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1.5.5 Guidance on Determining Which Local Authority is Responsible for a Child

SCOPE OF THIS CHAPTER

This guidance considers the factors which will determine which local authority is responsible for the provision of services for a child and offers further guidance on the way in which services may be provided in certain cases where disputes may arise. This guidance should not be relied on as a statement of law.

In all cases where there is an unresolved dispute between Lincolnshire and one or more other local authorities with regard to responsibility, the assistance of the Directorate's Legal Advisers should be sought.


Contents

  1. Background
  2. Guidance


1. Background

In most situations the local authority which has responsibility to provide services for a child will be the local authority within which the child is. This will apply even if the child does not normally reside in the area of the local authority where he/she is when the responsibility arises.

In particular, this will apply to the following sections of the Children Act:

  • Section 17 - duties to safeguard and promote the welfare of children who are in need by providing an appropriate range and level of services;
  • Section 18 - duties to provide day care for children in need aged under 5 and not attending school as is appropriate;
  • Section 20 - duties to provide accommodation for children in need who have no one with parental responsibility able or willing to care for them;
  • Section 24 - duties to advise, assist and befriend a child or young person, aged under 21 who is or has been: looked after by any local authority; accommodated by a voluntary organisation; accommodated in a registered children's home; accommodated by a health or education authority, or in a residential care home or nursing home for three months; or privately fostered, at any time after their sixteenth birthday.

Certain sections of the Children Act give responsibility in particular circumstances. The main ones are:-

  • Section 31 - apply for and be designated in care proceedings with regard to children who are likely to be suffering harm. Whilst any local authority can apply for an order under s.31, a care order (or interim care order) should designate a local authority which must be a) the authority within whose area the child is ordinarily resident; or b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order was made (s.31(8) CA 1989);
  • Section 33 - duties to receive into care children for whom it is designated in care proceedings. See Section 31;
  • Section 35 - duties to advise, assist and befriend children for whom it is designated in supervision proceedings. The designated authority will be the authority in whose area the child lives or will live, or any other authority who agrees to be designated in the supervision order (Schedule 3 Paragraph 9 (1) CA 1989);
  • Section 47 - duties to make enquiries with children suffering or likely to suffer significant harm and to decide whether to take any action to safeguard or promote their welfare. This responsibility falls to the local authority where the child lives or is found;
  • Section 14A - duties to investigate upon receipt of a written notice of intention from an individual to make an application for a special guardianship order. If the child in question is being looked after by an authority, that is the relevant authority. Otherwise it will be the authority in which the individual is ordinarily resident (s.14A (7)and (8)).

This list is not intended to be an exhaustive list of all local authority duties relating to children in their area. However it does indicate the main duties and those where there may be some question as to which local authority is responsible.


2. Guidance

In most cases the test of 'ordinarily resident' will be easy to determine and will suffice in determining responsibility. It will simply be a case of establishing where the child usually lives, which will in turn in most cases be the address of his parents or those with parental responsibility. If the parent has changed address shortly before the required intervention it is unlike that he/she (or consequently the child) will have changed their ordinarily resident status just my moving. Case law indicates that 'ordinarily resident' means the same as 'habitually resident' and to change the area in which they ordinarily reside there needs to be evidence of passage of time (probably several months) and an intention to permanently settle in the area (e.g. registering with a local GP, applying for a council tenancy).

Where the child is abandoned, that is where there is, or appears to be, no one with parental      responsibility able to care for the child, then responsibility rests with the local authority within      whose area the child is found.

Where it is that the child is 'ordinarily resident' in another local authority area and accommodation has been provided under Section 20, then the other local authority may subsequently take over responsibility for the child.

Problems are likely to arise where those with parental responsibility live in different local authority areas or move to a differing local authority area after the service is provided. This may be further exacerbated if the actual service provided is within the area of a third local authority.

In all cases the test of ordinary residence is clarified by s.105 (6) Children Act. This states that when considering whether a child is ordinarily resident in an area you should disregard any periods where the child resided in a school or institution, in a place under a Supervision Order requirement, or when he was accommodated by or on behalf of a local authority"

Similarly, this is implied by Section 24(5) of the National Assistance Act, 1948 in relation to residential accommodation, namely: "where a person is provided with residential accommodation, he shall be deemed to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him."

In certain cases involving care proceedings, where a child is not 'ordinarily resident' in any local authority area, the court may make the Care Order to the local authority within whose area the circumstances giving rise to the care proceedings first arose.

Guidance on the provision of services

Services to children who are clearly 'ordinarily resident' in a different local authority to Lincolnshire and are able to return to that local authority area (e.g. following police investigation; without finance or means of travel) should be offered a service to enable them to return to their own local authority area.

However, discussion should take place with the local authority concerned prior to the service being provided and wherever possible agreement being reached to reimburse the costs of any service provided (e.g. rail warrant) and to assume responsibility for the provision of any further service. Where this occurs out of hours, Emergency Duty Team (EDT) should negotiate with the EDT or similar service of the home authority.

In some circumstances, for example children from other countries, it may not be possible to identify another authority within whose area the child is ordinarily resident. In such cases, Lincolnshire may have to assume full responsibility, even though an aim may be to 'repatriate' the child either in the short or long term.

Whilst local authorities have a clear duty under Section 24 to prepare children for leaving care and to continue to support them once they have left care, the duty to provide after care rests equally on the authority within whose area the young person subsequently is. Case law suggests that the responsibility does not automatically transfer back to the authority who formerly looked after the young person and does in fact rest primarily with the local authority where the child is, even if the former local authority had previously placed the young person in the area of the local authority where the child now is. Thus, for example, a child placed by another local authority within Lincolnshire aged 16, may, if their former authority chooses not to, become the responsibility of Lincolnshire to provide after care services, if they still live or want to live in Lincolnshire, when they are no longer looked after.

It will always be good practice to put the provision of services before the determination of responsibility. Thus, where an assessment of need, identifies that an immediate intervention is required, failure to agree which local authority is responsible for the child should not prevent the service being provided. The need to safeguard the child's welfare must be paramount in all such cases.

End