KS v The City of Bradford Metropolitan District Council

Whether a child is looked after depends on the local authority’s statutory duties and its actual conduct, not on informal labels or the absence of internal procedures. The court must first ask whether the authority considered, or ought to have considered, that a child in need required accommodation under Children Act 1989, section 20. It must then characterise what the authority actually did. A placement arranged and managed by the authority may constitute a placement under section 23(2), rather than an arrangement under section 23(6), even where the parents consent and the child lives with a relative. The authority’s role in removing the child, arranging the placement and managing it is material.

This was a judicial review of the defendant local authority’s decision that KS was not a looked after child. In October 2004, following serious concerns about alcohol misuse, domestic violence, neglect and the children’s living conditions, social workers decided that KS and her siblings could not remain in the parental home. KS was placed with her maternal grandmother, DCGM, with the parents’ consent. The authority continued to supervise the placement through visits, child protection procedures and consideration of KS’s longer-term care.

The central issue was whether the placement was a private family arrangement, an arrangement under section 23(6) of the Children Act 1989, or a placement by the authority under section 23(2), with the consequence that KS was looked after.

1. Decision. The local authority’s decision was quashed. It was declared that KS had been a looked after child from 28 October 2004. The authority was ordered to pay an appropriate allowance calculated from three months before the application, together with the claimant’s costs.
2. The court adopted the two-stage analysis described by Black J in SA-v-KCC (Child in Need) [2010] EWHC 848. First, the court asks whether the authority considered that a child in need required accommodation because of one of the prescribed circumstances, so that a duty arose under section 20. Secondly, it characterises the authority’s action: the child may have been placed under section 23(2), or the authority may merely have made arrangements under section 23(6).
3. KS was a child in need who required accommodation because of a prescribed circumstance. The authority was the prime mover in removing the children from the parental home. It had decided that they could not remain there and then sought a suitable relative before using stranger foster care. The parents’ consent did not convert the resulting placement into a private arrangement.
4. The authority’s subsequent conduct confirmed that it had placed KS with DCGM. It managed the placement, organised statutory meetings and parental contact, assessed whether KS could return to her mother, and considered DCGM’s suitability as a long-term carer. The absence of a formal decision or discussion about legal status did not determine the issue. Such discussion was necessary so that the child’s carer could understand the arrangement and the support available.
5. The placement was therefore best characterised as one made by the authority under section 23(2), rather than an arrangement enabling KS to live with a relative under section 23(6).