2010 10 Children

Monday 1 November 2010

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Case Law

R (SO) v Barking and Dagenham LBC [2010] EWCA EWCA Civ 1101 (Jacob LJ, Leveson LJ, Tomlinson LJ): "Other assistance" in S23C(4)(c) of the Children Act 1989 includes a power to provide acocmmodation. The local authority was not entitled to take into account the possibility of support from the National Asylum Support Service under the Immigration and Asylum Act 1999 s.95 when considering whether a former relevant child's welfare required them to provide accommodation.

R (on the application of C & Anor) v Nottingham City Council [2010] EWCA Civ 790 CA (Sir Andrew Morritt (Chancellor), Rimer LJ, Jackson LJ): The court dismissed an appeal by two young persons against the refusal of permission to seek judicial review of a local authority's decision not to treat them as "former relevant children" for the purposes of the Children (Leaving Care) (England) Regulations 2001, as the local authority had offered to voluntarily provide all the services available to them under the Regulations in any event and the proceedings therefore served no useful purpose. This outcome arguably has serious implications as it can be seen (wrongly) to be a way in which a local authority can water down their leaving care duties, which as matter of statutory language is mandatory and non-derogable.

R (on the application of PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (Hickinbottom J): A local authority assessing the age of a young asylum seeker was not bound by an age assessment that the First-tier Tribunal (Immigration and Asylum Chamber) had made while hearing the asylum seeker's asylum appeal.

R (A) (No. 1) v Lambeth LBC [2010] EWHC 1652 (Kenneth Parker J): Case involves an 18 year old who had previously been looked after by the local authority. During the course of proceedings, it emerged that his pathway plan review had been conducted by his personal advisor, a person who is employed to act as an intermediary between the young person and social services. The Judge held that such an act was unlawful, stating that while the personal adviser may legitimately take the initiative in relation to a review, this did not mean that the personal advisor may carry out the review. This is the role of a social worker. This reaffirms the position stated in the judgment of Munby J in R (J) v Caerphilly CBC [2005] 2 FLR 860. This is an important judgment marking the High Court’s renewed criticism of a local authority for failing to comply with its duties to care leavers. Young people who have been in the care of a local authority after the age of 16 are entitled to a detailed assessment of their needs, which should be documented in a detailed “Pathway Plan”. This plan sets out who will provide identified support to the young person, where and when. It also sets out contingency plans. The plan remains in force until the young person is 21, or 24 if they remain in education. It must be reviewed at least every 6 months. The purpose of such a plan is to ensure that the young person receives the support and guidance which a parent would want to provide to their child.

R (A) (No. 2) v Lambeth LBC [2010] EWHC 2439 (Admin) (Kenneth Parker J): An oeprational pathway plan for a 'former relevant child', made pursuant to s23C(3), Children Act 1989, must have an adequate level of specificity. It must go beyond a mere statement of the current position and seek to identify what likely future needs are will be and how those needs can, in some detail, be met.

R (Birara) v London Borough of Hounslow [2010] EWHC 2113 (Admin) (Black J): Case regarding a care leaver whose asylum claim had been refused but fresh representations were made. She challenged the decision of the Defendant local authority’s decision to cease to provide her with support and accommodation on the basis that it owed her no leaving care duty once she had attained the age of 21. Over the years when she was being looked after by the local authority, they prepared a number of pathway plans, recording the Claimant’s intention to become a nurse and her desire to pursue that as an educational / vocational path. This was disrupted by her subsequent pregnancy and childbirth. When she expressed the intention thereafter to return to her studies, the local authority informed her that they had not agreed to a programme of education extending beyond her 21st birthday and that because she was not an asylum seeker and therefore excluded from support within Schedule 3 of the Nationality, Immigration and Asylum Act 2000. The judge held that the local authority had erred in concluding that she fell within Schedule 3 as she had put in fresh representations that had not been considered. Whether a local authority should accommodate and support a care leaver post-21 where the care leaver is in education would depend on the contents of the pathway plan. On the facts, the pathway plans had been inadequate in that they failed to set out in sufficient detail the steps the Claimant had to take to qualify as a nurse or to review and evaluate her progress in pursuit of that aim. The necessary steps would take the Claimant beyond 21. As to the local authority’s policy of not supporting post-21 courses which do not amount to higher education save for in exceptional circumstances, the local authority had failed to exercise its discretion and consider whether the circumstances existed in the Claimant’s case.

