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Placement of child with relatives under section 38(6) Children Act 1989.

Re A, Cardiff v K S C S & A

High Court Family Division (Munby J)

20 April 2009 [2009] EWHC 865 (Fam)

A was a one-year-old baby who had been removed from her parents. Assessments concluded that the parents would be unable to care for her and her great-grandmother and aunt put themselves forward as permanent carers. All parties agreed that the placement was viable and that the likely final order would be a special guardianship order. The case came before the justices shortly before Christmas and the family wanted the child moved from foster care immediately. The local authority was not prepared to agree a placement under Reg 38 of the Fostering Services Regulations 2002 as it believed that the aunt had a conviction, which might mean she could not be approved as a foster carer. The local authority suggested that A be placed with her relatives under residence and interim supervision orders; the family and Children's Guardian wanted the local authority to retain parental responsibility under a care order to support the placement and to manage contact with the parents, which was considered a potential difficulty.

The justices made an interim care order together with an order for assessment of the child under the Children Act 1989, section 38(6), to provide the court with evidence of how the child had settled with the aunt and great-grandmother before the making of a special guardianship order. The local authority appealed, claiming that the court had no power to make such an unregulated placement with carers who had not been assessed as foster carers.


Munby J held that this arrangement was within the power of the court under section 38(6). It was not a 'placement' by the local authority and so section 23 of the Children Act 1989 did not apply. There was therefore no requirement that the great-grandmother and aunt be approved as foster carers. It was not an 'unregulated' placement as it was 'under the continuing control of the court'.


The decision about the placement for a child in a local authority's care is that of the local authority alone. A familiar exception to this is an order for assessment of a child under section 38(6), when a court requires a local authority to place a child with a parent in a residential assessment unit. Assessment units are regulated and inspected, and the placement will involve constant monitoring and supervision by experienced staff. The unit will enter into an agreement with the local authority and with the parents, and will bring the placement to an end if the care of the child is inappropriate. A placement with a family member has no such safeguards for the child. A placement of a looked after child by the court is not one envisaged or provided for by the Regulations and there is no guidance on how a local authority should treat such a placement. The local authority will not have the duties under Reg 35 of the Fostering Services Regulations to supervise the placement, nor the power under Reg 36 to terminate the placement if it becomes unsuitable. As the placement is 'under the continuing control of the court', it is not clear whether the local authority can exercise any control in these circumstances over the care of the child for whom it retains parental responsibility.

Alexandra Conroy Harris, BAAF's Legal Consultant, prepared these notes
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Title Annotation:England and Wales
Author:Harris, Alexandra Conroy
Publication:Adoption & Fostering
Geographic Code:4EUUK
Date:Sep 22, 2009
Previous Article:Exploring kinship care through practitioner collaborative enquiry.
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