Redcar and Cleveland Borough Council v Others (Re B)

Jurisdiction cannot be conferred on a court by the parties’ agreement. A dispute over a local authority’s refusal to pay a fostering allowance on the ground that a child is not looked after should ordinarily be brought in the Administrative Court by judicial review. Any alternative claim for declaratory relief must also be commenced in, or properly transferred to, a court possessing jurisdiction.

A residence order made in favour of a person providing accommodation is inconsistent with the child continuing to be accommodated by the local authority. The order confers parental responsibility and, as persuasive guidance, brings any looked-after status based on local-authority accommodation to an immediate end.

A child lived with her paternal grandparents under an interim residence order made during care proceedings. The grandparents claimed a fostering allowance on the basis that the child was looked after by the local authority within section 22(1) of the Children Act 1989.

A district judge held that the child was looked after. His Honour Judge Taylor dismissed the local authority’s first appeal. On the authority’s second appeal, it emerged that neither court had jurisdiction within the care and residence proceedings to determine the funding dispute. The Court of Appeal therefore had to decide the jurisdictional consequence and considered, without determining, whether the child would otherwise have qualified as looked after.

1. The appeal was allowed and the district judge’s decision was quashed for want of jurisdiction. Neither the care proceedings nor the residence proceedings conferred jurisdiction to determine whether the local authority owed the grandparents a fostering allowance. The parties’ agreement could not confer jurisdiction. The proper course was a judicial review challenge in the Administrative Court. A possible alternative, on which the court heard no argument, was an application to the High Court under its inherent jurisdiction for a declaration.

2. Family proceedings must retain sufficient procedural formality. Where a circuit judge is to act as a High Court judge, that arrangement should be made deliberately and the proceedings should be commenced in, or transferred to, the High Court. A judge’s personal authorisation to sit in the High Court does not necessarily cure a failure to invoke the correct jurisdiction.

3. The Court of Appeal could and had to quash the unauthorised determination, but it could not determine the underlying funding dispute. Black LJ’s observations on that dispute, with which Leveson and Richards LJJ agreed, therefore indicated only how the court would have been inclined to decide it.

4. On that provisional analysis, the parents’ continuing objection engaged section 20(7) of the Children Act 1989. Their ability to provide accommodation was appropriately addressed through care proceedings. In any event, they were willing and able to arrange accommodation with the grandparents. Whether section 20(7) prevented a section 20(1) duty from arising or prevented its fulfilment, the local authority could not have provided the child with accommodation under section 20.

5. The child therefore would not have fallen within section 22(1)(b). Alternatively, any provision of accommodation would have ended immediately upon the residence order. Under section 12(2), that order conferred parental responsibility on the grandparents. Their court-approved provision of accommodation was inconsistent with a continuing section 20 duty. The automatic discharge of a care order under section 91(1) when a residence order is made supported the same conclusion. GC v LD & Ors [2010] 1 FLR 583 was followed in this provisional analysis.

1. Court of Appeal (Civil Division): Allowed the local authority’s second appeal and quashed the district judge’s determination for want of jurisdiction: [2013] EWCA Civ 964.

2. Middlesbrough County Court, His Honour Judge Taylor: Dismissed the local authority’s appeal on 26 February 2013 and agreed that the child was looked after.

3. Middlesbrough County Court, District Judge Robertson: Determined on 1 November 2012 that the child was looked after, although the care and residence proceedings did not confer jurisdiction to decide that issue.