area. The authorities should agree early who will perform the work and fund it.
6. The family court cannot direct how, or in some respects whether, section 14F duties are performed. It has no power under the scheme to order a local authority to provide services or financial support. It may express views which the authorities should seriously consider, and it remains the court that makes the special guardianship order.
7. For CS, Nottinghamshire was responsible while he was accommodated under section 20(1)(c), but responsibility passed to Suffolk when the interim residence order vested parental responsibility in HB and CY. KS was never looked after and responsibility passed to Suffolk when he moved there under an interim residence order. Suffolk was therefore to fulfil the section 14F duties, while Nottinghamshire undertook to support the placement and both authorities were to discuss allocation of work and payment.

• Court of Appeal (Civil Division): allowed the appeal. The county court order was set aside and the case was transferred to the Care Centre at Ipswich County Court. The parties agreed orders recognising Suffolk County Council as the responsible authority.
• Nottingham County Court: HHJ Butler, Q.C., made the order under appeal in proceedings MN10C00081 and OG11C00797, declaring Suffolk responsible for financial assistance and other services. Permission to appeal was granted by Black LJ.