Neutral Citation Number: [2008] EWHC 2551 (Admin)
Case No CO/7525/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London WC2A 2LL
 Date : 29 October 2008
Before: Mr Michael Supperstone Q.C.
(Sitting as a Deputy High Court Judge)
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BETWEEN:

SARAH JANE COLLINS
By her Litigation Friend Mrs Dorothy  Leyden
Claimant

-and-

KNOWSLEY METROPOLITAN BOROUGH COUNCIL
 Defendant
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(Transcript of the Handed Down Judgment of
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Mrs Dorothy Leyden	 for the Claimant

Stephen  Cragg instructed by Julia Nicholson, Knowsley Metropolitan Borough Council, for the Defendant

Hearing: 11 September 2008
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Judgment

The Deputy Judge:
Introduction
1.	This is a challenge brought by Sarah Jane Collins, the Claimant, by Mrs Dorothy  Leyden, her Litigation Friend, against Knowsley Metropolitan Borough Council, the Defendant, in relation to a decision set out in a letter dated 16 May 2007 that the Claimant was not a "looked after child".  

2.	The issue in this case is whether the Claimant became a "looked after child" as defined in Section 22(1) of the Children Act 1989 ("the 1989 Act"). 

3.	The Claimant's date of birth is 7 February 1989.  If the Claimant was a "looked after child" the Defendant would have had to pay a fostering allowance to Mrs Leyden in respect of her care.  In addition the Defendant has a range of statutory duties towards a "looked after child".  Further if the Claimant was a "looked after child" then the Defendant would also have duties to provide some support to her after she reached the age of 18, pursuant to the "leaving care" provisions included in Part III of the 1989 Act. 

The Statutory Framework
4.	Under the 1989 Act local authorities have a wide range of powers and duties in respect of children within their areas.  These include, in Part III, powers and duties in respect of children "in need". There is a general power, pursuant to Section 17, to provide assistance, including financial assistance, for children and their families and also a positive duty, pursuant to Section 20, to provide accommodation and financial support in respect of some children who appear to be in need of accommodation. Part IX of the 1989 Act imposes upon local authorities responsibilities of a supervisory nature in respect of children who are being cared for under private fostering arrangements.  

5.	Section 17(1) provides:

"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-

(a)	to safeguard and promote the welfare of children within their area who are in need; and 
(b)	so far as is consistent with that duty to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs."

6.	Section 17(6) states:

"The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash".

7.	Section 20 provides:

"(1)	Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

(a)	there being no person who has parental responsibility for him;
(b)	his being lost or having been abandoned; or
(c)	the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
…
(4)	A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
…
(6)	Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare – 

(a)	ascertain the child's wishes regarding the provision of accommodation; and
(b)	give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.

(7)	A local authority may not provide accommodation under this section for any child if any person who –

(a)	has parental responsibility for him; and
(b)	is willing and able to –
(i)	provide accommodation for him; or
(ii)	arrange for accommodation to be provided for him, 
objects."

8.	Section 22 makes provision for the duties of a local authority in relation to children looked after by them.  

"(1)	In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is –

(a)	in their care; or 
(b)	provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [are social service functions within the meaning of] the Local Authority Social Services Act 1970 [apart from functions under section [17], 23B and 24B]."

9.	Sections 22(4) and (5) provide that, before making any decision with respect to a child whom they are looking after, the local authority shall so far as reasonably practicable ascertain and take into account the wishes and feelings of various persons, including the child himself, the child's parents and any person with parental responsibilities.  

10.	Section 23 deals with the provision of accommodation and maintenance by local authorities for children whom they are looking after.  

"(1)	It shall be the duty of any local authority looking after a child – 

(a)	when he is in their care, to provide accommodation for him; and
(b)	to maintain him in other respects apart from providing accommodation for him.

