Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
NAFP, a not-for-profit organisation which represents independent and voluntary sector fostering providers, is seeking to challenge the Councils’ compliance with their duties under the Children Act 1989 (the “Act”). Section 22C(5) of the Act imposes a duty on the Councils, as local authorities, to place looked after children in the “placement which is, in their opinion, the most appropriate placement available”.
NAFP are seeking to challenge the Councils’ compliance with this duty on the basis of the Councils’ alleged failure to adopt a ‘level playing field’ approach where placements are considered with both in-house and independent and voluntary sector providers. NAFP are of the view that unless the Councils consider both in-house and independent and voluntary sector providers at the same time when determining the placements of looked after children that they are failing in their duty to find “the most appropriate placement available”.
In granting permission the Court observed that:
“Section 22C(5) of the Children Act 1989 imposes an important duty on authorities in the position of the Defendant and the Claimant has…shown sufficient grounds to permit the claim to proceed to a substantive hearing.”
Harvey Gallagher, Chief Executive of NAFP, said:
“We want to ensure that every child in care gets not just a good placement, but the placement that is right for them, the placement that can best meet their needs more than any other. Our concern is that the current placement finding processes used by many local authorities, including the Defendants, is unlawful and means that children will be missing out and may not get the very best home we can offer them. This has to change so that we are able to do better for children in care and give them the best possible opportunity to thrive in a loving home.”
Cynyr Rhys, of Anthony Collins Solicitors, said:
“Despite the Defendants robustly defending our client’s application, we are pleased that the Court has granted permission thereby recognising that this is an issue that merits further judicial consideration. The Defendants, together with other local authorities, exercise a fundamentally important duty under the Children Act 1989 which affects some of the most vulnerable children in society. Therefore it is crucial to ensure that the Defendants are exercising their duty correctly”.
For more information
Contact Cynyr Rhys.
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