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RESIDENCE/LOCAL AUTHORITY: R (M) v Birmingham City Council [2008] EWHC 1863 (Admin)

Date:30 SEP 2008

(Queen's Bench Division, Administrative Court; Charles J; 30 September 2008)

When the mother was warned that the local authority would remove the child unless she stopped taking heroin, she went to live with the uncle, but left when he insisted that she remain drug free. The child remained with the uncle and eventually, after consulting social services, the uncle obtained a residence order. It was accepted that the local authority had been on the point of intervening, and had approved the placement with the uncle. The uncle, who was on benefits, later sought a residence order allowance; the local authority policy was that, unless there were exceptional circumstances, such payments would only be made if the child had previously been in authority care for at least 3 months, or the residence order had been made in care proceedings.

The local authority policy was lawful, however, it had not been applied properly in this case, in that the uncle's exceptional circumstances had not been considered, and the decision not to award the allowance had therefore been unlawful. The authority should have looked at the reality of the situation, and not been driven by its internal procedures or compliance with technicalities, particularly if that had or would tend to have the effect of discouraging and delaying family placements involving residence orders, as an alternative to care.