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(Queen's Bench Division, Administrative Court; Antony Edwards-Stuart QC sitting as a deputy judge of the High Court; 22 January 2009)
A woman already caring for the child's brother took the 15 year old child in to her home one night after the child had been thrown out of the father's home. The woman then approached the local authority, seeking financial assistance to enable her to keep up her rent payments and her council tax payments, both of which were in arrears; she wanted to prevent the child from going into care. The initial assessment, which was very late, considered that this might be a private fostering arrangement, but that, as the father could not pay, being himself in debt, social care should support the foster parent until the child was 16 and able to claim housing benefit. The only contact the foster parent had with the father was when she collected the child's child benefit book from the father; the child had no contact with the father after leaving the father's home. When the child was 16 the local authority withdrew the financial support they had been giving under Children Act 1989, s 17, even though the child was now attending college, and not entitled to claim housing benefit. The authority also refused to assess the child's needs, claiming that the arrangement had been a private fostering arrangement, either with the father, or directly with the child. The child sought judicial review of that decision, arguing that he had been, or should be treated as having been, accommodated by the authority under its s 20 duty.
The father had had no contact with the foster parent, and could not therefore have made a private arrangement with her for the child to be privately fostered. It was self evident that a 15-year-old child could not enter into a binding private fostering arrangement with an adult; the fostering arrangement must be made by parents or by the local authority. If, as in this case, a local authority allowed a prospective foster parent to believe that she would receive financial support, as opposed to fostering at her own expense, the court was entitled to conclude that the authority was exercising its functions under ss 20 and 23, not simply facilitating a private fostering arrangement. The child had been a child in need, within the local authority area, whose parent was prevented from providing suitable accommodation or care. Accommodation uncertain as to duration because not founded on any secure financial footing, such as the child's accommodation with the woman when the woman first approached the authority, was not accommodation that could be said to be suitable for a 15 year old who was a child in need. No reasonable authority could have decided anything other than that the child had been a child in need requiring accommodation under Children Act 1989, s 20.
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