The local authority responsible for providing financial and other support for a child under the Children Act 1989 was any authority which looked after the child or, if the child was not a looked after child, the local authority in whose area the child was living.

The Court of Appeal so stated when allowing in part the appeal of Suffolk County Council from the decision of Judge Butler QC given on 23 January 2012 sitting in the Nottingham County Court declaring that Suffolk County Council was responsible for providing financial assistance and other services in respect of two children, HB and CY.

Originally the two children had lived with their natural parents in Nottingham and had been helped by Nottingham County Council (“Nottinghamshire”). Subsequently they were placed with PR and CS pursuant to an interim residence order and moved to live with them in Suffolk. The two local authorities agreed that the appropriate course was to make a special guardianship order but disagreed as to which authority would be responsible for providing financial and other support. At first instance counsel for Suffolk County Council (“Suffolk”) conceded that the court was bound by the decision of Black J in GC v LD [2010] 1 FLR 583 to hold that Suffolk was responsible.

HEDLEY J, giving the judgment of the court, said that on appeal counsel had accepted that GC v LD [2010] 1 FLR 583 correctly explained the present law. His Lordship agreed with that. The key question in determining which local authority was responsible was whether or not the child was looked after by an authority: if yes, then that was the responsible authority, but if no, then the responsible authority was the one in whose area the child was living. By section 22(1) of the Children Act 1989, as amended, a child who was looked after was either (a) in the care of a local authority or (b) was provided with accommodation by that authority. A child was in the care of the local authority if the child was subject to a care order whether final or interim: section 105(1). A child was provided with accommodation if he came within either section 23(2) or section 23(6) of the Act. Crucially, however, the child would cease to be a looked after child if parental responsibility was vested in another by the making of a residence order or a special guardianship order. However, this was qualified by powers given to local authorities to co-operate with each other, to use another authority to discharge functions or simply to carry out tasks in another area. Whatever the possible challenges to the intellectual foundations of the law might be, it did as presently expressed provide a degree of certainty and allowed a degree of pragmatism in the carrying out of local authority functions in “out of area” placements.

CS had been a looked after child, pursuant to section 20(1)(c) of the 1989 Act, until 4 October 2011 when the interim residence order was made, conferring parental responsibility on HB and CY: thus Nottinghamshire had been responsible for CS up to 4 October 2011 and Suffolk had been responsible thereafter. KS had never been a looked after child having stayed with his mother until being placed with HB and CY: thus for so long as he had lived with his mother Nottinghamshire had been the responsible authority but on the making of the interim residence order those responsibilities had passed to Suffolk. That analysis was now accepted by all as correct.

The statutory framework was intended to permit (and, as his Lordship thought, to encourage) co-operation between authorities, which had, until now, been singularly lacking in the present case. Nottinghamshire had done all the preliminary work and then sought to pass on its implementation (and funding) to Suffolk. It appeared that Judge Butler QC in the hearing was disposed to the view that Nottinghamshire was entitled so to act. Special guardianship was potentially a very effective way of securing kinship care without on the one hand distorting family structures by adoption and without on the other leaving the child as a child in care with all the consequences so often resented by a growing child who felt stigmatised. It was essential both the local authorities in “out of area” placement should co-operate with each other as early in the process as was practicable in the particular case and also that the court was clear about its role and powers. They might not be as extensive as was thought or as a judge might wish but his Lordship had no reason to think that the judge could not make a valuable contribution to the process as was often done in both adoption and care cases where the court had the confidence of the parties involved.