“Most appropriate placements” for looked after children: The High Court waters down the duty

January 29th, 2016

Sometimes judges will do things that nobody asked them to do.  So it was in R (Nationwide Association of Fostering Providers) v Bristol CC, Leeds CC, Suffolk CC [2015] EWHC 3615 (Admin).  Without any encouragement from the parties before him, William Davis J has seriously watered down the duty on councils to find the “most appropriate placement” for looked after children.

The Claimant’s case

The Nationwide Association of Fostering Providers (NAFP) challenged the way in which councils select foster carers for children.  Many councils consider in-house foster parents first.  Only if they cannot find a suitable in-house foster parent do they consider independent foster parents.  NAFP argued that that this approach unlawful.  Section 22C(5) Children’s Act 1989 requires that a local authority must place the child in the placement which is “in their opinion, the most appropriate placement available”.   NAFP argued that this requires councils to design their processes to identify the most appropriate placement available among all the possible options.  Therefore, councils could not lawfully give priority to in-house options.

NAFP referred to a range of other sources to support their construction of s.22C(5), including: guidance from the Department of Education on “the most appropriate placement” issued in June 2015; the welfare duty in s.11 Children’s Act 2004; Hansard; and Article 3 of the UN Convention on the Rights of the Child, which requires the best interests of the child to be a primary consideration when interpreting an ambiguous law.

Unsurprisingly, NAFP’s case was given permission.  It does not appear that NAFP’s legal team advanced any of the potential analogies to procurement law or the law of best value.    However, there’s obviously fertile ground for an argument that whenever councils are obliged to choose “the best” or “most appropriate” provider, they need to consider all the potentially appropriate options.  They should not cut out half the field by applying a blanket preference rule that is unrelated to either quality or price.

The Defendant’s case

The Defendant Councils and the Local Government Association (LGA) argued that neither s.22C(5), nor any of these sources constrained the process by which councils may pick the most appropriate placement.  They are therefore free to consider their own in-house providers first.  Of course, their decisions will, in individual cases, be subject to review on grounds of Wednesbury rationality.  There is no ambiguity in the legislation, and none of the other sources speak to how councils should exercise their discretion.

William Davis J pulls out a wildcard

The judge agreed with the Defendants and the LGA (intervening) that councils may consider their in-house providers first if they wish.  However, he went further than this, contrary to submissions from all the parties.

William Davis J came up with his own construction of s.22C(5).  He noted that s.22C(6) and s.22C(7) define the word “placement”  by setting down a hierarchy of different categories of placement.  A council must choose a kinship foster parent where it can.  If that is not possible, it should choose a local authority foster parent; then a registered children’s home; and then, as a last resort, another kind of placement that complied with the Regulations.  The judge’s reasoning was that the duty to choose the “most appropriate placement” only requires councils to choose the correct category of placement within the hierarchy.  He found that there was no duty in s.22C(5) to choose the most appropriate specific placement for a specific child within each category.

All of the parties disagreed with him.  They all agreed that choosing the most appropriate placement requires comparing specific placements within each category and considering the specific needs of the child.  That makes sense.  If s.22C(5) just boils down to “apply the hierarchy in s.22C(6) and s.22C(7)”, what is the point of ss.22C(5)?

However, the judge disagreed with all the parties and stuck to his own analysis of the section.  He was aware that he had gone off on a frolic of his own.  He therefore made it clear that, if he was wrong, he accepted the Defendants’ arguments.  These arguments present a far more sensible alternative basis for the same decision.

The result of his decision is that – for now – the duty in s.22C(5) is effectively redundant.  As long as councils apply the hierarchy in s.22C(6) and s.22C(7), they will already be choosing the “most appropriate placement” for the purposes of s.22C(5).  There is no longer any additional duty for them to consider whether the specific placement is the most appropriate for the specific child.  Of course, councils are still obliged to consider properly the individual child’s needs by other provisions in statutory regime.  However, this decision has removed all the content from the “most appropriate placement” duty itself.

In this case, the Defendant Councils were represented by 11KBW’s Peter Oldham QC.  Also for 11KBW, James Goudie QC acted for the LGA, intervening.

Hannah Slarks – Hannah.Slarks@11KBW.com

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