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JUDICIAL REVIEW: KS (By Her Litigation Friend) v Bradford Metropolitan District Council  EWHC 11 (Admin)
Sep 29, 2018, 19:01 PM
The 11-year-old child had lived with the maternal grandmother from the age of 2 due to a number of local authority concerns in the family home including alcohol abuse, domestic violence and inadequate supervision. Although this was arranged by the local a
The 11-year-old child had lived with the maternal grandmother from the age of 2 due to a number of local authority concerns in the family home including alcohol abuse, domestic violence and inadequate supervision. Although this was arranged by the local authority there was no record of the legal status of the placement or the support the grandmother would receive from the local authority or her legal status in respect of the child.
Within the child protection review meetings it was agreed that the child should not return home but should remain with the grandmother and the case was closed. The grandmother now brought judicial review proceedings in respect of the local authority determination that the child was not looked after pursuant to s 20 and s 22 of the Children Act 1989.
It was clear that the local authority was the prime mover in facilitating the placement following the assessment that the children could not remain in the family home and from the beginning it was the local authority that took an active role in management of the placement. In addition the local authority maintained a close interest in the child and organised multi-disciplinary meetings and established a core group.
Applying the two-stage test identified in SA v KCC (Child in Need)  EWHC 848, this was not a private arrangement. The decision that the child was not a looked after child was quashed and a declaration was made that as from the date of the commencement of the placement the child was looked after within the meaning of s 20 and s 22 of the Children Act 1989 and as such the maternal grandmother was entitled to a lump sum of the equivalent weekly allowance from a date three months prior to the application.
A judicially approved version of the judgment with a comprehensive headnote will appear in a forthcoming issue of Family Law Reports.
Shu Shin Luh(instructed byRidley & Hall, solicitors) for the Claimant
Phillip Booth (instructed by Dept of Legal & Democratic Services - BMDC ) for the Defendant
Hearing dates: 6th January 2014
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Judge Heaton QC:
 This is an application in the Administrative Court for a review of decision by the City of Bradford Metropolitan Council that KS is not a looked after child pursuant to s20 and s22 of the Children Act 1989. The Claimant is a child and has acted by her litigation friend DCGM. DCGM is the maternal grandmother of KS with whom she lives. The Claimant has been represented before me by Shu Shin Luh. The Defendant Local Authority has been represented before me by Phillip Booth.
The salient history
 KS is now 11 years old. Until she was about 2 years old KS was brought up with her siblings by her mother, K and her father R. There were difficulties in that household. The mother seriously misused alcohol. KS and her siblings were caught in the middle of incidents of domestic violence. One of KS siblings complained that he was hit by R. There was neglect.
 Against that background the Defendant had regular involvement with this family from 1999. The case had been closed by the Defendant in September 2004 as a consequence of perceived improvement in the childrens' situation following work with K and R at a local Family Centre.
 However, on the 15th October 2004 the school attended by KS' siblings made a referral to the Defendant on the basis of an allegation made by one of the siblings that R had hit him across the face and bust his lip. The notes disclose that in relation to this referral the Defendant allocated a social worker to the case who began to make enquiries of those professionals involved with the family.
 And so it was that after those initial enquires had been made on the 28th October 2004 the allocated social worker and a colleague attended at the family home. The situation they found the children to be living in was grim. The rooms were filthy, the children's bedding was grubby. The kitchen floor was covered with old food, dirty washing and dog faeces. Cupboards were bare of food.
 It is recorded that the parents were told that there were a series of concerns about their parenting:
i) Alcohol issues
ii) Domestic violence issues
iii) Neglect by way of the children not being fed
iv) R smacking one of the siblings
v) One of the older siblings being put in the position of having to parent their siblings due to lack of parenting from the parents
 A conversation developed between the social workers and the parents. The Defendant's record of that conversation is at D74 onward in the court bundle. The parents for the large part, particularly the mother, seem to have recognised many of the shortcomings in their parenting.
 The Defendant's note then says this:
"Advised the parents that the whole situation was unacceptable in respect of the children and I (the social worker) was not prepared to let them stay in these conditions. (The mother, K) agreed. R became upset but both agreed things were in a mess"
 There was then a further discussion. The note goes on:
"Parents accepted children need to be elsewhere and they suggested grandparents whom the children are really close to"
 The social worker was told that she could contact the paternal grandparents and was given contact details. The mother said that the maternal grandmother DCGM would by coincidence be round in about 10 minutes. Thus it was the social worker not the parents who was to be instrumental in making the arrangements.
 The paternal grandfather arrived at the family home as did DCGM. There was then a discussion recorded at D77. The paternal grandfather agreed to have the siblings and DCGM agreed to have KS. The arrangement was recorded as to be for few days. At what seems to have been the last moment the mother asked if she could go and live with DCGM as well, which she did for a time.
