| CHILDREN AND YOUNG PERSONS — Care of — Respite placements — Arrangements for Placement of Children (General) Regulations 1991 (as amended by The Children(Short-term Placements) (Miscellaneous Amendments) Regulations 1995), reg 13 — “Respite care: series of short-term placements of children” (LAC (95) 14)
R (L) v Merton London Borough Council; [2008] WLR (D) 191
QBD: Irwin J: 12 June 2008
The Arrangements for Placement of Children (General) Regulations 1991 (SI 1991/890), reg 13 did not impose a maximum of 120 days of respite care in a 12-month period, although Department of Health guidance (“Respite care: series of short-term placements of children” (LAC (95) 14) ) appeared to indicate otherwise.
Irwin J so held when granting permission to the claimants, a mother (L) acting on her own behalf and also as litigation friend to her 11-year old daughter (“D”), to apply for judicial review of the defendant’s decision to reject the possibility of arranging a residential placement for her daughter as being unlawful, but dismissing the claimants’ application.
D suffered from multiple disorders, resulting in a need for substantial care and support from her mother, who looked after her with two siblings at home. D’s problems led to significant difficulties which her mother found increasingly hard to manage. She sought increased respite care, and subsequently a residential placement, for D, but the defendant refused a placement on the grounds that it was not in D’s best interests to put her into institutional care, that a residential placement would be “prima facie interference with D’s rights under art 8 [of the European Convention on Human Rights]”, and that her respite had reached the maximum level of 120 days under the 1991 Regulations.
IRWIN J said that the court should not intervene in the absence of evidence that the local authority had failed to consider L’s suggestions or had made an irrational decision. There was no basis for either contention. It was simply a disagreement about the right answer. Therefore there would be no order to quash the decision. However, the defendant had misdirected itself in law on the important issue of whether or not reg 13 of the 1991 Regulations set a 120 days per year cap on respite care. It was beyond doubt that the defendant (and other local authorities) believed that there was such a maximum, but their interpretation of the law, although understandable, was incorrect, despite the fact that the Department of Health guidance appeared to suggest otherwise. The 1995 amendment of reg 13 by which 90 days had been extended to 120 days did not alter the underlying sense. Where there was a series of short-term placements at the same place, and their total duration did not exceed 120 days, it might be treated as a single placement, reducing the administrative burden on local authorities. |
