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(Court of Appeal, Richards, Leveson, Black LJJ, 30 July 2013)
When the child was 5 months old an interim residence order was granted to the grandparents, against the parents' wishes, and while the local authority was prepared to make payments to help with childcare costs it did not accept that it had duties to the child as a looked after child. The grandparents were refused a fostering and residence order allowance.
The local authority appealed against a decision that the child was a looked after child following the grant of the interim residence order. It submitted that the child had been ‘in need' for the purposes of the Children Act 1989, s 20(1) only until she moved to live with the grandparents, as, although it had a duty to provide the child with accommodation under s 20(1), it had been prevented from fulfilling it by s 20(7) because the parents had objected to her being accommodated.
The appeal was allowed. It was an important factor that the parents had objected at all times to the local authority providing accommodation for the child. Either a duty arose under s 20(1)(c) because she was in need as her carers were prevented from providing her with suitable accommodation but the local authority were prevented by the parents' objections from fulfilling that duty because of s 20(7). Or, the joint effect of s 20(1) and s 20(7) was to prevent a duty arising at all. Either way, the local authority could not have provided K with accommodation under s 20(1) at any time. As soon as a residence order was made, it conferred parental responsibility under s 12(2) and the child was, therefore, provided with accommodation by the person with parental responsibility. Where a child was in the authority's care, the making of a residence order immediately discharged the care order pursuant to s 91(1) and the child was no longer looked after.