Local authorities do not need to consider all available placements for children, judge rules

A judicial review found that local authorities do not have a duty to consider independent fostering agencies when placing a child

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Local authorities do not have to consider all available placements for children in their care, a judge has ruled.

In a judicial review brought by the National Association of Fostering Providers (NAFP) against three local authorities, Justice William Davis ruled against the organisation’s claim that the duty on local authorities to seek the “most appropriate placement” for a child meant they must consider all in-house and independent fostering providers.

The judge argued that the “most appropriate placement” was defined within section 22C(6) of the Children Act 1989 as being a placement with someone connected to a child, a local authority foster parent, a children’s home, or other arrangements that comply with the regulations.

“The duty does not involve any requirement to make a particular kind of search of any one of the placements identified in Section 22C(6),” the judge ruled.

The review was brought forward after the NAFP felt local authorities had to consider in-house and external fostering providers equally, or they would have failed in their duty to provide the most appropriate placement.

Outcome duty

The NAFP, the Local Government Association (LGA) and three local authorities involved in the case rejected the judge’s interpretation of Section 22C of the Children Act, which they argued include a duty to consider the individual child’s needs. However, Justice Davis argued that the welfare and interests of the child were protected by other sections of the Act, and the Act’s definition of placement was “critical”.

What was the review about?
The review was about whether local authorities met their duties in Section 22C(5) of the Children Act 1989, and what the “most appropriate placement” as defined in the legislation meant for local authorities. The judge ruled that placement was defined in Section 22C(6) as “kinship foster parent; local authority foster parent; children’s home; some other arrangements”. He ruled that the phrasing of ‘appropriate’ implied an exercise of judgment by a local authority, and there was no duty in the act to look at specific type of providers for placements. The review was about where authorities should look after a decision was made they should be placed in care, and not about the proceedings before this point.

Justice Davis added: “The duty is not a procedural duty. It is what the LGA term an outcome duty. How a local authority goes about fulfilling that duty is a matter of policy within the discretion of the local authority subject to any express regulatory provisions…The word ‘appropriate’ of itself implies an exercise of judgment by a local authority. Moreover, the judgment is one subject to the ‘opinion’ of the local authority.”

He concluded that what the NAFP sought was local authorities to have to contact “all potentially appropriate placements” when making an accommodation decision, but what is “potentially appropriate” should be determined by the local authority.

Best for children

Harvey Gallagher, chief executive of the NAFP, said he took the judgment with a “heavy heart”, and called for education secretary Nicky Morgan to address the fact that the “Children Act is about getting what is best for children, but it seems it may not have been written in a way that reflects that”.

“The judge has taken a view in his verdict that the ‘most appropriate placement’ means no more than which type of care placement is chosen, rather than the specific placement which meets an individual child’s needs best. Neither NAFP, nor the LGA, nor the local authorities agreed with this view. This must call into question how the law has been drafted,” Gallagher added.

When the review was first announced in August 2015, the LGA claimed the NAFP was not fighting for the best interests of children, but was concerned about the financial interests of independent fostering providers.

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