 On the 1st November the social worker made a home visit to the paternal grandparents. It is recorded that the paternal grandfather had been down to the school and told the school that the children were not to be collected from school without his consent. They were also asking for a small amount of money for clothes and the social worker is recorded as saying that she would speak to the mother and her office in respect of financial assonance.
 The first visit to DCGM at home is recorded as the 3rd November 2004. The note of that meeting is at D81. There is no recording of any conversation as to the status of the placement of the children with DCGM, or of the support the Defendant would give to DCGM if any. Nor indeed was DCGM given any information as to her legal status in respect of the children.
 From that point the case follows a pattern familiar to those involved in child protection work. There was a case conference on the 30th November 2004. A core group was established and that met on the 17th January 2005. On the 9th February 2005 there was a Child Protection Review. In April 2005 there was a further Core Group meeting, and the following month a further Child Protection Review. In September 2005 there was a further core group meeting, the following month a Child Protection Review, and then on the 19th October 2005 the case was closed. During that process regular home visits were made.
 Within that structure a decision was made eventually that the children should not return to the care of the parents and should remain long term with, in the case of KS, the maternal grandmother DCGM. She had by now formed a new relationship and she subsequently moved out of the area of the Defendant and into another area.
 The only recorded discussion of the status of the placement or the legal status of DCGM in respect of KS on the Defendant's records appears to be at a core group meeting held on the 5th September 2005 (minutes at D211 onward). At that meeting it is clear that the placement was to continue on the basis that the parents consented. DCGM was told by the chair (in error) that if a problem arose she could apply for an "interim residence order" and the court would then decide the matter. There is no recorded discussion at any point of the basis of KS living with DCGM, nor of any support that the Defendant might provide.
The Claimant's argument
 The claimant produced a skeleton argument dated the 23rd December 2013. The Defendant produced a skeleton argument dated 6th January 2014 and the Claimant then produced a response to the Defendant's argument dated the same day.
 Although the Claimant had surveyed the broad canvas of issues that may have arisen by the time counsel came to develop her argument orally many of those matter had fallen away. Her case was that it was now clear that at the material time KS was a child a need. Against that background she said that I should then look to s20 Children Act 1989. Counsel took me to the matters identified in R(A)-v-Croydon LBC  EWCA Civ 1445 affirmed by Lady Hale at paragraph 28 of R(G)-v-Southwark LBC  UKHL 26. She makes the point, not contradicted by Mr Booth, that each of these matters is met, either as a matter of fact or by way of concession of the Defendant.
 Thus she says, she can put her case in simple terms. Given that all the matters identified in the Croydon case are met KS was at the material time arguably within the definition of a Looked after Child pursuant to s22(1)(b) Children Act 1989.
 Counsel goes on the address the Defendant's argument that it had not provided accommodation, but rather this was a private arrangement between the parents and DCGM. Here counsel make two key points:
i) The Defendant played a key role in the removal of the children from the care of the parents. It is clear from the Defendant's notes that the social worker was not prepared to have the children remain in that home. Having made the decision that the children could not remain the Defendant properly asked the parents for there was a relative who might take them and the parents gave the names for the grandparents. The Defendant was then intimately involved in brokering the arrangement for the children to move
ii) At no point in the process either at the time or afterwards did the Defendant ever discuss with DCGM the implications for funding or otherwise of her taking KS on the basis of a private arrangement. Thus DCGM was not in a position to give informed consent to a private placement with her (R(D)-v-Southwark LBC  EWCA Civ 182 )
 Thus counsel argues this was not a private placement but the Defendant exercising its powers and duties as a public body pursuant to s20 and s23(2).
 Finally counsel turned to the argument raised by the Defendant that this was in fact a placement under s23(6) Children Act 1989, the Defendant fulfilling it is duties and obligations by making arrangements for the child to live with a relative.
 Counsel made the following points:
i) That there was a contradiction in the Defendant's case in arguing that the child was not a looked after child at all on the basis that the family had stepped in when the Defendant was on the verge of intervening, but then arguing that arrangements had been made under s23(6) as that applies only to looked after children
ii) That there was nothing on the Defendant's own records to show that it had ever applied its mind to this issue
iii) That following the Southwark decision there was a heavy obligation on the Defendant to ensure that the proposed carer fully understood the position. If there was no such discussion the proper inference to be drawn was that the child was to be accommodated by the carer on the Defendant's behalf. There had been no such discussion here.