(2)	A local authority shall provide accommodation and maintenance for any child whom they are looking after by 
…
(a)	placing him subject to sub-section (5) and any regulations made by the Secretary of State with – 
(i)	a family;
(ii)	a relative of his; or
(iii)	any other suitable person, 
on such terms as to payment by the authority and otherwise as the authority may determine; 
[(aa)	maintaining him in an appropriate children's home;]

(f)	making such arrangements as – 
(i)	seem appropriate to them; and
(ii)	comply with any regulations made by the Secretary of State.

(3)	Any person with whom a child has been placed under sub-section (2)(a) is referred to in this Act as a local authority foster parent unless he falls within sub-section (4). 

(4)	A person falls within this sub-section if he is –

(a)	a parent of the child;
(b)	a person who is not a parent of the child but who has parental responsibility for him; or
(c)	where the child is in care …

(6)	Subject to any regulations made by the Secretary of State for the purposes of this sub-section, any local authority looking after a child shall make arrangements to enable him to live with – 

(a)	a person falling within sub-section (4); or
(b)	a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare. 

The Factual Background
11.	In October 2003 the Claimant was 14 years of age.  Concern about her non-attendance at school led to her referral to the Defendant's Children and Families Team. Ms. Katherine Joyce (nee Mallon) was allocated her case.  On 3 October 2003 Ms. Joyce completed a Referral and Initial Information Record which states that:

"Father has reported to Sue [Neville,of the School Attendance team,] that Sarah is often staying out overnight and he does not know where. He is concerned that she is hanging around with suspicious people (gangs). He is unable to assert influence over Sarah who does not attend school.  Mr Collins had not informed police. Sarah's mother died in a house fire 2 years earlier.  Bereavement counselling was never taken up. It has deteriorated to a degree that Sarah is only coming to the house a couple of times a week. Mr Collins was given unconditional discharge from court over non-attendance at school of Sarah (April 2003)."

12.	Mr Collins was the step-father of the Claimant who Ms. Joyce notes as having parental responsibility for her.  

13.	On 12 October 2003 Ms. Joyce completed an Initial Assessment Record which includes the following:

"Family and social relationships
Sarah appears to have difficult relationships with the other members of her family. Her relationship with her father is very strained and they spend virtually no time together. She also has a difficult relationship with her uncle who lives with Sarah and her father.  Sarah rarely spends any time at the family home. For some time Sarah has been staying with friends and more recently her boyfriend Joseph Leyden.

Summary of developmental needs of child or young person etc.
Sarah has been through an extremely traumatic experience with the death of her mother which has impacted on her emotionally.  In order for her to come to terms with her loss she needs the support of her father who is not capable of this at the moment.  Mr Collins recognises this and agreed to address his drinking problem and attend counselling.  Until now however, he has failed to do this and these issues are impacting significantly on Mr Collins' capacity to care for Sarah. 

Reasons for further action
Mr Collins is not  meeting Sarah's needs."

14.	Ms Joyce had difficulties in making contact with both Mr Collins and the Claimant. Mr Collins referred her to a friend of Sarah's, Courtney.  A file entry made by Ms. Joyce on 7 November 2003 refers to a joint visit made by Ms. Joyce and Sue Neville  to Courtney's home where she was informed by Courtney's mother that:

"Sarah had "lived  there" for approximately 3 months until recently.  Prior to that, she informed me Sarah had been living with another friend and that Mr Collins had not cared for Sarah for a long time. She believes that Sarah is now staying with her boyfriend Joseph Leyden at 1 Sennen Road. …".

15.	Later on the same day, 7 November, Sue Neville brought the Claimant into Ms. Joyce's office.  The Service User Record, completed by Ms. Joyce, records: 

"4.25p.m.-	Sue Neville into office with Sarah who appeared to be upset. She explained that Sarah did not want to go back home and wanted to be placed in foster care. Sarah confirmed that this was the case. I asked her why she did not want to go home. At first she told me it was too hard to explain.  She said that her Dad spends every day in  the pub drinking and does not treat her like a daughter, but more like "a mate from the pub".  

She confirmed that she is staying at the address of her boyfriend Joseph Leyden – 1 Sennen Road and also gave me the telephone number. She informed me that he lives there with his mother and his two nephews.  

