B (A Child)(Designated Local Authority)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lady Justice Asplin,Lord Justice Lewis |
| Judgment Date | 10 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1673 |
| Date | 10 December 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/0507 |
[2020] EWCA Civ 1673
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING IN MANCHESTER
HHJ Jordan
MA19C00910
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lady Justice Asplin
and
Lord Justice Lewis
Case No: B4/2020/0507
Nick Goodwin QC and Shaun Spencer (instructed by Salford City Council) for the Appellant
Brendan Roche QC and Fiona Holloran (instructed by Lincolnshire Council) for the 3 rd Respondent
Frances Heaton QC and Kerry Holt (instructed by Cheshire East Council) for the 4 th Respondent
Hearing date: 28th October 2020
Approved Judgment
This is an appeal from an order made by HHJ Jordan at the Manchester Civil Justice Centre on 20 February 2020, by which Salford City Council (‘Salford’) was designated as the local authority in respect of a care order which was made the same day in relation to a girl (‘J’) who was then 15 years old.
Each time a care order is made pursuant to Section 31 Children Act 1989 (CA 1989), the court must designate the local authority in whose care the child, or children, in question will be placed. The designated local authority is thereafter not only subject to various statutory duties in relation to the child in question, but also bears the consequent financial responsibility for him or her. At one end of the scale this may mean low key support for the parents of a child living at home who is in need of some local authority assistance, and at the other, as here, secure accommodation for a child who has become a danger to herself or others at considerable cost.
Section 31(8) CA 1989 provides:
The local authority designated in a care order must be:
a) The local authority within whose area the child is ordinarily resident; or
b) Where the child does not ordinarily reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which order is being made.
Section 31(8) CA 1989 is qualified by section 105(6) CA1989 which provides that when determining the ordinary residence of a child, any period in which he or she is being provided with accommodation by, or on behalf of, a local authority shall be disregarded. (Section 105(6)(c)) (‘the disregard’)
This case turns on whether J was accommodated by Lincolnshire City Council (“Lincolnshire”) for the purposes of the disregard provision. It is common ground that during the course of 2018–2019 J lived, first in Lincolnshire with her adoptive father (“the father”), then in Cheshire East with her birth brother (“DB”) and finally in Salford with her birth mother (“the mother”). The appeal centres upon a dispute between these three local authorities as to whether those periods of time when J lived with DB and with her mother should be disregarded for the purposes of determining her ordinary residence and therefore in designating the appropriate local authority.
The judge held that the appellant, Salford City Council (“Salford”), the authority which made the ultimate application for a care order, should be the designated local authority. Salford now appeals following permission having been granted by Peter Jackson LJ. Salford submits that the local authority which should properly have been designated by the judge was Lincolnshire where J spent ten years of her life and where her father, the only person having parental responsibility, continues to live.
In determining how, if at all, the s105(6) disregard provision bites in the present case it is necessary to consider:
(1) Whether J had become an accommodated child pursuant to s20 CA 1989 and if so, when? That in turn requires the court to decide: (a) when J left Lincolnshire upon the breakdown of her relationship with her father and moved to stay with DB in the Cheshire East area, did she become an accommodated child under Section 20(1) CA 1989, notwithstanding that there had been a failure on the part of Lincolnshire to complete the relevant formalities; and (b) if so, when she thereafter moved to live with the mother in the Salford local authority area did that remain the case?
If J was not an accommodated child when living with DB (and therefore not accommodated when living with the mother):
(2) Did J live with either DB or her mother under a private fostering arrangement pursuant to S66 CA 1989?
(3) Alternatively, were either, or both, of the placements private family arrangements?
(my underlining)
A rapid and not over sophisticated review?
Before turning to the merits of the appeal, I intend to deal with a case management issue raised by Lincolnshire. Mr Roche QC on behalf of Lincolnshire submits that, even if it could be said that the judgment lacked detailed analysis, the authorities require the court to conduct only a rapid and not oversophisticated review when faced with a dispute as to the designation of a local authority. This, he said, the judge had done and this court should not now go behind the judge's decision. In support of this submission, Mr Roche raises an important matter, namely the need to prevent a repeat of what has happened in this case, that is to say, the expenditure of significant time, effort and cost by each of the three hard-pressed and cash-strapped local authorities incurred in the resolution of this dispute. I would add to that, the need to avoid a disproportionate amount of court and judicial time being spent on resolving such an issue.
In Y (a Child) [2019] EWCA Civ 2209, I said as follows:
“4. Such disputes between local authorities consume both time and scarce financial resources, which are better spent on the child(ren) at the centre of the argument. Designation disputes are now only rarely brought before the courts following Thorpe LJ having said in strong terms in Northampton CC v Islington Council [1999] EWCA Civ 3031 that:
‘In my opinion the judge's function is to carry out a rapid and not over sophisticated review of the history to make a purely factual determination. It is a question of fact and not of discretion.’
5. This was a sentiment rehearsed by Ward LJ 12 years later in Re D (a child) [2012] EWCA Civ 627:
‘The other aspect of the purpose to be served which I highlighted in the judgment of Thorpe L.J. at [18] above is that the sections must provide a simple mechanism to determine a question of administration. The enquiry outlined above is simple enough. The budgets of the Social Services departments are already stretched enough by meeting the cost of care that they should not be further depleted by squabbles of this kind: better remember that there are swings and roundabouts and you may win one today but you will certainly lose another tomorrow.’”
Mr Goodwin QC on behalf of Salford emphasised that the local authority he represents is well aware that such disputes are costly, distracting and run contrary to established authority. Further, he accepted that the financial implications for Salford as a local authority have no legal relevance in deciding the outcome of a designation dispute. Mr Goodwin explained that, notwithstanding that being the case, given the implications for Salford, the authority had felt unable to accept the judge's decision on the pragmatic ‘swings and roundabouts’ approach endorsed by Ward LJ. Mr Goodwin told the court that before the crisis in J's life which had precipitated applications for care, secure accommodation and deprivation of liberty orders, she was a child who had spent just 3 months of her 16 years in their local authority area. The financial consequence of Salford becoming the designated local authority for J in financial terms was, at the point the appeal was lodged, estimated to be in the region of £550,000 including the cost of £30,000 per month to cover the cost of her placement at a secure unit.
Far from there having been a “rapid and not overly sophisticated review of the history to make a purely factual determination”, both the judge at first instance and this court have been presented with highly technical skeleton arguments relating to Section 20 Accommodation, Private Fostering Arrangements and Family Arrangements. In addition, sheaves of case notes and social work records have been filed which each side prays in aid in support of their respective submissions as to whether J was (or was not) accommodated by Lincolnshire during the months she lived in the Cheshire East and then Salford local authority areas.
As compared with the 1990s there has been a loosening of the hitherto tight regulation of social work records. Previously access to social work records was permitted only following a public interest immunity hearing (see Durham County Council v Dunn [2012] EWCA Civ 1654). This change in approach does not mean, however, that it should now become the judge's function to wade through reams of records from three different authorities, which records, by their very nature, combine opinion mixed with factual information.
The judge should have had the benefit of a single, agreed, objective chronology to work from, supported by statements addressing the test where appropriate. The history in this case was unusually complicated and it was clear that the decision as to designation would turn on the application of the disregard provision. In those circumstances it would have been prudent, once each of the local authorities had had an opportunity to consider each other's case notes, for they or their representatives to make a concerted attempt to agree a chronology, or failing that, to produce a single chronology...
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