The Defendants argument
 There was no argument between counsel as to the relevant law. Mr Booth took me to SA-v-KCC(Child in Need)  EWHC 848 a decision of Black J (as she then was). Counsel made the point that in that authority Black J had identified that a two stage analysis was necessary to determine whether a child was looked after or not. The stages were:
i) Firstly did it appear to the Local Authority that a child in need required accommodation as a result of one of the prescribed circumstances? If they did a duty to provide accommodation arose under s20
ii) Secondly the Court must go on to consider how to characterise what the Local Authority had in fact done to comply with its obligations: the Local Authority could be placed under s23(2) including being placed with a relative; or the Local Authority could make arrangements for the child to live with someone including a relative under s23(6).
 Mr Booth invited me to follow the two stage approach in SA. What the Defendant in fact did is an important consideration at the second stage counsel asserted. A child placed under s23(2) is a looked after child, but a child for whom arrangements have been made, is not. Thus Mr Booth submitted it was crucial for the court to look carefully at the records to see what happened on the ground at the material time. Mr Booth's put his argument in this way; that although there had been no formal discussion about it everyone knew that this was a private arrangement.
 Counsel took me through the records. He was able to take the Court to a number records which could be read as suggesting that this was indeed a private arrangement. The problem with this approach, as was put to him, is that there were a number of other entries in the Defendant's records which suggested otherwise.
 Mr Booth made point that there is no contemporaneous record of DCGM complaining to the Defendant that she was short of money. He is right about that. Equally Mr Booth told me that the Defendant robustly rejected DCGM's assertions in her statements that she did make such complaints. He goes on to make the point that in so far as money is discussed it is the distribution of benefits for the child as between the mother and DCGM that recorded which again he submits is suggestive that this is a private arrangement.
 Counsel also submitted that the Court should have regard to the Defendant's internal processes. A social worker in the position of the worker who attended the family home on the 28th October 2004 was simply not in a position to decide that a child should be a looked after child. If a child were to be a looked after child a whole series of processes would have to be gone through by the Defendant. That such processes were not followed was indicative of the Defendant's understanding that this was a private arrangement.
 He concluded with the assertion that DCGM had known exactly what she was taking on at the time.
Discussion and conclusions
 I begin with the factual issues raised by the Defendant. The Defendant tells me that it does not accept many of the assertions made by DCGM in her statements. In so far as the notes made at the time by the Defendant and DCGM statements made now are in conflict I prefer the Defendant's contemporaneous notes and will proceed on the basis that they provide as accurate a factual base as can be achieved.
 The next matter I turn to is whether the Defendant on the 28th October 2004, or indeed at any time after that until proceedings were intimated, ever addressed its mind to the status of this placement.
 In my judgment it did not. These are my reasons for coming to that conclusion:
i) There is no record of any internal discussion on the part of the Defendant's to what the status of this placement was. The answer to that question was an important one whatever the basis upon which KS was living with DCGM, it would set the boundaries of the Defendant's obligations and responsibilities to KS and her carers
ii) There is no record of such a discussion more generally with other professionals, for example in Child Protection Conference, Child Protection Review or Core Group meetings. Those same boundaries would have been important to other professionals involved with the family
iii) There is no record of any discussion with DCGM. Again such a discussion would have been crucial so that she would know what she was taking on, and what help if any she could expect.
 Mr Booth suggests that the absence of such discussion is explained by it being clear to all that this was a private arrangement. I reject that argument. As I have observed above such a discussion would have been necessary on whatever the basis upon which KS was living with DCGM as the courts have repeatedly emphasised. It simply was not done.
 Was KS a child in need requiring accommodation as a result of one of the prescribed circumstances? The Defendant has not sought to argue before me that KS was not a child in need. Nor has the Defendant sought to argue that this was not as a result of one the prescribed circumstances arising.
 What did the Defendant do in consequence? The first point to make of course is that as I have found above the Defendant had not put its mind to the question of whether it had any s20(1) duties to KS or not. Thus there is no reasoned decision of the Defendant to examine here, the issue must be considered through the actions of the Defendant, as indeed Mr Booth argues.
 I have no doubt that it was the Defendant that was the prime mover in the removal of the children including KS from the parents on the 28th October 2004. The note of the social worker says in terms that she was not prepared to allow the children to remain in the home. It was after that point had been reached that alternative accommodation came to be discussed. The situation that faced DCGM that day was that if she did not give KS a home she would be removed to stranger foster care.
 To seek to characterise that removal as a private arrangement between the parents and the grandparents is simply not in accordance with the picture painted by the Defendant's own documents. I am left in no doubt having considered the Defendant's records that it was the Defendant, not the parents, who brokered the move for KS out of the parents' home that day.
 Mr Booth has argued that by the parents suggesting that the children could go to the grandparents they give a clear indication that this was a family arrangement. On that point I prefer the argument of the Claimant, that what was happening here was that a decision had been made that the children should be removed with the consent of the parents and the Defendant was appropriately looking for a suitable family member to place with before looking to stranger foster carers. The Defendants own core assessment says at D99 that
"in the interests of the children with the parents' permission they were placed with grandparents".
