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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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LOCAL AUTHORITY/SPECIAL GUARDIANSHIP: O v L, I and Orkney Island Council
Date:7 DEC 2009

(Family Division; Hedley J; 7 December 2009)

The couple, who lived within the English local authority area, were fostering a child from Orkney, a very vulnerable and sick child to whom they were distantly related. They had received an assurance from the Orkney authority that the Orkney authority would support them financially throughout the child's minority. However, when the child had been living in England for over 3 years, after the removal of a supervision requirement, the Orkney authority declared that it had no further responsibility to pay a fostering allowance, and that this was now the responsibility of the English authority. The couple applied for a special guardianship order; all concerned agreed that this should be granted, but the two authorities disagreed as to who should pay for the special guardianship report. The court could not make a special guardianship order without receiving a report.

The duty to prepare the special guardianship order report lay on the English local authority, which was the 'relevant authority' under Children Act 1989, s 14A(7)(b); for the avoidance of doubt the court requested the English authority to provide a report under s 14A(9). It appeared that a stage had been reached at which budget trumped welfare, and the judgment was being delivered in open court, because this was something that should be known. The Orkney authority was not subject to the jurisdiction of the English court, but there had been an apparent assurance that it would continue to provide the couple with financial support throughout the child's minority and this would, the court suspected, have been a cheaper solution than the authority caring for the child itself. The court could go no further, but copies of the judgment were to be provided to the Secretary of State at the Department of Children and Families and the Secretary of State for Scotland for onward transmission to the relevant minister within the Scottish government, so that government could address some of the serious issues that arose in this case.