Grandmother’s bid for judicial review dismissed

Children|November 24th 2016

A grandmother who looks after her grandson has lost a bid for a judicial review of the local authority’s approach to her case.

The boy in question, referred to in the judgement as ‘R’, began living with his grandmother in October 2012. At the time he was  just18 months old.

At the Court of Appeal, Lord Justice Burnett noted:

“He has lived with [her] ever since in circumstances that are to her considerable credit. She has provided R with a stable and happy home.”

The boy had already been known to social workers for a number of months. His mother had a chaotic lifestyle and her relationship to R’s father was prone to violence.

Before she assumed full time care, R and his mother had regularly stayed at the grandmother’s home, sometimes for weeks at a time. The mother had a criminal record and in October 2012 faced imprisonment for aggravated burglary and other charges. Following a brief stay with a neighbour and uncle, on October 17 that year R went to live with the grandmother for what she initially believed would be a brief stay before the mother was granted bail and released.

But the situation changed. The mother pleaded guilty and was remanded in custody. The Judge explained:

“Once M had pleaded guilty to the offences, the whole scenario changed: and the Claimant was by that time aware that arrangements for R would be, if not permanent, longer term. R did not simply need somewhere to stay, he need[ed] a home for some time.”

But she soon became aware that she would receive no help from the local authorities, either Derby City Council or Hertfordshire County Council. Neither accepted any responsibility for R’s upkeep, they said, because the arrangement by which R lived with her was an entirely voluntary one. Both authorities have maintained that stance ever since.

Lord Justice Burnett explained:

“During the period since 17 October 2012, there has been no real question but that R will live with the [grandmother], unless and until [his mother] is able to offer him a home.”

Despite occasional suggestions that the grandmother, a plumber, did not want to keep R indefinitely, her behaviour suggested that she had actually accepted that she would be his long term guardian. R’s mother had given her consent to the grandmother making medical decisions for the boy and they had also discussed formalising her care of R via a residence order or similar arrangement. Such an order that would give her full parental responsibility.

When the mother was released for prison she was briefly considered as a parental figure but Derby City Council decided that she would be unable to provide a safe and stable home. She was asked to promise that she would not try and take R away.

Despite their refusal to provide the grandmother with financial support, both  Hertfordshire County Council and Derby City continued to monitor the situation for a period before concluding there was no need for any further involvement.

The grandmother claimed she was struggling to cope financially and eventually sought a judicial review of Hertfordshire County Council’s refusal to provide assistance. She argued that R should have been classed as a ‘looked after child’, under section 20 of the Children Act 1989, and therefore have been entitled to support. He would have this classification if he had been accommodated in foster for a period of a single night – and the grandmother had originally agreed to look after the child only on a temporary basis.

In July her application was dismissed by a Judge who accepted the authority’s claims that the mother had made her own private arrangements for R’s care when facing prison and had at no point involved the Council.

At the Court of Appeal, Lord Justice Burnett backed this conclusion. He explained:

“The terms of section 20 of the 1989 Act do not support the submission that, as a matter of principle, it should appear to a local authority that a child requires accommodation when any private arrangement only provides accommodation on a temporary or stopgap basis. On the contrary, the need for accommodation to be provided pursuant to section 20 will often arise as an emergency and for a short time, sometimes only for a day. The statute contemplates a child being accommodated for less than 24 hours under section 20, because it is only after the child has been accommodated for more than 24 hours that it becomes a looked after child.”

Her appeal was therefore dismissed.

R (on the application of Cunningham) v Hertfordshire County Council can be read in full here.

‘Grandmother and Child’ statue by Alan Wilson, photo by mrrobertwade via Flickr under a Creative Commons licence 

Author: Stowe Family Law

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