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LOCAL AUTHORITY: Southwark London Borough Council v D [2007] EWCA Civ 182

Date:20 MAR 2007

(Court of Appeal; May, Keene and Smith LJJ; 7 March 2007)

For practical reasons it would often follow that when a Children Act 1989, s 20(1) duty arose the child would be placed with a local authority foster parent pursuant to s 23(2) and then at some later time arrangements would, if reasonably practicable, be made to enable the child to live with a relative, friend or someone connected with the child. When those arrangements were made, the s 20(1) duty would have been discharged, and the child would cease to be looked after. However, the child became a looked after child as soon as the s 20(1) duty arose, that is when it appeared to the local authority that the child appeared to require accommodation for more than 24 hours; it was not necessary that the child should have been accommodated for 24 hours before he or she became looked after. Once the s 20(1) duty arose, it could be fulfilled either by making a placement under s 23(2) or by making arrangements for the child to live with a relative, friend or connection, pursuant to s 23(6). In this case, the local authority had arranged with the applicant, a former girlfriend of the father, that she would provide the child with accommodation at the authority's expense under s 23(2), not at her own expense under s 23(6), nor by way of a private fostering arrangement. While a private fostering arrangement might become available in such a way as to permit a local authority which was on the verge of having to provide accommodation for a child to side-step that duty by assisting with the private arrangement, usually it would come about as the result of discussions between the proposed foster parent and either the child's parents or a person with parental responsibility. If a local authority took a major role in making arrangements for a child to be fostered, it was more likely to be concluded that in doing so it was exercising its powers and duties as a public authority pursuant to ss 20 and 23. If the authority wished to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. Only on full receipt of the proposed financial arrangements could the foster parent give informed consent to acceptance of the child under a private fostering arrangement.