Informed Pauline and Duncan of the situation. We agreed that Sarah should remain at 1 Sennen Road over the weekend as she has been living there anyway. Sarah in agreement with this.  Informed her I would contact on Monday."
 
16.	It appears from Ms. Joyce's "Service User Record – Event Diary" that between 7 November and 25 November 2003,  despite attempts to make further contact with the Claimant and Mr Collins, Ms. Joyce only saw Sarah once briefly on 19 November when she agreed to come into the office the following day but then failed to attend.  Mr Collins repeatedly failed to keep appointments even when he was written to on 24 November requesting that he visit the Defendant's offices before a Planning Meeting that was arranged for 8 December 2003. 

17.	On 25 November 2003 Ms. Joyce completed a request for placement to the Accommodation Panel.  Under the heading "Child's Needs" Ms. Joyce wrote: 

"A placement is required for the following reasons: 
(1)	Sarah's presentation is a cause for concern and despite current accommodation difficulties, she is adamant she will not return to live with her father and his brother-in-law. 
(2)	Sarah's needs are not being met at home and her father has not been aware of her whereabouts for a period of months.  
(3)	Mr Collins' capacity to meet Sarah's needs is extremely limited due to his heavy drinking.  
(4)	There are no family members able to care for Sarah at the present time. 
(5)	Sarah is currently staying with her boyfriend and his family, in an overcrowded house. This is a temporary arrangement which cannot be continued. 
(6)	Sarah requires a stable environment where she will receive emotional support and appropriate guidance and boundaries. Sarah lost her mother in a house fire 2 years ago and has not had the emotional support she has needed to come to terms with this."

18.	On the following day, 26 November 2003, Ms. Joyce informed the Claimant that she had made a request for a foster placement.  Ms. Joyce's notes record:-

"Sarah stating this is not what she wants any more.  Sarah wishing to remain where she is. Sarah adamant she will not return to her father's care, or consider the prospect of going into care".

Following this discussion with the Claimant, on the same day, Ms. Joyce had a discussion with Mrs Leyden. Ms. Joyce's note continues: 

"[Mrs Leyden] informed me that she was happy for Sarah to live with her, if that was what Sarah wanted. Raised concern about what would happen if Sarah and Joseph had disagreements. Dorothy replied that she would still be happy for Sarah to stay if she was comfortable with that. Informed Sarah and Dorothy that a Planning Meeting would take place Monday to plan for Sarah's future."

19.	Ms. Joyce's diary entries between 5 December 2003 and early January 2004 make clear that Ms. Joyce continued with the intention to hold a Planning Meeting to consider Sarah's future, but that for one reason or another the meeting had to be postponed and it appears never to have taken place.  

20.	On 16 December 2003 Mr Collins died.  

21.	The last entry in Ms. Joyce's diary (that has been produced) is for 12 January 2004 and reads as follows: 

"H/V to Sarah and Dorothy Leyden.  S17 money £50 given for food and essentials. Dorothy has applied for Child Benefit in respect of Sarah. Described Sarah as "part of the family" so she is happy for Sarah to stay with her in the long  term.  

The parties' submissions
22.	Mrs Leyden, on behalf of the Claimant, put forward the Claimant's case in the terms that it was set out in the judicial review claim form and her two statements dated 24 July 2007 and 9 April 2008.  Mrs Leyden is not related to the Claimant. She agreed to Sarah living in her house after "a request" from Ms. Joyce in November 2003.  The Claimant's step-father died on 16 December 2003.  The following day Ms. Joyce visited Mrs Leyden and "asked her" if she would be prepared to care for Sarah on a long term basis. Following this meeting Mrs Leyden became the permanent carer for Sarah. The Claimant required accommodation as a result of there being no person who had parental responsibility for her and the fact that the person who had been caring for her was prevented from providing her with suitable accommodation or care. 

