Case No. Case-No.-CO-5942-2017

since it is an alternative to Ground 2. Ground 1 87. This ground is now conceded by the Council as I have already noted. 88. However, Mr Carter submitted that the Council had discharged its duty by arranging for the cousins to return to their uncle’s flat in October 2017 and submitted that it was a matter for the Council’s judgment that the accommodation was suitable. 89.In the light of the additional disclosure provided after the hearing began, I am not satisfied that the Council discharged its duty under s. 20 given the failure to deal with the root problem of finding suitable accommodation which was apparent from the 2016 viability assessment. Ms Low, who makes clear her view that she thought K was being provided with suitable accommodation and made himself homeless says in her statement:“Given the possible traumatic experiences that K may have experienced in being separated from his family and in his journey from Sudan to the UK, it is our view that K’s uncle who K identified as the only member of his family in the UK who could provide care for him would be best placed to continue to care and support K. Whilst the Local Authority acknowledge that K has reported difficulties in the relationship with his uncle, overall they seem to get along well. K’s main objection stems from the size of the shared accommodation, however obtaining larger housing takes time and K should not have given up the accommodation and family care that he was receiving because of this.”90.However, to my mind this ignores the accommodation as the cause of the problems and does not acknowledge that K was sufficiently unhappy with the Council’s proposals to prefer to sofa surf or to sleep rough in the difficult circumstances he has described.91.To the extent necessary, therefore, I consider the assessments that were made in the 2017 CFA were unreasonable having regard to the earlier contrary assessments of the inadequacy of the flat and the facts. It is questionable also whether the action of the Council protected K’s welfare and, in my view, it appears to have put it at risk.92.I will return to aspects of the s. 20 duty under Ground 2. Ground 2 93. As already mentioned, this ground was the focus of argument at the hearing. 94. Ms Williams, for K, submitted that: (1) The Council not only failed to acknowledge its s. 20 duty but if, as it now contends, K left care and ceased to be eligible on 11 October, did not follow the requirements imposed by law as to the ending of the s. 20 duty and leaving care; (2) In any event, ignoring the characterisation which the Council gave to its actions on the ending of K’s placement at the Crash Pad the Council in fact continued to apply its s. 20 duty and K remained a looked after child since - (a) In fact the Council took a central role in managing the ending of the placement and the move back to the uncle’s flat consistently with continuing to discharge a duty under s. 20 (see D v Southwark and Lady Hale in G v Southwark ); (b) It did not in any event comply with the duties required to end care (above) and in particular the duty under reg. 39 of the 201 Regulations, since it did not recognise the duty under s. 20 at the time; and (c) K was not able to return to suitable accommodation in which case s. 20(1)(c) applied and he remain a looked after child. 95.Mr Carter, for the Council submitted that:(1)The Council’s duty under s. 20 ceased, and K ceased to be a looked after child, when Social Services secured the return of K and his cousin to U’s flat;(2)K was looked after for a total period for 9 weeks and 1 day, ending on 11 October 2017 and therefore failed to meet the 13-week eligibility criterion to be considered a FRC under s. 23C.96.The Council’s submissions echo those of Southwark in D v Southwark, above, at [38] and [40] where Southwark contended that since it had arranged accommodation for the child with a former partner of her father’s it had discharged its s. 20 duty. Smith LJ rejected this and stated: “49 We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to ‘side-step’ that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. … However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. … If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all. 50 In the present case, the local authority took a central role in making the arrangements for S to live with ED. It directed the school that the father must not be allowed to take S away. It arranged a meeting attended by all the relevant parties. The father was told that he must have no contact with S. Those factors are far more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement. The father consented to the proposed arrangement with ED. S was consulted as to her wishes. Mr Dallas contacted ED to ask her if she would take S in. Mr Dallas delivered S to ED's home and checked that the arrangements were satisfactory. Those factors were equally consistent with an exercise of statutory powers as with the making of a private arrangement. However, there was no contact between ED and either parent. Mr Dallas said nothing to ED, either on the telephone or the following day at his office, about the arrangement being a private one, in which she would have to look to the parents for financial support or to Lambeth for section 17 discretionary assistance. Far from it, he gave her to understand that Southwark would arrange financial support. In our judgment, the judge was quite right to conclude that this was not a private fostering arrangement. Indeed, it is hard to see how he could have come to any other conclusion.” 97.See to similar effect the judgment of Mr Michael Supperstone QC (as he then was) in R. (Collins) v Knowsley MBC [2009] 1 F.L.R. 493 at [30]-[34]. When presented with a submission that the circumstances there were distinguishable from those in D v. Southwark, similar to those advanced by Mr Carter here, he held:“30 Mr Cragg submitted … that the Southwark case was decided on its specific facts in circumstances where a social worker expressly requested that the Claimant look after a child who otherwise would have had nowhere to live; by contrast, he submitted, in the present case the Claimant already had somewhere to live when the Defendant became involved and therefore a duty under s. 20 did not arise.31 In my view there is no material distinction between the two cases. Until 26 November 2003 the Claimant was not living with the Leydens other than as part of “a temporary arrangement”. On that day the Defendant did play a central ( or “major”, see Southwark , para 49) role in allowing the Claimant to stay with Mrs Leyden when the Claimant said that she wished to live with her. Having ascertained and taken into account the Claimant's views, Ms. Joyce spoke to Mrs Leyden, informed her what the Claimant wanted and, I infer, asked her whether she was agreeable to it. Further on various occasions between 26 November 2003 and January 2004 Ms. Joyce suggested and arranged and re-arranged a Planning Meeting to plan for Sarah's future. Thus through Ms. Joyce the Defendant played and intended to continue to play a significant role in the arrangements for the Claimant's future that included her living with Mrs Leyden.32 Ms. Joyce says that she “ensured that Mrs Leyden was claiming all the relevant benefits in respect of Sarah” (Witness Statement, para. 11). It is reasonable to infer that is what she told Mrs Leyden. However the benefits Mrs Leyden received were limited to section 17 discretionary assistance. It was not explained to Mrs Leyden that she would not be receiving financial support from the Defendant for looking after the Claimant because the Defendant was not responsible for the Claimant ( as she should have been told if that was the Defendant's position); rather she was left in the unsatisfactory position where she agreed to allow the Claimant to live with her permanently, but was not told the basis on which that would be, namely, one that would not involve the Defendant or any other party being obliged to provide financial support.33 I am satisfied that as at 26 November 2003 the Claimant, who it is agreed was a child in need, required accommodation as Mr Collins was at the time “prevented” from providing her with suitable care. After his death on 16 December 2003 there was no person who had parental responsibility for her.34 In my judgment, in the circumstances of the present case, the Defendant did have a duty to provide accommodation to the Claimant under s.20 of the 1989 Act and I find, on the facts, that a placement was made with Mrs Leyden under s.23(2) .”98.In R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 535 Lady Hale referred to the Southwark case at [38] in the following terms:“As the social worker had prevented the father from taking the child home from school, had taken the lead in making the arrangements, and had told the woman that financial arrangements would be made for her, it was not difficult to conclude that the authority had in fact been discharging their duties under section 20 and could not escape their financial liabilities.”99. In