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Local authorities should not financially discriminate against foster carers who are related to the children they foster. That was the decision of the administrative court in R v Manchester council, ex parte L & Others and ex parte R & others.

The case concerned two applications for judicial review of Manchester council's policy regarding foster payments for children in care. In one case the maternal grandparents of three children were the children's long-term foster carers after care orders had been made and in the other the children were placed with their older half-sister on care orders after an independent social work assessment - meaning that the children were looked after within the terms of sections 22 and 23 of the Children Act 1989.

The issue was the legality of the policy which paid short-term foster carers who were friends or relatives of a fostered child at a significantly lower rate than other foster carers. The families were unhappy and said that:

(i) the policy used the family's sense of moral obligation to compel them to accept a grossly inadequate level of financial support, and was a financial disincentive to family members being foster carers because the level of support was lower than that for other foster children of similar ages

(ii) the policy was an attempt to apply financial pressure on family members to get them not to access local authority support

(iii) the policy did not comply with either article 14 of the European Convention on Human Rights (non-discrimination) or article 8 which imposes a positive obligation on the council to promote the right to respect for private and family life

(iv) the policy was an abuse of the council's dominant position in relation to foster parents and children and attempted to transfer the financial burden of looked-after children to their families and

(v) the policy excluded any flexibility to allow payment of the normal fostering allowances to relative foster carers in appropriate cases.

Mr Justice Munby agreed with the families, and allowed their applications but did not accept that the less than worthy motives attributed by them to the council were correct. He held that :

1. Section 23(2)(a) of the Children Act allowed councils to determine in their discretion what the framework would be for providing for fostering allowances. That discretion had to be:

1.1 applied to allow flexibility according to the needs of the individual children concerned

1.2 exercised in light of the aim of the statutory framework without reliance on irrelevant considerations, without disregarding relevant principles, without being perverse and without conflicting with any duties within the framework; and

1.3 applied to safeguard adequately the right to respect for family life in article 8 of the convention, and to avoid discrimination in breach of article 14 of the convention.

2. The council did not want to stop a relative or friend from applying for a section 8 residence order, and its policy wanted to ensure that a financial dependency was not created that would inhibit that. This was entirely in accordance with the key principle in section 26(3) of the Children Act, namely that all appropriate steps should be taken to ensure that children were placed with their families as far as possible, and was of course an entirely legitimate matter for the council to consider.

3. The council's policy was unlawful for four reasons:

3.1 it imposed an arbitrary and rigid cash limit on the amounts that could be paid to relatives who were foster carers

3.2 it fixed the level of payments to relatives who were foster carers at such a low level that there was inevitably a conflict with the welfare principle and the council's statutory duty

3.3 it was Wednesbury unreasonable* and

3.4 it fundamentally discriminated against short-term relative foster carers and the children in their care.

The legitimate aim of the council did not mean that it could sanction this policy.

4. The council's obligation under both the Children Act and the convention was to take all appropriate positive steps to ensure that children should live with their families. Differing treatment based on family relationships or treatment which had an additional impact on family members, could only be justified by counter-balancing factors of a compelling nature.

The council's policy failed when tested against classic public law principles, and therefore it inevitably failed under the convention. It did not satisfy the key convention tests of necessity and proportionality, thereby breaching articles 8 and 14.

Comment: This case clearly has implications for all social services departments which support children placed within their own families, where financial support is given at a lower rate than for children placed in foster families where there is no family relationship. The policies need to be reviewed urgently to ensure compliance with the Children Act and the European Convention on Human Rights.

* The 1954 case of Associated Provincial Picture Houses Limited -v- Wednesbury Corporation (1947) 2 All ER 680 is the key case in local government law, and indicates that in assessing a discretionary decision made by a public body a court will only interfere with the decision where it was so unreasonable that no other authority could ever have come to it.

Bernadette Livesey

Human Rights Solicitor

Walker Morris