Medway Council v Kent County Council and Another (Others)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Lewison,The Chancellor |
| Judgment Date | 19 April 2016 |
| Neutral Citation | [2016] EWCA Civ 366 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/3280 |
| Date | 19 April 2016 |
[2016] EWCA Civ 366
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Family Court sitting at Medway
HHJ Scarratt
ME15C01332
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Lewison
and
THE SENIOR PRESIDENT OF TRIBUNALS
Case No: B4/2015/3280
In the Matter of W (A Child) (Designation of Local Authority)
and
Mr Frank Feehan QC and Ms Amanda Meusz (instructed by Medway Council) for the Appellant
Ms Diedre Fottrell QC and Ms Joanna Burt (instructed by Kent Legal Services) for Kent CC
Miss Janet Bazley QC and Mr Corey Mills (instructed by Dorset Legal & Democratic Services) for Dorset CC
Hearing date: 3 February 2016
On 18 September 2015 His Honour Judge Scarratt made an order in the Family Court sitting at Medway in Kent that designated Medway Council ['Medway C'] as the local authority responsible for a baby girl who is now 8 months of age.
The background circumstances to the care proceedings within which that order was made are not of immediate significance to the issue that brings the matter to this court and I shall accordingly focus on such facts as are relevant to the question in the appeal which is whether the judge was wrong to designate Medway C as the responsible local authority. Medway C submit that either Kent County Council ['Kent CC'] or Dorset County Council ['Dorset CC'] should have been designated. All three local authorities were represented before this court and each have made submissions in opposition to an order designating them as the responsible local authority.
The child concerned was born on 6 July 2015 in Portsmouth. I shall call her W. The mother was in Portsmouth in consequence upon a detoxification referral made for her by Dorset Community Drug and Alcohol Advisory Service. W needed intensive care treatment at birth and was discharged by the hospital in accordance with a 'safe discharge plan' that neither this court nor the first instance court has been able to obtain. It may be that no copy of the plan now survives. If a local authority was involved in the making of the plan, it was not one of the authorities that have appeared before this court or the family court. The existence of the plan is known about because it is referred to in the documents available to the court as being made on 13 July 2015. It is common ground among those who are aware of its existence that it provided for the subsequent placement of the mother and her baby with the maternal grandfather in Kent and at a time unspecified or unknown thereafter with the maternal great grandmother in Medway.
There is no dispute about the fact that upon her discharge from hospital on 23 July 2015 W went with her mother to the home of the maternal great grandmother in Medway and that the maternal grandfather was in some way involved in that arrangement and may have been the person into whose care W was discharged by the hospital. W lived from 23 July 2015 to 4 August 2015 at the maternal great grandmother's address in Medway. Thereafter, the mother and W were provided by Kent CC with a mother and baby placement in East Sussex.
Prior to W's birth, her mother had spent time living in Dorset and Kent. For example, it is said that she lived in Dorset from May 2012 until February 2015 during which time her older child (with whom this court is not concerned) was placed in December 2014 with the paternal grandfather in Dorset. In February 2015 the mother left Dorset with that older child and went to the home of the maternal grandfather in Kent and in May 2015 the older child was made the subject of a child arrangements order to live with the maternal grandfather in Kent. The mother subsequently moved backwards and forwards to the extent that when Kent CC attempted to carry out a pre-birth assessment for W, they were unable to do so because the mother could not be located.
The Judge found as a fact that the mother had left Dorset for Kent prior to the birth of W on 6 July 2015 but that she had regularly visited Dorset until her detoxification programme began on 29 June 2015 at the St James' Hospital in Portsmouth.
Care proceedings were issued in respect of W on 23 July 2015 by Kent CC. On 9 July 2015 Kent CC had written to Dorset CC to request that Dorset CC take care proceedings. Dorset CC replied to say that they would not be bringing proceedings. Instead the 'safe discharge plan' agreed on 13 July 2015 apparently provided for the care of W within the extended family. It is clear from the statement in support of the application for a care order and the application itself that Kent CC were not in agreement with the placement of W with her mother in the community i.e. with any of the relatives proposed. The first interim care order was made by the family court on 31 July 2015 in favour of Kent CC. At that hearing Kent CC informed the court that W was being looked after by her mother at the maternal great grandmother's home in Medway subject to a written agreement and that " this is not a safe or stable interim placement".
The written agreement was also referred to in a letter dated 23 July 2015 from Kent CC to Portsmouth City Council ['Portsmouth CC'] informing Portsmouth CC that W and her mother were living in Medway under a 'working together agreement' with Kent CC. The best evidence of the terms of that agreement is contained in a Kent CC document dated 21 July 2015. The agreement is between Kent CC, the mother, the maternal grandfather and the maternal great grandmother. It is clear in its terms that the named members of the extended family were to be responsible for the supervision of the care of W and it specifies that W was to live at the home of the maternal great grandmother in Medway until Kent CC found a 'suitable placement'.
It is patent from the documents disclosed to this court and to the family court that Kent CC were opposed to the safe discharge plan even before discharge had occurred and maintained their opposition to the placement of W with her mother on the face of the application for a care order and at the hearing when the first interim care order was made. They submit that the working together agreement was a voluntary child protection agreement to abide the event of a more suitable placement that was eventually identified in East Sussex. They submit that the agreement neither provided for the placement or accommodation of W by Kent CC with her mother or other family members nor impliedly approved of the same. It was, they submit, a necessary device for the protection of W given that no other local authority had acted to protect her.
It is Medway C's case that the working together agreement amounted to accommodation provided for or on behalf of Kent CC of W with her mother and/or the extended family such that the disregard in section 105(6) applies to the period of the placement that was provided either as voluntary accommodation in accordance with section 20 CA 1989 or thereafter accommodation of W as a looked after child once the interim care order was made. Whether or not W was accommodated as submitted, both Kent CC and Dorset CC submit that the background circumstances are such that it is clear that neither the mother nor W were ordinarily resident in either of their authorities either at the time of the move to Medway or when the designation order came to be made.
The legal framework
In accordance with section 31(1)(a) of the Children Act 1989 [CA 1989] a care order, whether interim or final, must be made in favour of a 'designated local authority'. Section 31(8) CA 1989 defines a designated local authority as follows:
"a) The 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 the order is being made."
Section 105(6) CA 1989 makes further provision for the determination of the issue of 'ordinary residence' for the purpose of the CA 1989. It provides for a disregard of any period in which the child lives in any place –
"a) which is a school or other institution;
b) in accordance with the requirements of a supervision order under this Act
c) in accordance with the requirements of a youth rehabilitation order under part 1 of the Criminal Justice and Immigration Act 2008: or
d) while he is being provided with accommodation by or on behalf of the local authority."
The duty imposed on a local authority to provide accommodation for a child in need is set out in section 20 CA 1989:
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
By section 20(7) CA 1989 a local authority is not permitted to provide accommodation for a child in need if any person with parental responsibility is willing and able to provide accommodation or to arrange for it to be provided and objects. A child in need for the purposes of section 20 is defined in section 17( 10) CA 1989 as follows:
"(10) For the purposes of this Part a child shall be taken to be in need if –
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or...
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