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24 JUL 2009


(Family Division; Black J; 24 July 2009)

The child had come into the care of the first local authority when the mother was incapacitated by mental illness. Although the child was at first placed with a local authority foster carer, within a month he went to live with his paternal grandmother, who lived in the area of the second local authority. A residence order was later made in favour of the grandmother, expressed to be 'in the interim'; in due course steps were taken to make a special guardianship order in favour of the grandmother. The grandmother sought declarations to determine which of the two authorities was responsible for the child's financial support, and on what basis. A key question was whether the making of the residence order had resulted in the child ceasing to be looked after by the first local authority, as the first authority claimed. The first authority conceded that it was responsible for paying for the child for the period between the making of the residence order and the making of the special guardianship order, but disputed the mechanism: if the child had continued to be 'looked after' the first authority would pay a fostering allowance; if the child had ceased to be 'looked after', the first authority would pay a residence order allowance. In respect to the future, if the child had continued to be looked after, the first authority would continue to have obligations in relation to special guardianship support, whereas if the child had ceased to be looked after from the time that the residence order was made, the second authority would become responsible once the special guardianship order had been made.

Applying the Court of Appeal authorities Re H (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629 and Southwark London Borough Council v D [2007] EWCA Civ 182, Children Act 1989, s 23(2), on the provision of accommodation and maintenance to a child, and s 23(6), on the making of arrangements to enable a child to live with someone, were two different routes by which children could be housed, each with wholly different consequences. When arrangements were made for a child pursuant to s 23(6), he was not being provided with accommodation by the local authority and, following placement, unless he was the subject of a care order, he ceased to be a looked after child. When arrangements were made pursuant to s 23(2), the child was being provided with accommodation by the local authority. As conceded, the child had initially been placed with the grandmother under s 23(2), but the first authority had ceased to provide the child with accommodation when the residence order was made. A s 20 duty on the first authority to accommodate the child was wholly inconsistent with a residence order, which was an independent, court approved and non-temporary basis on which the child was to be provided with accommodation by a person with parental responsibility. The child had therefore ceased to be a looked after child on the making of a residence order in favour of the grandmother. As a result, the second authority was the authority to which the grandmother would look for support in relation to the proposed special guardianship order. The allowance that the first authority would be paying the grandmother would be a residence order allowance, although, in the circumstances, it might be indistinguishable from the allowance that would have been paid had the child remained a looked after child.

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