That sentence carries the clear implication that the children were placed by the Defendant with the consent of the parents.
 From the very beginning the Defendant took an active role in the management of this placement. When the mother asked that day if she could go to live with DCGM as well as KS it was the social worker who told the mother that she could, but was not to remove the child from the care of DCGM.
 As to DCGM's actions following the day of placement there are some Mr Booth can point to suggest that this was a private arrangement: DCGM can be seen at more than one point making arrangement for the children without apparent reference to the Defendant; DCGM is not recorded as asking for financial assistance from the Defendant; DCGM did seek and obtain financial assistance from the mother; at one point DCGM was talking of getting advice in respect of an application for guardianship [sic] for KS; DCGM decided that she would move out of area and did so.
 None of the matters put before me by Mr Booth is determinative of the issue. Furthermore their persuasive power is significantly reduced given that there had been no discussion with DCGM as to what she could and could not do under the arrangement that was in place.
 As to the Defendant's conduct post placement it has maintained a close interest in KS. In addition to home visits to the family the Defendant has organised statutory multi-disciplinary meetings and established a core group. The Defendant took a leading role in organising contact for the parents post placement. It was the Defendant who took the lead in assessing whether KS could go back to live with her mother. Despite as I find having organised the placement of KS with her the Defendant never told DCGM that this was a private placement.
 Mr Booth has reminded the Court, rightly, that it would be wrong to confuse child protection measures with an indication that this was a placement by the Defendant. The two are very different he says. He is right. However, the most telling record in the context of that submission is that of the Child Protection Review of 12th May 2005. In the minutes the following is recorded:
"It is accepted that the children are at no immediate risk whilst in the care of their grandparents but the concerns regarding their future safety and well being remain.....Even if the children are to remain with the grandparents further consideration needs to be given to how sustainable this will be on a longer term basis granted the age and circumstances of their current carers"
 It is self evident from that extract that the Defendant took the view that it was in a position to assess DCGM as a long term carer for KS and decide whether she was suitable even in circumstances where KS was at no immediate risk in her care and by implication the mother supported her being there. I invited Mr Booth to explain how that position could be consistent with the proposition that this was a private arrangement but he was unable to do so.
 Turning then to the two stage analysis described by Black J (as then) in SA for the reasons given above I reach the following conclusions:
i) This is not a case where, the Defendant being on the verge of acting, the family came to an arrangement for the care of the children including KS. Rather this is a case where the Defendant had determined to act, and at that point DCGM was drawn into the discussions as to what should happen in consequence
ii) It is clear in my judgment that as at 28th October 2004 KS was a child in need who required accommodation as a result of one of the prescribed circumstances. Thus a duty to provide accommodation arose under s20 Children Act 1989
iii) The Defendant's actions to comply with that duty are best characterised as the Defendant placing KS with DCGM under s23(2) Children Act 1989 rather than making an arrangement to enable the child to live with a relative under s23(6)
 Having come to those conclusions on the primary issue I turn now to the issue of length of time over which payment of the allowance should be ordered. The Claimant seeks payment of the appropriate weekly allowance from 28th October 2004. However, counsel for the Claimant recognised that on authority the Court was likely to limit the "back payment" to a date three months before the date of the application and did not seek to actively argue against such an approach. In my judgment such an approach does justice to both sides here and I will make an order in those terms.
 Finally, although no ruling was sought by either party on the matter it was evident during the course of proceedings that the Defendant was very disappointed that is was being suggested, in so far as it was, that it had sought to deliberately side step its obligations here to KS in 2004 and had subsequently ignored requests for assistance from DCGM.
 For the assistance of the parties I am bound to observe that by my conclusions in relation to the Defendant's failure to consider the status of the placement of KS with DCGM it is implicit that the Defendant here did not recognise its responsibilities to KS in 2004 and then actively seek to avoid them. Equally, as to requests for financial assistance I have no doubt that had such claims been seriously raised by DCGM they would have been recorded by the Defendant as they were in respect of the paternal grandfather. As I have said there is no such record. For my part therefore I am not critical of the Defendant in respect of those matters.
 Thus I order:
i) That the Defendant's decision that KS was not a Looked After Child is quashed
ii) It is declared that from 28th October 2004 KS was a Looked After Child by the Defendant within the meaning of s20 and s22 Children Act 1989
iii) The Defendant shall pay to the Claimant a lump sum equivalent to the appropriate weekly allowance from a date three months before the date of the application herein
iv) That the Defendant shall pay the Claimant's costs to be assessed if not agreed
v) There shall be detailed assessment of the Claimant's publically funded costs
vi) Permission to apply in respect of consequential matters
 I would be grateful if counsel would agree a draft order and submit it to the Court for approval within 7 days.