Who pays?  Section 20 and accommodating children in need with their grandparents.

November 17th, 2016 by Andrew Sharland

Earlier this week, the Court of Appeal, in R (Cunningham) v Hertfordshire County Council [2016] EWCA Civ 1108, considered the issue of whether local authorities are required to fund placements of children with relatives where the child’s parents are, for whatever reason, unable to look after them.

R was an 18 month old child who lived with his mother.   He was subject to a child protection plan because of concerns about his welfare.  In October 2012, the police informed Hertfordshire County Council (“the Council”) that they intended to arrest R’s mother for aggravated burglary.  Prior to the arrest, the Council made contingency plans for R to be fostered by one of his uncles if necessary. However, upon arrest, R’s mother nominated R’s grandmother as his carer and he went to live with her in Derby.  The Council had no involvement whatsoever in this placement; it was a purely private arrangement. It was initially envisaged by R’s grandmother than this arrangement would only be temporary however, after R’s mother was sentenced to 27 months’ imprisonment, R remained with his grandmother.  The Council visited R on two occasions to check that he was safe and well but made clear, during these visits, that it had no responsibility to provide financial support.

R’s grandmother sought to challenge the Council’s decision not to provide her with financial support to look after her grandson. She asserted that R was a “looked after child” for the purposes of sections 20-22D Children Act 1989 and therefore the Council should be providing financial support.

At first instance, Hickinbottom J dismissed the application for judicial review. In his view, the Council did not come under any duty to accommodate R, pursuant to section 20 Children Act 1989 because, at no point did R require accommodation as he had a home with a family member.

The Court of Appeal dismissed the appeal concluding that the Council’s decision that R was not in need of accommodation was clearly correct given R’s grandmother’s offer of accommodation and support. The Court of Appeal distinguished three authorities relied on by the Claimant which she said indicated that the Council did have to provide financial support: Southwark BC v D [2007] EWCA Civ 182, R (Collins) v Knowsley MBC [2008] EWHC 2551 and R (A) v Coventry CC [2009] EWHC 34 (Admin). In contrast to the present case, the local authority, in all three of these cases, had played a significant role in the placement of a child. Such involvement was sufficient to indicate that the local authority had used its statutory powers under section 20 Children Act 1989 to place the child with the family friend or relative.

The Court of Appeal also rejected the Claimant’s argument that a duty to provide her with financial support arose because if she had not stepped in, the Council would have been fixed with a statutory duty to accommodate R and then support him as a looked after child. Whilst factually correct, that was not how the statutory duty in section 20 was couched; the duty arises only when it appears to a local authority that a child in need in their area requires accommodation. In the present case, the Council was entitled to conclude that in light of the private arrangement made between R’s mother and Grandmother, R was not in need of accommodation.

Whilst clearly correct on its facts, this judgment may create perverse incentives encouraging cash-strapped Councils to adopt a non-interventionist approach in similar cases in the hope that a family member steps in to look after a child whose parents are unable to look after them for whatever reason.


Andrew Sharland


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