D & Anor v F & Anor

A child may be a looked after child under section 20 of the Children Act 1989 even where the local authority has failed to complete the usual formalities. The question is whether, on the facts, the authority owed and exercised its statutory duty to provide accommodation. A private family arrangement is less likely where the authority plays a major role in deciding where the child will live, fails to explain the legal and financial consequences, or acts amid disagreement between those involved. In such circumstances, the carer may not have given informed consent to a private fostering arrangement.

The applicants cared for three children after their father, the principal carer, died suddenly. The mother retained parental responsibility but had only indirect contact and did not immediately agree to the children living with either applicant. One child lived with the father’s former partner; the other two lived with their paternal aunt.

The applicants sought declarations under the High Court’s inherent jurisdiction that the children were looked after children from the date of their father’s death. The local authority contended that the arrangements were private family or private fostering arrangements. The central issue was whether the authority had accommodated the children under section 20 of the Children Act 1989.

1. Jurisdiction. The court had jurisdiction under its inherent jurisdiction, as subsumed and incorporated into section 19 of the Senior Courts Act 1981, to grant a freestanding declaration concerning the children’s legal status. The jurisdiction was discretionary, and the court applied the principles identified in Salford City Council v W and Others [2021] EWHC 61 (Fam).
2. Statutory duty. The father had been caring for the children and was permanently prevented from providing suitable accommodation and care by his death. The mother was unable to provide good-enough care at that stage. The local authority therefore owed a duty under section 20(1)(c) of the Children Act 1989 from the date of the father’s death.
3. Effect of procedural failures. The absence of the usual section 20 formalities did not prevent the arrangements from being accommodation under section 20. The court relied on the approach in Re B (A Child) (Designated Local Authority) [2020] EWCA Civ 1673.
4. Private arrangement or statutory accommodation. The local authority had taken a central and major role in brokering the children’s living arrangements between the mother and the proposed carers. There was no agreement within the family as to where the children should live. The authority had not made clear that the arrangements were private, that the carers should seek financial support from the parents, or that public funding was discretionary. The carers consequently had not given informed consent to private fostering or private family arrangements. The court applied the guidance in London Borough of Southwark v D [2007] EWCA Civ 182 and the related distinction identified in R (SA) v Kent County Council [2011] EWCA Civ 1303.
5. The local authority had accommodated all three children in exercising its powers and duties under sections 20 and 23 of the Children Act 1989. The declarations were made: A, B and C had been looked after children since their father’s death.

First instance decision. No appellate history was stated in the judgment.