SA v A Local Authority [2010] EWHC 848 (Admin) (Black J): Local authorities who arranged for children to live with relatives could do so either under the Children Act 1989 s.23(2) or under s.23(6), and whichever route they took depended on the facts of the case. The decision in R (on the application of D) v Southwark LBC (2007) EWCA Civ 182, (2007) 1 FLR 2181, that a duty under s.20(1) of the Act could arise even though the local authority had professed to facilitate a private fostering arrangement, was not restricted to cases in which the child had been placed with a non-relative.

Cases to watch:

In Novmeber 2010, the Court of Appeal is hearing an appeal from the decision of Cranston J in O v East Riding of Yorkshire CC [2010] E.L.R. 318, an important case dealing with the interface of special needs provision and social services provision. The judge held that the local authority had correctly ceased to regard a child as being “looked after” under the Children Act 1989 when he was placed in full-time residential education under his SSEN even though he had been at all material times accommodated by the local authority under s20, Children Act 1989 for the 2 years preceding the change in status. The judge’s reasoning was based on the fact that the residential school could provide for all of the child’s welfare needs and thus he no longer required accommodation and so the local authority was not providing his accommodation in the exercise of social services functions.

The appeal raises the interesting question of when a local authority can bring its duty under s20, Children Act 1989 to an end. Lady Hale in R(G) v Southwark LBC [2009] UKHL 26, [2009] 1 WLR 1299 suggested at paragraph 32 of her speech that this could only be done on the facts of that case (i) if the child is no longer in need; (ii) if the parents are no longer prevented from providing suitable care or accommodation; (iii) if the child, being of competent age (i.e. 16-17 years old), does not want to be so accommodated any more. This suggests that only in circumstances where the criteria under s20 was no longer met can the duty be brought to an end. Moving to a residential school from respite care would arguably be a change in the type of accommodation and not circumstances amounting to an end of s20.

The Court of Appeal is due between November 2010 –January 2011 to hear the appeal against the decision of McCombe J in TG v Lambeth [2010] EWHC 907 (Admin). The judge in the first instance found that a child who was accommodated by a local authority's homeless person’s unit following a report prepared by a social worker for the Youth Offending Team was not a "former relevant child" for the purpose of the Children Act 1989 s23C(1) and not entitled to leaving care support. A child only became a looked after child once accommodated by a local authority in the exercise of its social services functions.

In other matters:

Maltreated Children In The Looked After System: A Comparison Of Outcomes For Those Who Go Home And Those Who Do Not. (Click here) A report published in August 2010, commissioned by the previous government focuseson the consequences of decisions to reunify children who had entered the looked after system for abuse or neglect. It compares the progress and outcomes of a sample of maltreated children who either went home or remained in the looked after system. Some very interesting findings including

  • Maltreated children were less likely than children looked after for other reasons to leave the care system within the study timeframe. Placing children at home whilst the subject of a care order was an important avenue for attempting their reunification, although breakdowns were higher for this group.
  • Outcomes for maltreated children who remained looked after were better than for those who went home with respect to stability and well-being. Those who had experienced one or more breakdowns at home fared worst, but even those children whose reunifications had endured had lower levels of well-being than those who had not gone home. This was especially so for neglected and emotionally abused children.
  • Decisions to reunify maltreated children should be based on careful assessment. Well planned reunifications, based on clear evidence of sustained change in parenting capacity, and provision of support services to assist parents and children were factors associated with stable reunifications over the follow-up period.

This rather calls into question the enthusiasm that some local authorities have in reconciling a child who has run away from home because of abuse with birth families.

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