Y (A Child)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender,Sir Terence Etherton MR,Lady Justice King |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2209 |
| Date | 12 December 2019 |
| Docket Number | Case No: B4/2019/2418 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2209
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COMBINED COURT CENTRE
Deputy Circuit Judge Hunt
LS19C00551
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lady Justice King
and
Mr Justice Lavender
Case No: B4/2019/2418
Brett Davies (instructed by The Council of The City of Wakefield) for the Appellant
Sally Bradley (instructed by Brighton & Hove City Council) for the Respondent
Alex Taylor (instructed by King Street Solicitors) for the Child (written submissions only)
Hearing date: 28th November 2019
Approved Judgment
This is an appeal from an order made by Deputy Circuit Judge Hunt on 17 September 2019. The judge made an order pursuant to section 31(8)(b) Children Act 1989 (“s31(8)(b)”) that Wakefield City Council (“Wakefield”) were to be the designated local authority in relation to care proceedings concerning a child, Y, who is now 18 months old and presently living with foster carers in Wakefield.
On 13 August 2019, Wakefield issued care proceedings in relation to Y. The next day, 14 August 2019, HHJ Bartfield made an interim care order. The court approved Wakefield's care plan which was for the immediate removal of Y from the care of her mother. A subsequent dispute between Brighton and Hove City Council (“BHCC”) and Wakefield, as to which authority should be the designated local authority, was heard on 17 September 2019 by DCJ Hunt.
The issue between the two local authorities relates to funding and not to the interim care plan for Y. The judge was told that, regardless of designation, Y would remain in foster care in Wakefield for the duration of the care proceedings and that Wakefield social workers would present the evidence at the final hearing. If designated, BHCC's role would be limited to funding some, or all, of the social work and other related costs.
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.”
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.”
The present case has been brought before the courts because of a disagreement between the two local authorities as to how a local authority is to be designated, where a parent has moved from place to place with his or her child, never staying anywhere long enough to acquire ordinary residence.
Background
The mother has had a troubled childhood. In 2013 her first child was made the subject of care and placement orders to BHCC. Three years later in 2016, her second child went to live with his paternal grandparents in Pakistan upon the application of the London Borough of Redbridge. By 2018, the mother was living in Bolton and pregnant again. The local authority in Bolton assessed the mother and made a care plan which would mean the removal of the expected baby at birth. The threat of the removal of her baby provoked the mother to flee to the Republic of Ireland where Y was born in May 2018.
Following her birth, Y spent three months in foster care before being returned to her mother's care in July 2018. Within days, concerns were such that Y was voluntarily accommodated until a residential placement could be identified. Mother and child were reunited at a residential assessment centre in Northern Ireland as no placement was available in the Republic.
In February 2019, the mother was moved to the Mater Dei hostel in Belfast where she and Y lived, receiving supervision and support. This move marked the end of the involvement of the Republic of Ireland, and Belfast HSCT (“Belfast”) took over management of the case. During the next few months, the mother regularly left the hostel and visited both London and Dublin but she always returned to the hostel. By June 2019, the mother was saying that she did not wish to remain in Belfast but wanted to move to London. Meanwhile, the social workers in Belfast were increasingly concerned about the mother's care of Y, and on 10 June 2019 she was placed on the Child Protection Register under the category of potential physical abuse, neglect and emotional abuse.
On 11 July 2019, the mother again left Belfast and after a brief stay in Kidderminster, arrived in Brighton on 16 July. The next day, BHCC became formally involved when a request came from Belfast to conduct a welfare check. A BHCC social worker, accompanied by the police, saw the mother at an address in Brighton on 18 July. Whilst the property in which she was living was not suitable in the long-term, and there was some cause for concern about the level of care Y was receiving, the mother showed the social worker her return ticket to Belfast for 24 July. The welfare concerns were not sufficient for BHCC to feel the need to take any immediate action, particularly given that she was to return to Northern Ireland within days.
Unbeknownst to Brighton, after 9 days in that city, the mother moved to London on 26 July and then on to Wakefield on 29 July 2019 where she remains. During this time, the mother maintained contact with her support worker at the hostel and a social worker. The sort of breakdown in communication that there may, or may not, have been in Belfast, as between those in contact with the mother and those managing the case, is unclear. However, it is clear that on 1 August 2019, Belfast requested the co-operation of BHCC in locating and securing the safety of Y through an Emergency Protection Order (EPO) together with a recovery order, the mother having failed to return to Belfast on her return ticket on 24 July.
By 2 August 2019, Belfast had drafted an application for an interim care order with a care plan for immediate removal. In an interim threshold document prepared in anticipation of proceedings, dated as early as 5 July 2019, and substantially repeated within the social work statement in support of the application, Belfast listed a catalogue of serious welfare concerns in respect of the mother's care of Y, including that:
“[the mother] has fled from Brighton to Bolton to Dublin to avoid social services intervention. Currently [the mother] is at large in the UK with [Y] and is indecisive as to whether she will return to Belfast or remain in the UK.”
Belfast's application for a care order recorded that BHCC were in the process of lodging an application for an EPO, in order to ensure Y's safety in England “with a view that Belfast Trust make an application for an ICO in order to place Y in a foster placement in Belfast”.
Therefore, it was, and is, abundantly clear that Belfast saw BHCC's role as limited to assisting them to find the mother, with a view to her and Y being returned to Belfast where care proceedings would take place.
To this end, on 5 August 2019, BHCC applied for, and obtained, an EPO on the understanding that Belfast would be issuing the care proceedings imminently. BHCC continued to try and find the mother in Brighton, visits were made daily to the address they had seen the mother at on 18 July.
On 8 August 2019, BHCC again went to the address in Brighton. The mother's sister was there, she rang the mother who spoke to the social worker and (albeit with some reluctance) gave her an address in Wakefield. The recovery order was executed that night at that address and Y was placed in foster care.
Although Y had been removed from the care of her mother pursuant to the order, those executing the EPO, who had arrived at the address in Wakefield unannounced, had seen Y at home with the mother and her boyfriend for over an hour before Y was removed. The social worker had no immediate concerns about Y's care, and checks on the boyfriend did not throw up anything that would justify interference on the part of social care.
The EPO having been executed, the matter came before HHJ Jakens the following day, for a pre-listed hearing of an application to extend the EPO; on the basis that the mother had not, as yet, been traced.
During the course of the proceedings, it became clear (and this is not disputed) that the mother had been in contact with Belfast on a number of occasions since she had left Brighton on 25 July and specifically, on 6 August, she had attempted to notify them of her address in Wakefield.
Given that there were no immediate welfare concerns, and now no perceived flight risk, and given that the mother had been in touch with Belfast throughout the period when she had been thought to have been missing, BHCC sought permission to withdraw their application for the extension of the EPO which had been made before it was known where the mother was living.
HHJ Jakens was in a difficult situation and she was rightly concerned about Y. The only proceedings were the proceedings which were apparently issued in Belfast, who had questionable jurisdiction over the mother in this country and which had not been served...
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B (A Child)(Designated Local Authority)
...I would add to that, the need to avoid a disproportionate amount of court and judicial time being spent on resolving such an issue. 9 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 ......