K (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Rafferty |
| Judgment Date | 01 February 2017 |
| Neutral Citation | [2017] EWCA Civ 2720 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 2017 |
| Docket Number | Case No: B4/2016/3876 |
[2017] EWCA Civ 2720
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COUNTY COURTS
(HER HONOUR JUDGE GARLAND-THOMAS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Lord Justice McFarlane
Case No: B4/2016/3876
Mr Rhys Jones (instructed by Swansea Local Authority appeared on behalf of the Applicant
Mr S Stephenson and Mother Dominic Boothroyal (instructed by West Berkshire Council) appeared on behalf of the Respondent
(As Approved)
This is an appeal brought against the determination made by HHJ Garland-Thomas on 6 October 2016 sitting in the Family Court in Swansea. The narrow issue at the centre of the appeal is which of two local authorities should be designated as the local authority named in the interim care order which all agreed that the court would make in the course of care proceedings which had started only some days earlier in the Swansea court. The contestants for the choice of designated local authority were Swansea City and County Council and, alternatively, West Berkshire Council.
The factual history of the case can be shortly stated. However, in stating it in short terms simply to set up a description of the context within which this legal issue falls to be determined, I do not want to detract from the human impact of the story that the factual background describes. In short terms, the court was concerned with the welfare of a four-year-old child who had lived with his father and mother since birth in the West Berkshire area. The mother is plainly an intelligent and highly qualified individual who was holding a senior job in the science industry in that area. However, her complaint to the court was that for a long period, effectively going back almost to the first day of the couple's marriage, she had been the victim of domestic abuse in a wide context. Secondly, she had come to understand in the days leading up to the start of the care proceedings because of complaint made by the child, that the father may also be the perpetrator of child sexual abuse and be involved with others who were similarly engaged in that activity.
On two earlier occasions, the mother had sought to leave the family home but on each of those two occasions she had travelled a relatively short distance, had then been found by the father and had been persuaded to return. On this occasion, on 19 September 2016, the mother formed a settled plan to get well away from West Berkshire. She and the child left their home area on 19 September and she travelled to Cardiff. There followed a period of some ten days or so in which she moved from one location to another, as it happens, travelling through two or three different local authority areas in South Wales. However there came a time when her mental health deteriorated. On 29 September she was admitted, under section 2 of the Mental Health Act 1983, to the local mental health unit in Swansea and it was at that stage that the local authority in Swansea became engaged, made arrangements for the child and issued the care proceedings.
As I have indicated, before the judge, the issue was which authority will be the designated local authority for the purposes of section 31(1)(a) of the Children Act 1989, which reads as follows, “Placing the child with respect to whom the application is made in the care of a designated local authority.” The statutory provision for dealing with designation of a local authority is contained in Section 31(8), as follows:
“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.”
The case before the judge argued by counsel for each of the two local authorities was firstly, so far as West Berkshire was concerned, to assert that the mother had left the area of that authority with a very settled and determined intention not to return. That therefore she had lost her ordinary residence and therefore the child with her had also lost his ordinary residence on the day of departure. There was no assertion that the mother had established a new ordinary residence in Swansea, it being accepted that her arrival in Swansea was almost a haphazard incident in the cycle of events that took place once she got to South Wales.
The judge, having been exposed to the case law on the topic, decided the primary issue on the basis that West Berkshire were correct. The judge's judgment is short and I propose to quote certain passages of it now. The judge rightly, at paragraph 5, said this:
“It is accepted, as I understand it, by all parties, that habitual residence and ordinary residence are synonymous. It is a question of fact.”
Pausing there, it is the case that authority has established now for some time that habitual residence and ordinary residence are, indeed, synonymous and there is no distinction in law to be drawn between the two. That point was not argued and was accepted before the judge as I will indicate in a moment. It has now been taken, for the first time, on appeal before this court by virtue of a respondent's notice issued by West Berkshire. The judge went on at paragraph 6:
“It is the function of the court to carry out a rapid and not over sophisticated assessment of the history in order to make a factual determination of the child's place of ordinary residence or if there is none, the place where the case was carried over the Section 31, Children Act 1989 threshold.”
And again, the judge is correct in understanding the task that was required; in particular in identifying the need for a “rapid and not over sophisticated assessment of the history”. The judge went on to identify that the period that she was concerned with was up to 29 September, the day of the mother's admission to hospital. The judge noted that the mother had formed a settled plan to free herself from the location of West Berkshire and the judge found as follows, “This time she planned to go far enough away so that she could not be found.” The judge therefore made this conclusion at paragraph 9:
“I accept mother's evidence and I accept that she intended to leave and had planned, before doing so, that she was going to do just that. I am satisfied that she had and has no intention of returning to West Berkshire.”
The judge then referred to four cases, to which she had been referred in submissions, as follows:
“I have been referred to a number of cases and these are referred to in the skeleton arguments I have received from the City and County of Swansea, and West Berkshire; namely the case of Re B [2016] UKSC 4, Re W [2016] EWCA Civ 366; Re P [1998] 1 FLR 80, and Northampton County Council v Islington County Council [1999] 2 FLR 881. Re W helpfully sets out a template of the approach which should be adopted by the courts in dealing with these issues.”
The judge then went on, at paragraph 12, to ask herself the question whether the mother's actions were sufficient for her to give up her ordinary residence in West Berkshire. The judge then expressed this conclusion at paragraph 13:
“The City and County of Swansea argues that West Berkshire is still the place of ordinary residence and suggests that there has not been the requisite disengagement from West Berkshire and R's life there following the case of Re B. However it is clear and I find that R has moved from West Berkshire with his mother and that she has no intention to return and she planned the move.”
The judge then indicated various factors which show how settled life was in West Berkshire but she, nevertheless, concluded at paragraph 15, “What she is clear about, however, is that there was no intention whatsoever to return to West Berkshire.” The judge expressed her final conclusion on this point at 16:
“On that basis therefore and following the decision of Mr Munby (as he was then), sitting as a deputy high court judge in the case of Re P, I am satisfied that the ordinary residence in West Berkshire has ceased but that ordinary residence has not yet been established in any other area.”
Following that conclusion, the judge then moved on to consider sub-section (b). She set out the necessary background and referred to the underlying factual circumstances in very brief terms. She drew her conclusion together in this matter at paragraph 20:
“Mother has moved around since she has been away from West Berkshire and although she has stayed for a few days within the area of various local authorities, it does not seem to me that there any particular issues which arise in relation to threshold within those local authorities. The other issues, however, arise within West Berkshire. These are the primary issues, it seems to me, and certainly the greatest concerns which led to the local authority involvement. [At 21] Therefore in my judgment there is no other authority, apart from Swansea or West Berkshire, which falls to be considered.”
And then this at paragraph 22:
“Following the case of Re P, court then has to proceed to ask itself the basis on which the court should choose between the two authorities and I accept (as is set out in the case of Re P) that the child's welfare is paramount because quite clearly such a decision concerns the upbringing of a...
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