PC, R (On the Application Of) v Hertfordshire County Council

A local authority does not exercise its statutory powers merely by failing to object to a private family arrangement for a child’s care. Whether a child requires accommodation under section 20 of the Children Act 1989, and whether an arrangement is private or made pursuant to statutory duties, depends on the facts and on what the authority actually did. An authority that facilitates a private arrangement must make its nature and financial consequences clear so that the proposed carer can decide on an informed basis. Where the carer voluntarily accepts or continues the arrangement with that knowledge, and without encouragement or facilitation by the authority, the section 20 duty does not arise.

The claimant cared for her grandson, R, after his mother was arrested and later imprisoned. She argued that R was a child in need who required accommodation under section 20 of the Children Act 1989, and that her care amounted to a placement by Hertfordshire County Council under section 23(2). The Council maintained that the arrangement was a private family arrangement and that it had not facilitated it. The central issue was whether it was lawful for the Council to conclude that it did not appear to it that R required accommodation.

1. The application was refused. The court held that the arrangements for R’s care were purely voluntary and had not resulted from the exercise of any statutory power or duty by the Council.
2. Whether a statutory duty under section 20 arose, or whether the arrangement was private, was a question of fact requiring analysis of what the Council actually did. The Council had not encouraged or facilitated the initial arrangement. R’s grandmother voluntarily accepted him on the understanding that the arrangement would be short term, while his mother was expected to obtain bail or be released.
3. The position changed when R’s mother pleaded guilty and was remanded in custody. By then, the grandmother understood that R needed a longer-term home and that the Council would not support her. She nevertheless chose to continue caring for him. A local authority does not exercise its statutory powers by merely failing to object to a private arrangement made with the parent’s approval.
4. The cases of R (D) v Southwark London Borough Council and R (Collins) v Knowsley Metropolitan Borough Council did not require a different result. Those cases involved authority participation or a failure to explain that financial support would not be available. That did not occur here.
5. The Council did not treat the arrangement as a section 23(2) placement and did not attempt to fulfil the obligations under the Fostering Services Regulations 2002. The continuing nature of the alleged breach did not bar the claim for delay, although delay could affect relief. The claim failed on its substance.

The claim was issued on 23 September 2014. Permission to proceed was granted on 19 December 2015. The Administrative Court determined the judicial review claim at first instance.