B (A Child)(Designated Local Authority)

A local authority’s mandatory duty under section 20(1) of the Children Act 1989 arises when a child in need within its area appears to require accommodation for a specified statutory reason. The authority’s inability to find a placement, the child’s brief absence from its area and failures to observe formalities do not prevent the duty arising.

An authority cannot sidestep that duty by facilitating a placement with a relative or describing it as a private family arrangement. A subsequent informal move may remain part of the authority’s accommodation where it retains management of the case and acquiesces in the move. Periods of local-authority accommodation must be disregarded when ordinary residence is determined for designation under a care order.

A care order was made for a 15-year-old girl who had lived with her adoptive father in Lincolnshire before moving to her birth brother in Cheshire East and then to her birth mother in Salford. The Family Court designated Salford City Council under section 31(8) of the Children Act 1989.

Salford appealed, contending that Lincolnshire’s mandatory duty to accommodate the child had arisen when her father became unable to care for her. If the placements with her brother and mother were accommodation provided by Lincolnshire, section 105(6) required those periods to be disregarded when determining ordinary residence. The alternatives were that the placements constituted private family arrangements or private fostering arrangements.

The central issue was when the section 20(1) duty arose and whether the child thereafter remained accommodated by Lincolnshire.

1. Appeal allowed. Lincolnshire was substituted for Salford as the local authority designated in the care order. The periods after the child left her father were accommodation by Lincolnshire and were therefore disregarded under section 105(6) of the Children Act 1989 when applying section 31(8).
2. Section 20(1) imposes a mandatory duty where a child in need within the authority’s area appears to require accommodation because the person caring for the child is prevented from providing suitable accommodation or care. The duty arose by 11 February 2019 at the latest, when the father said that he would not take the child back. The authority’s inability to find a placement, and the child’s brief absence in another county, did not prevent the duty arising. The absence of the usual formalities pointed away from section 20 accommodation but was not determinative.
3. The placement with the birth brother was unequivocally accommodation under section 20(1). Lincolnshire could not sidestep its existing duty by facilitating a placement with a family member. The fact that the father first contacted the brother made no difference. Local authorities ordinarily consider friends and relatives as possible carers, and section 22 requires preference to be given to such placements in the circumstances specified there.
4. The subsequent move to the birth mother continued the section 20 accommodation. Lincolnshire had retained active management while the child lived with her brother. It learned immediately of the proposed move, notified the other authorities, requested a welfare visit and acquiesced in the placement. Its failure to intervene did not cause the child to cease being accommodated.
5. The placements could not together be justified as private family arrangements. Although the father could delegate the exercise of parental responsibility to the brother, that delegation did not authorise the brother to arrange the child’s onward move, and the father neither knew of nor consented to that move.
6. The placement with the birth mother was not private fostering. She was disqualified by regulation 3 of the Disqualification from Caring for Children (England) Regulations 2002. Without disclosure and the local authority’s written consent under section 68(1), a disqualified person who would commit an offence by fostering could not be a private foster carer.

• Court of Appeal (Civil Division): The appeal was allowed in [2020] EWCA Civ 1673. Lincolnshire was substituted for Salford as the authority designated in the care order.
• Family Court sitting in Manchester: HHJ Jordan made a care order on 20 February 2020 and designated Salford City Council. The judge held that the moves to the birth brother and birth mother were private arrangements rather than section 20 placements.