C (A Child) v Plymouth County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,LORD JUSTICE THORPE |
| Judgment Date | 15 March 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0315-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 1999/1239/B1 |
| Date | 15 March 2000 |
[2000] EWCA Civ J0315-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COUNTY COURT
(His Honour Judge Wigmore)
Royal Courts of Justice
Strand
London WC2
Lord Justice Swinton Thomas
Lord Justice Thorpe
CCFMI 1999/1239/B1
MR D TYZACK QC and George Meredith (instructed by Woollcombe Yonge, 22 Queen Anne Terrace, North Hill, Plymouth, PL4 8EH) appeared on behalf of the Appellant
MRS S LYONS (instructed by Head of Legal Practice, Plymouth City Council, St Andrews Court, St Andrews Street, Plymouth PL1 2AH) appeared on behalf of the Respondent
Wednesday, 15th March 2000
: Thorpe LJ will give the first judgment.
: This is an appeal by leave of the judge from a ruling given by his Honour Judge Wigmore, sitting in the Plymouth County Court on 3rd November 1999.
He had before him care proceedings in relation to a little girl, called J, who was born on 19th June 1998. Before him were the Plymouth City Council, applicant's for a care order; SC, J's mother; RC, her father, and the guardian ad litem on behalf of J.
The application for a care order was a sadly familiar one, it rested on the chaotic character of the lives of the parents. They both had profound and chronic drug problems and their own relationship had been both brief and fragmented by frequent periods of separation. The local authority's proposal was fully supported by the guardian ad litem and it is not surprising that on 5th November the judge made a care order upon the application. That order has never been challenged by any party.
Mr Tyzack, who appears today for RC, told us that on 3rd November an effort was made to introduce into the case the Liverpool City Council, as a party to the proceedings and to require them to call before the court social workers who had knowledge of the case. In order to pursue that seemingly rather frail litigation strategy, an argument was mounted by counsel then representing the natural parents that if the judge ultimately made a care order under the statutory provision his designation of the local authority to be responsible for that care order should not be the applicant Plymouth County Council but the distant Liverpool City Council.
The argument was really mounted on the chronology, and the relevant part goes thus: J having been born in Derriford Hospital on 19th June 1998, the local authority immediately obtained an emergency protection order, which was converted into an interim care order by an order of the Plymouth Family Proceedings Court on 26th June. Now, this was not a first child born to SC. She had first given birth to a little boy named JC several years earlier in a previous relationship and JC was effectively cared for by S's mother, Mrs P. Because of her chaotic and drug addicted existence it was perfectly obvious to the local authority that she would be no more able to care for a second born than a first born and it was in those all too familiar circumstances that the local authority intervened at this early stage in J's life.
However, when the mother was fit for discharge, on 7th July, she and J went to live with Mrs P. The father, RC, was at the time living in Plymouth and he visited mother and child daily. However, later in the month both mother and baby moved to a residential assessment centre in Plymouth, an arrangement that lasted for about a month and was followed by a placement out of the county at a specialist unit in Cardiff. That placement was of short duration. The next arrangement made by the City Council was to place J apart from her mother with foster parents. It is unnecessary to record any further developments beyond the arrangement which was advanced by the applicant as the secure and long-term arrangement, namely a placement with the paternal grandmother in Liverpool. That was achieved on 29th June 1999 and so had stood the test of approximately four months trial by the date of the hearing before the judge.
In resolving this issue the judge had to consider the relevant statutory provisions. There are only two subsections that I need read into this judgment. The first is section 31(8) of the Children Act 1989, in the following terms:
"The local authority designated in a care order 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 is being made."
Then subsection (6) of section 105 of the same statute says, insofar as is relevant to this appeal:
"In determining the 'ordinary residence' of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place-
(a) which is a school or other institution;
(c) while he is being provided with accommodation by or on behalf of a local authority."
The judge, in ruling on the submission advanced by counsel for the mother and counsel for the father, did describe the case as being rather complex and said that it could be characterised as exceptional. Of course, an estimation of the extent to which a case can be characterised as exceptional depends very much on the perspective of the individual. I have to say that I cannot, myself, see that this case deserves such characterisation. It seems to me, sadly, all too common a story for those of us who sit in the family jurisdiction that deals with the small per cent of very difficult cases that rise to the higher levels of trial.
But the judge went on to conclude that even if counsel were right in saying that the effect of the disregard provisions in section 105(6) was to deprive J of any place of ordinary residence during the 18 months of her brief life, then it was safe to determine that she had an ordinary residence of dependency derived from the fact that she had been born to her mother in a Plymouth hospital; that her mother was Plymouth through and through, in that she had been throughout Plymouth resident and was likely to be Plymouth resident indefinitely. The judge went on to say that, in any event, if he was not right about that he certainly would have concluded that the designation of Plymouth City Council was necessarily made under the alternative provision in section 31(8)(b), on the basis that it was plainly in Plymouth that the circumstances arose in consequence of which the care order was being made.
In the court below the local authority was supported in their opposition to the parents' submission by the guardian ad litem. The judge's grant of permission to both the parents to appeal has developed into a relatively muddled position. It seems that, initially, both parents filed notices of appeal, and initially the mother's solicitors had the primary conduct of case preparation. At some stage Mr Tyzack QC was briefed and came in to represent both parents. He has this morning drawn attention to two statements which have recently been filed by the parents. In the father's statement he records recent difficulties over contact on the basis that he is now released from prison, living in Liverpool with his sister, but constricted in his contact with J. He says that the social workers for...
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