London Borough of Southwark v D

Factual and Procedural Background

This appeal arises from a judicial review decision concerning the care and maintenance of a child ("S") between January 2004 and June 2005. The local authority ("Southwark") was found to have looked after S pursuant to its statutory powers under Part III of the Children Act 1989 and was held liable to pay for S's accommodation and maintenance. Southwark contested this, arguing it had only facilitated a private fostering arrangement between S's parents and the caregiver ("ED"), and thus owed no maintenance duty.

S was born in Jamaica and lived there with her mother until age 11, when she moved to England to live with her father ("RB") in Southwark. ED, a former partner of RB, cared for S mainly at her home in Lambeth. After concerns about RB's treatment of S, Southwark placed S with foster parents in May 2003, but the placement failed. Subsequently, in January 2004, following allegations of violence by RB, Southwark intervened, instructed the school to prevent RB from collecting S, and arranged for S to live with ED. ED cared for S from that point onward.

ED sought financial support from Southwark for caring for S but received only modest lump sums initially. Southwark later denied responsibility, asserting that since S resided in Lambeth with ED, Lambeth was responsible for support. ED applied for judicial review seeking a declaration that Southwark was obliged to maintain S during the relevant period.

The lower court (Lloyd Jones J) held that Southwark was under a duty to provide accommodation and maintenance for S, rejecting Southwark's characterization of the arrangement as private fostering. Southwark appealed this decision.

Legal Issues Presented

1. Whether Southwark was under a statutory duty pursuant to section 20(1) of the Children Act 1989 to provide accommodation for S from January 2004 onwards.
2. Whether the arrangement between Southwark, ED, and S constituted a placement under section 23(2) or an arrangement under section 23(6) of the Children Act 1989.
3. Whether the judge erred in extending the time for bringing the claim.
4. The legal effect and timing of when a child becomes "looked after" within the meaning of the Children Act 1989, particularly regarding the 24-hour accommodation requirement in section 22(2).
5. The distinction between a local authority facilitating a private fostering arrangement and exercising statutory powers to look after a child.

Arguments of the Parties

Appellant's Arguments (Southwark)

• Southwark denied that it had a duty under section 20(1) because S did not require accommodation from the authority as ED was willing to provide it under a private fostering arrangement.
• Argued that the arrangement was a private fostering arrangement facilitated by Southwark, not a statutory placement requiring maintenance obligations.
• Contended that if a section 20(1) duty arose, it was discharged by making arrangements under section 23(6), which does not require the authority to pay for accommodation or maintenance.
• Asserted that the judge erred in holding that a child must be accommodated for 24 hours before being "looked after" and before section 23(6) arrangements can be made.
• Maintained that the claim was out of time and the extension of time was wrongly granted.
• Accepted failure to comply with regulations and inadequate communication with ED but maintained the legal characterisation of the arrangement.

Respondent's Arguments (ED)

• ED argued that S was a child in need requiring accommodation under section 20(1)(c) because the father had been prevented from providing care.
• Contended that Southwark placed S with ED pursuant to section 23(2), thus Southwark was obliged to pay for accommodation and maintenance.
• Rejected the characterization of the arrangement as private fostering, emphasizing Southwark's active role and financial promises.
• Supported the judge’s interpretation that a child becomes looked after as soon as the duty under section 20 arises, without needing 24 hours of accommodation.
• Defended the extension of time as reasonable and justified given the statutory complaints process and funding delays.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the statutory framework under the Children Act 1989, focusing on the interplay between sections 17, 20, 22, and 23, and the distinctions between private fostering arrangements and statutory duties of local authorities.

It accepted that a private fostering arrangement typically involves an agreement between the child's parents and the foster carer, with the local authority playing a supervisory role. However, in this case, Southwark took a central role in arranging S's care with ED, including instructing the school, convening meetings, and delivering S to ED's home, without clear communication that the arrangement was private or that ED would have to seek financial support elsewhere.

The court concluded that this demonstrated an exercise of statutory powers, triggering a section 20(1) duty on Southwark to provide accommodation and maintenance for S.

Regarding the timing of when a child becomes "looked after," the court found error in the judge’s view that the child must have been accommodated for 24 hours before being regarded as looked after. The court reasoned that the duty arises as soon as it appears the child requires accommodation for more than 24 hours, and the local authority must act immediately to provide accommodation either through section 23(2) placements or arrangements under section 23(6).

It noted an inconsistency in the judge’s acceptance of a section 23(2) placement but rejection of a section 23(6) arrangement based on the 24-hour rule, concluding both require the child to be looked after and thus the same precondition applies.

Examining the evidence, the court found that Southwark’s conduct and assurances to ED indicated a section 23(2) placement or an equivalent statutory arrangement rather than a private fostering arrangement or section 23(6) arrangement. The lack of regulatory compliance and clarity about financial responsibility supported this conclusion.

The court also upheld the extension of time for the claim, finding that the claimant acted promptly following the exhaustion of the statutory complaints procedure and funding acquisition, with no prejudice to Southwark.

Holding and Implications

The Court dismissed the appeal.

The court held that Southwark was under a statutory duty pursuant to section 20(1) of the Children Act 1989 to provide accommodation for S from 20th January 2004. Southwark fulfilled this duty by placing S with ED under section 23(2) or an equivalent statutory arrangement, obliging Southwark to pay for S's accommodation and maintenance during the relevant period.

The court clarified that a child becomes "looked after" as soon as the duty under section 20 arises and it appears the child will require accommodation for more than 24 hours, not after accommodation has been provided for 24 hours.

This decision reinforces the importance of clear communication by local authorities when making arrangements for children's care and delineates the boundary between private fostering and statutory duties. It also confirms that local authorities cannot avoid maintenance obligations by informal or unclear arrangements that effectively constitute placements under the Children Act.

No new precedent beyond the facts of this case was established; the court emphasized that the decision depended on its particular facts.