23.	Mr Cragg, for the Defendant, submits that "the Claimant was already living with and being cared for by Mrs Leyden when the Defendant first became aware of her situation at the start of November 2003".  Further, when Ms. Joyce investigated the position in 2003 "the Claimant appeared happy and settled with Mrs Leyden and wished to remain living there", (paras 3 and 4 of Defendant's Summary Grounds in opposition to Claim). The Defendant did not arrange or set up the accommodation arrangements. Accordingly a  duty to provide accommodation to the  Claimant did not arise under s.20 of the 1989 Act and a placement was not made with Mrs Leyden under s.23(2). 

24.	In support of his submissions in relation to  the relevant factual background Mr Cragg relied on the Statement of Ms. Joyce dated 10 March 2008. Ms. Joyce said that on 7 November 2003 "Sarah advised that she was living with the Leydens and had been for some time. I can confirm therefore that the local authority did not place Sarah with the Leydens" (para 5). In addition  Ms. Joyce said that on 26 November 2003:

"… Sarah confirmed … that she no longer wished to go into foster care and wanted to remain with the Leydens. Mrs Leyden confirmed that she would continue to be happy for Sarah to stay with her.  Though the situation was not ideal, it was agreed that the local authority would not intervene after Sarah could not be persuaded otherwise" (para 8). 

25.	Further Mr Cragg submitted that the claim should be dismissed in any event as it was out of time. Mrs Leyden submitted that the claim should not be dismissed by reason of any delay.

The Institution of Proceedings
26.	In June 2004 Mrs Leyden raised her concerns about the financial support she was receiving in respect of the Claimant's care.  The Defendant’s Social Services agreed that payments of £200 would be paid to assist her with clothing and essentials.  Mrs Leyden says she only became aware in late 2005 that she was potentially entitled to a fostering allowance.  On 10 October 2005 she wrote to the Defendant’s  Social Services Department setting out the history of the case and explaining the financial difficulties which the lack of financial support caused her.  The Defendant responded by letter dated 11 November 2005. Mrs Leyden sought legal advice and on 28 April 2006 solicitors wrote on her behalf to the Defendant setting out their view that Sarah was a "looked after child" and that Mrs Leyden should be treated as a foster parent.  By letter dated 23 May 2006 the Defendant stated that they had had no involvement in the placement of the Claimant with her.  They accepted she was a child in need, but denied that she was a "looked after child". There then followed further correspondence between Mrs Leyden's solicitors and the Defendant from August 2006, which included requests for disclosure of documents by the Defendant, culminating in a letter dated 16 May 2007 in which the Defendant confirmed their position that they had no role in the placement of the Claimant. Proceedings were instituted on 29 August 2007. 

Discussion and Conclusions
27.	In granting permission Wilkie J. specifically left open the issue of delay to be argued at the full hearing. Plainly there was delay, some of which remains unexplained. There was delay from the Defendant's letter of 11 November 2005 before Mrs Leyden's solicitors wrote their letter of 28 April 2006 and there was delay between the Defendant's letter of 12 October 2006 and Mrs Leyden's solicitor's next letter of 12 April 2007.  Further Mr Cragg rightly submits that where there are factual disputes as to what happened in 2003 it is important that a case such as the present one be advanced expeditiously.  Nevertheless I have decided that the delay should not act as a bar to the claim  for two reasons. First, if the Defendant acted unlawfully in failing to treat the Claimant as a "looked after child", that state of affairs is continuing. Second, Mrs Leyden and her solicitors were in communication with the Defendant after the Defendant's letter dated 11 May 2006 in an attempt to persuade them to reconsider their decision until the Defendant's letter dated 16 May 2007 confirmed their position.  In my view there has been no prejudice to the Defendant or third parties caused by the delay.  Accordingly I do not dismiss these proceedings on the ground of delay. 

28.	I now  turn to the substance of the challenge.  I consider that the material facts are clear from the contemporaneous documents.  In October 2003 the Claimant lived with Mr Collins who had parental responsibility for her, although she rarely spent any time at the family home.  On 7 November 2003 Ms. Joyce was informed that Sarah had "lived" for approximately 3 months until recently at the home of her friend, Courtney, and that she was "now staying" with her boyfriend, Joseph Leyden, and his family.  On 25 November 2003 Ms. Joyce acknowledged this was "a temporary arrangement".  The Defendant intended to hold a Planning Meeting to plan for Sarah's future.  Despite her stepfather's death on 16 December 2003 that meeting never took place.  The Claimant continued to reside with Mrs Leyden. 

