Ed Mitchell: Councils’ duties to children in care are many and diverse

Ed Mitchell examines the latest decisions on local authorities’ responsibilities towards looked-after children, particularly those who arrived seeking asylum

All parents make mistakes and local authorities, when it comes to the children in their care, are no different. But what can differ is the emotional health of the children involved. Many looked-after children carry severe emotional scars so that parenting mistakes can have more serious consequences. For this reason, it is important for councils to learn from the errors and good practice of others.

Welfare first, funding second

The courts are never impressed when funding disputes overshadow a child’s welfare. The latest example is A v Leicester Council (July 2009). Originally from Somalia, 17-year-old A was looked after by Hillingdon Council. She was isolated in the UK save for friends in Leicester, so left her Hillingdon hostel to live with them. Hillingdon argued that, as A had voluntarily left its accommodation, Leicester Council was now responsible for A. But the High Court disagreed. Hillingdon could not lawfully decide that its responsibilities had ceased without an up-to-date assessment of A’s needs, which had not been carried out. Additionally, both councils were required by law to work together to ensure that the girl’s welfare was not harmed as they argued over funding responsibilities. They should have developed an interim plan for the provision of services pending resolution of their disagreement.

Passports and pitfalls

K (a Child) (March 2009) concerned a 14-year-old, K, in local authority care. K’s parents refused to hand over his passport. A judge directed that the authority was entitled to apply for a fresh passport. The Court of Appeal dismissed the parents’ appeal. The direction was justified as the authority was entitled to custody of the passport of a child in its care.

There comes a point when a child needs to be able to decide whether to take certain risks. This situation confronted the High Court in Brent Council v S (July 2009). S was a 17-year-old Afghan who was looked after by Brent. S believed that his family were in a camp somewhere in Pakistan. He wanted to find them and had saved up the airfare. Brent thought it was not in S’s best interests to travel to Pakistan for safety reasons and the risk he might not be re-admitted to the UK. To prevent S leaving, Brent applied under the inherent jurisdiction of the High Court for a passport order and an order preventing S from leaving the UK. The High Court refused to grant the orders. While Brent had acted properly by seeking a ruling, S’s welfare, given his strong psychological need to find out his family’s fate, would best be served by permitting him to go to Pakistan.

Listen to me

Fourteen-year-old B’s foster care placement broke down, and B’s local authority decided to seek a residential care placement instead. In November 2009, the local government ombudsman found maladministration and recommended £1,000 compensation because the council had not paid sufficient regard to the views of B, who would have preferred to remain in foster care. The council decided to seek a residential placement following a report of a psychiatrist who had never met B, who was not told of the decision until after funding had been secured. Accordingly, B’s views could not have been taken into account during the decision-making process.

Ed Mitchell is a solicitor and editor of Social Care Law Today

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