In what circumstances is a local authority’s duty under ChA 1989, s 20 triggered? (R (on the application of Cunningham) v Hertfordshire County Council)

Family analysis: When does the local authority assume responsibility for a ‘child in need’ or ‘looked after child’? David Josiah-Lake, solicitor and collaborative family lawyer at Josiah-Lake Gardiner, discusses the issue in the recent case of R (on the application of Cunningham) v Hertfordshire County Council.

Original news

R (on the application of Cunningham) v Hertfordshire County Council [2016] EWCA Civ 1108, [2016] All ER (D) 84 (Nov)

The Court of Appeal, Civil Division, dismissed the claimant’s appeal against the defendant local authority’s decision not to provide her with support in her care of a child, namely, her grandson, following his mother’s arrest and subsequent conviction of various offences. On the day of the mother’s arrest, there had been no question of the child requiring accommodation to be provided by the authority, under section 20 of the Children Act 1989 (ChA 1989), because private arrangements had been made for him between the mother and claimant, which had not involved the local authority. Accordingly, on the facts of the present case, there had been no legal flaw in the authority’s decision.

What is the background to this case?

On being taken into custody (for a crime of violence) the mother of an 18-month-old child placed him in the care of her mother (the boy’s maternal grandmother). The placement having been arranged without social services’ intervention the local authority assumed no responsibility (including financial responsibility) for the child. The grandmother argued that the child should have been regarded in law as being ‘looked after’ under the terms of ChA 1989, s 20 on the day he was placed in her care.

What did the Court of Appeal have to decide?

Whether the local authority had erred in its assessment that the child had not become a ‘looked after’ child by virtue of his mother no longer being able to accommodate him as he was on the relevant date living with his grandmother (the appellant).

Does this case clarify when a local authority should assume responsibility for a ‘child in need’ or ‘looked after child’?

Yes, it confirmed that in circumstances where it appears to the local authority that a child in need in their area requires accommodation, the local authority has a duty to act/to arrange suitable accommodation for the child. This is an intensely fact-sensitive enquiry, which is for the local authority to assess. The duties are set out in ChA 1989, s 20(1):

‘Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of:

  1. There being no person who has parental responsibility for him;
  2. His being lost or having been abandoned; or
  3. The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.’

ChA 1989, s 20(7) provides that accommodation may not be provided pursuant to this duty if a person with parental responsibility objects, so long as that person either provides accommodation themselves or arranges accommodation.

In the instance case Hertfordshire County Council argued that the child didn’t appear to require accommodation on 17 October 2012 (the date of the mother’s arrest) because the mother made her own arrangements in which they took no part. In addition when the position changed on 26 October 2012 (when the mother was remanded in custody), ‘without encouragement or facilitation by the Council (or City Council), and with [the mother’s] approval’, the grandmother agreed to continue to look after the child. The court considered that:

‘A local authority does not exercise its statutory powers and duties by facilitating a private arrangement for the accommodation of a child by merely not objecting to a purely private arrangement that is made.’ (see para [16] of the judgment)

PSL Practical Point: see also Practice Note: Section 20 of the Children Act 1989—local authority duties.

What does this decision mean for the provision of assistance for family members who care for a child on an emergency basis that is extended far beyond their expectations?

It follows that, in those circumstances, the child would not be treated as ‘in need’ or ‘looked after’, and the local authority would not be obliged to assist (whether financially or otherwise), unless it had placed the child with that family member.

If a placement is made (as in this case) without local authority intervention, and the family member subsequently informs the local authority that they are no longer prepared to provide housing for the child, while the child would then qualify as a child in need of accommodation there is no guarantee that the local authority would, after its assessment, keep the child in that home. So, it would be a dangerous hand to play if the aim were only to get (financial) assistance from the local authority and not really for the child to be moved elsewhere.

Interviewed by Evelyn Reid. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor