R v MANCHESTER CITY COUNCIL, EX PARTE L & ORS : R v MANCHESTER CITY COUNCIL, EX PARTE R & ANOR (2001)
QBD (Admin) (Munby J) 26/9/2001
LOCAL GOVERNMENT - ADMINISTRATIVE LAW - FAMILY LAW - HUMAN RIGHTS
JUDICIAL REVIEW : FOSTER CARERS : RELATIVES : FRIENDS : SHORT TERM : LONG TERM : BOARDING-OUT ALLOWANCE : PAYMENTS : FINANCIAL DISCRIMINATION : DEPENDENCY : S.8, S.17, S.22, S.23 AND S.26 CHILDREN ACT 1989 : ACCOMMODATION : PLACEMENTS : RESIDENCE ORDERS : LOOKED AFTER : LOCAL AUTHORITY : FOSTER PLACEMENT (CHILDREN) REGULATIONS 1991 SI 1991/;910 : FINANCIAL REPORTS : FOSTERING ALLOWANCES : NATIONAL FOSTER CARE ASSOCIATION : NFCA : FOSTER CARE FINANCE : FCF : CARE PROCEEDINGS : WEDNESBURY UNREASONABLENESS : IRRATIONALITY : HUMAN RIGHTS ACT 1998 : EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1950 : EUROPEAN CONVENTION ON HUMAN RIGHTS : ECHR : ART.8 : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : ART.14 : PROHIBITION OF DISCRIMINATION : LEGITIMATE AIMS : PRESSING SOCIAL NEED : PROPORTIONALITY : NECESSITY
A local authority’s policy that financially discriminated against foster carers who were related to the children they fostered was unlawful.
Two joined applications for judicial review of the respondent council’s policy to pay those short-term foster carers who were friends or relatives of a fostered child at a significantly lower rate than other foster carers. Both applications concerned children who were looked after within the meaning of ss.22 and 23 Children Act 1989. In the first application, the maternal grandparents of three children were the children’s long-term foster carers and the children remained with the grandparents after full care orders were made. In the second application, the children were placed with their older half-sister when full care orders were made after an independent social work assessment. The issue was the legality of the policy. The applicants submitted: (i) the council’s policy was a financial disincentive to family members being foster carers and used their sense of moral obligation to compel them to accept a grossly inadequate level of financial support which was lower than the level determined by the council as necessary for the maintenance of other foster children of like age; (ii) the policy was an attempt to apply financial pressure on family members to move away from local authority support; (iii) the policy was discriminatory within Art.14 European Convention on Human Rights and failed adequately to implement the council’s obligation to promote the right to respect for family life guaranteed by Art.8 of the Convention; (iv) the policy was an attempt to transfer the financial burden of looked-after children away from the council and was an abuse of the council’s dominant position in relation to foster parents and children; and (v) the policy excluded any flexibility to allow payment of the normal fostering allowances to relative foster carers in appropriate cases.
HELD: (1) Section 23(2)(a) of the Act left the framework for providing for fostering allowances to the council’s discretion. That discretion had to be: (a) formulated and implemented to allow flexibility according to the needs of the individual children concerned; (b) 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 (c) formulated and exercised to safeguard adequately the right to respect for family life in Art.8 of the Convention and to avoid discrimination in breach of Art.14 of the Convention. (2) The applicants’ submissions that imputed less than worthy motives to the council were not accepted. (3) The council’s policy was driven by the principle that it was undesirable to create a financial dependency on it if that would disincline a friend or relative to apply for a s.8 residence order. That was an entirely legitimate consideration and was entirely in accordance with the key principle in s.26(3) of the Act, namely that all appropriate steps should be taken to ensure that children were placed with their families as far as possible. (4) The council’s policy was unlawful for four reasons: (i) it imposed an arbitrary and inflexible cash limit on the amounts that could be paid to relative foster carers; (ii) it fixed the level of payments to relative foster carers at such a low level that there was an inevitable a conflict with the welfare principle and the council’s statutory duty; (iii) it was Wednesbury unreasonable; and (iv) it fundamentally discriminated against short-term relative foster carers and the children in their care. None of those objections were met by the legitimacy of the council’s objective. (5) The council’s obligation under both the Act and the Convention was to take all appropriate positive steps to ensure that children should live with their families. Differential treatment based on family relationships or which had an additional impact on family members could only be justified by counterbalancing factors of a compelling nature. If the council’s policy failed when tested against classic public law principles, it inevitably followed that it would fail to pass muster under the Convention. In any event, the policy failed to meet the key Convention tests of necessity and proportionality, thereby breaching Arts.8 and 14 of the Convention.
Roger McCarthy QC instructed by Green & Co for the applicants. Ernest Ryder QC and Yvonne Coppel instructed by and for the council.
LTL 26/10/2001 : (2002) 1 FLR 43 : (2002) ACD 284 : Times, December 10, 2001
Judgment: Approved subject to editorial corrections - 39 pages
Document No.: AC0101975