29.	On 26 November 2003 after the Claimant had told Ms. Joyce that she wished to remain at Mrs Leyden's home, Ms. Joyce had a discussion with Mrs Leyden and Mrs Leyden said she was happy for Sarah to do so.  Ms. Joyce  informed the Claimant and Mrs Leyden that a Planning Meeting would take place to plan for Sarah's future.  That Planning Meeting was re-arranged a number of times but never took place. The contemporaneous records and Ms. Joyce's witness statement are silent as to what steps, if any, Ms. Joyce took after the death of Mr Collins as to where the Claimant would live in the long term. As I have noted (para 22 above)  Mrs Leyden says  that Ms. Joyce visited her again and asked her to look after Sarah on a long term basis, which she agreed to do.  

30.	Mr Cragg submitted that the present case is to be distinguished from D v. London Borough of Southwark [2007] 1 FLR 2181 where "the local authority took a central role in making the arrangements for S to live with ED" (para 50). He submitted that the Southwark case was decided on its specific facts in circumstances where a social worker expressly requested that the Claimant look after a child who otherwise would have had nowhere to live; by contrast, he submitted, in the present case the Claimant already had somewhere to live when the Defendant became involved and therefore a duty under s.20 did not arise. 

31.	In my view there is no material distinction between the two cases.  Until 26 November 2003 the Claimant was not living with the Leydens other than as part of "a temporary arrangement".  On that day the Defendant did play a central ( or “major”,see Southwark, para 49) role in allowing the Claimant to stay with Mrs Leyden when the Claimant said that she wished to live with her. Having ascertained and taken  into account the Claimant’s views, Ms. Joyce  spoke to Mrs Leyden, informed her what the Claimant wanted and , I infer,  asked her whether she was agreeable to it. Further on various occasions between 26 November 2003 and January 2004  Ms. Joyce  suggested and arranged and re-arranged a Planning Meeting  to plan for Sarah's future.  Thus through Ms. Joyce the Defendant played and intended to continue to play a significant role in the arrangements for the Claimant's future that included her living with Mrs Leyden. 

32.	Ms. Joyce says that she “ensured that Mrs Leyden was claiming all the relevant benefits in respect of Sarah” (Witness Statement, para. 11). It is reasonable to infer that is what she told Mrs Leyden. However the benefits Mrs Leyden received were limited to section 17 discretionary assistance. It was not explained to Mrs Leyden that she would not be receiving financial support from the Defendant  for looking after the Claimant because the Defendant was not responsible for the Claimant ( as she should have been told if that was the Defendant’s position); rather she was left in the unsatisfactory position  where she agreed to allow the Claimant to live with her permanently, but was not told the basis on which that would be, namely, one that would not involve the Defendant or any other party being obliged to provide financial support .

33.	I am satisfied that as at 26 November 2003 the Claimant, who it is agreed was a child in need, required accommodation as Mr Collins was at the time "prevented" from providing her with suitable care.  After his death on 16 December 2003 there was no person who had parental responsibility for her.  

34.	 In my judgment, in the circumstances of the present case, the Defendant did have a duty to provide accommodation  to the Claimant under s.20 of the 1989 Act and I find, on the facts, that a placement was made with Mrs Leyden under s.23(2). 

Conclusion
35.	For the reasons that I have explained, this claim succeeds. Accordingly the Claimant is entitled to (1) a declaration that from the date of her placement with Mrs Leyden on 26 November 2003 she was a child looked after by the Defendant within the meaning of Section 22 of the Children Act 1989 and (2) an order requiring the Defendant to pay the appropriate weekly allowance to Mrs Leyden from that date until the Claimant's eighteenth birthday. I will hear submissions from the parties as to the precise form of the relief that should be granted and on ancillary matters.