Bristol Legal news: Judicial review defence

Bristol Legal news: Judicial review defence

Bristol City Council and two other authorities successfully defend a judicial review brought by the National Association of Fostering Providers (NAFP).

On 15 December 2015 Justice William Davis handed down his judgement in the case of National Association of Fostering Providers v Bristol City Council and others[: [2015] EWHC 3615 (Admin)] He dismissed the claim that the local authorities’ process for the placement of children in foster placements was a breach of their statutory duty.

The claim

NAFP claimed that the Defendant local authorities failed to comply with the duty set out in Section 22C(5) Children Act 1989  to seek the ‘the most appropriate placement’ for children because the local authorities operate policies which mean that in many cases they do not consider a placement with an independent foster provider unless and until no placement can be found with the local authority’s in-house providers of foster care.  NAFP argued that, in order to be able to consider which placement is “the most appropriate” a local authority must consider all in-house and independent fostering providers equally before making any placement.
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The decision

Justice William Davis ruled that the challenge to the lawfulness of the policies of the Defendant local authorities was misconceived.  The claim for judicial review was dismissed and NAFP were ordered  to pay the authorities’ legal costs.  NAFP’S request for leave to appeal was refused. 

Interestingly the judge decided that the “most appropriate placement” was defined within section 22C(6) of the Children Act 1989 as being the most appropriate placement from the specified list of a placement with someone connected to a child, a local authority foster parent, a children’s home, or other arrangements that comply with the regulations and there was no further duty on the local authority. This interpretation was not put forward by the authorities who argued that the section 22C duty included a requirement to consider the individual child’s needs. However, Justice Davis decided that the welfare and interests of the child were protected by other sections of the Act, and stated that ‘The word “placement” is defined in Section 22C(6).  It is that definition which is critical’.

Justice Davis also considered the claim on the alternative basis proposed by the Defendants i.e. that in Section 22C(5) the word “placement” refers to the particular placement for the individual child.  He concluded that, in those circumstances, the duty imposed by Section 22C(5) does not require a local authority to contact all providers of potentially appropriate placements at the same time for every looked after child because the duty is not a procedural duty but an outcome duty.  How a local authority goes about fulfilling that duty is a matter of policy within the discretion of the local authority subject to any express regulatory provisions. The word “appropriate” implies an exercise of judgment by a local authority which is subject to the “opinion” of the local authority.

Justice Davis concluded that what the NAFP sought was local authorities to have to contact “all potentially appropriate placements” when making an accommodation decision, but what is “potentially appropriate” should be determined by the local authority.