Nationwide Association Of Fostering Providers, R (on the application of) v Bristol City Council & Ors

The duty under Children Act 1989, section 22C(5), is to place a looked-after child in the most appropriate type of placement falling within section 22C(6), having regard to the statutory scheme as a whole. It does not require a local authority to contact every potentially suitable provider or to conduct a simultaneous search of all placement options. Alternatively, even if “placement” means the particular placement selected for the child, section 22C(5) imposes an outcome duty rather than a prescribed procedural duty. The authority retains judgment and discretion over the process, subject to the express statutory requirements concerning welfare, consultation, placement characteristics and reasonable practicability.

The claimant association representing independent foster providers sought judicial review of placement policies operated by Bristol, Leeds and Suffolk. It alleged that the defendants breached section 22C(5) of the Children Act 1989 by generally considering independent foster providers only after in-house placements had been considered.

The claimant sought declarations requiring local authorities to consider all potentially appropriate placements. No irrationality or Wednesbury challenge was made. The central issue was whether section 22C(5) required a particular search process, including consideration of every potential foster provider.

1. Standing. The claimant had sufficient interest to pursue the claim. Although its members had commercial interests, they also shared the statutory process’s concern with the welfare of looked-after children. The claim was therefore considered on its merits.
2. Primary construction. Sections 22C(2), (5), (6) and (7) form a coherent scheme. Once arrangements under section 22C(2) are unavailable, the authority must select the most appropriate placement from the four categories defined in section 22C(6). The welfare and needs of the particular child are protected by sections 17 and 22, while section 22C(7) requires preference for kinship fostering and compliance with the statutory placement characteristics. On this construction, section 22C(5) does not prescribe a particular search of providers.
3. Alternative construction. Even if “placement” refers to the particular placement selected for the child, the duty remains an outcome duty. The words “appropriate” and “in their opinion” require evaluative judgment. Neither the Act, the regulations nor the statutory guidance requires simultaneous contact with all potentially appropriate providers. The suggested process would also logically extend to children’s homes and other arrangements, although the claimant did not contend for that result.
4. The claimant’s reliance on section 22G, section 11(2) of the Children Act 2004, statutory guidance, parliamentary materials, Article 3 of the UN Convention on the Rights of the Child and comparative cost evidence did not alter the construction. The policies were not shown to be unlawful, and the claim for judicial review was dismissed.

First-instance judicial review decision. No appellate history is stated in the judgment.