Northamptonshire County Council v Islington London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE PILL,LORD JUSTICE BELDAM |
| Judgment Date | 21 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0721-11 |
| Docket Number | CCFMI 1999/0093/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 1999 |
[1999] EWCA Civ J0721-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE HALL)
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Lord Justice Pill
Lord Justice Thorpe
CCFMI 1999/0093/2
MR J BENNETT (Instructed by Northampton County Council Legal Services)) appeared on behalf of the Appellant
MS G KNOWLES (Instructed by London Borough of Islington, Head of Law and Public Services) appeared on behalf of the Respondent
Wednesday, 21 July 1999
This is the first of a number of first instance decisions on the proper construction of sections 31(8) and 105(6) of the Children Act 1989 to reach the Court of Appeal. Before approaching the difficult points of construction argued before us I will record the relevant history.
KC originated from London and his wife H from Northampton. They had three children, N, H and J. This appeal is almost exclusively concerned with N who was born on 10th April 1987 The separation of the parents took place in 1996 and thereafter N's care fluctuated between his father in London and his mother in Northampton. There were considerable doubts as to the ability of either to protect N from harm. When in his father's care it seems that he was exposed to sexual abuse by his first cousin in 1996. In the same year his mother commenced cohabitation with a Schedule 1 offender with whom she had had previous association. In October 1996 the mother had secured N's return to Northampton by a ruse, however his future was intended to be secured by an order made in the Northampton County Court on 23rd January 1997. The order was made by consent. On an undertaking by the father to use his best endeavours to ensure that N was not left alone in the company of his first cousin, a residence order was made to his father and a contact order to his mother. Pursuant to that order he returned to live with his father in London. Although this is not to be found from the order itself, one of the foundations of the consent order was that he and his father should not live in the flat of his paternal aunt and his first cousin in Islington. However, as Judge Hall subsequently found, between January and July 1997 he lived with his father in the home of his aunt and first cousin in Islington, regularly attending school in the borough. Furthermore the father applied for housing accommodation in Islington which would have enabled them to live separate from the abusive household. Islington Social Services were first involved with a referral on 4th February 1997 when concerns were expressed at the risk of sexual abuse. The father told the investigating social workers that he was sharing a home with his sister out of necessity but was observing the terms of his undertaking. There were further referrals in March and April and in April and May both Northampton Social Services and the mother wrote to Islington to express concern. On 3rd July the father was interviewed by Islington social workers and the police when he asserted that the abuser had moved elsewhere in order that he and N could remain with his sister. On 10th July N was assaulted by his father and aunt for having disclosed his cousin's abuse and on the following day Islington social workers moved N to the security of a children's home in Croydon. On 16th July the father wrote to the mother from Islington saying that he no longer wished to care for N and a fortnight later he wrote again to say that N had been taken into care. Islington rejected the mother's offer to care for N and on 3rd September commenced care proceedings. The application was issued in the Inner London Family Proceedings Court but because of the involvement of two local authorities, one outside the Inner London catchment area, the case was transferred to the Family Division and investigated by Holman J. He expressed considerable concern that Northampton had taken no steps to protect N's sisters, still living with their mother and a Schedule 1 offender. It seems that in consequence Northampton issued care proceedings in respect of the two younger children and Islington's application in respect of N was transferred to the Northampton County Court to be consolidated with the proceedings relating to his sisters.
The consolidated applications came before His Honour Judge Hall on 18th November 1998. In the fifteen months since N had been taken into care he had been accommodated throughout at the children's home in Croydon. The application for a care order in respect of N was not opposed. Neither parent was in a position to do so. Since N's reception into care the father had refused to reveal his home circumstances beyond saying that he was living in London with a new girlfriend. Islington and Northampton had agreed a care plan which Islington would present to the court. Paragraph 4 was in these terms:
"It is the proposal of this local authority that N remain at Ingleside Childrens Home in Croydon on an interim basis until a long term fostering placement is found for him. N will need to be placed in an alternative long term family in Northampton."
Accordingly at the hearing Judge Hall made the care order in respect of N and an interim care order in respect of his sisters. The local authority designated in the interim care orders was Northampton. There was no other contender. However the local authority to be designated in the care order gave rise to the only contested issue in the case. Where there is more than one candidate for designation contests are common since the consequence of designation is generally labour and expense to the selected local authority. The provision determining designation is section 31(8) of the Children Act 1989, which is in these terms:
"(8)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."
There is one subsection of the interpretation section of direct application to section 31(8). It is section 105(6) in these terms:
"(6)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;
(b) in accordance with the requirements of a supervision order under this Act or an order under section 7(7)(b) of the Children and Young Persons Act 1969, or
(c) while he is being provided with accommodation by or on behalf of a local authority."
The proper construction of section 31(8) and its application to the facts of this case was argued out before Judge Hall by Miss Knowles for Islington and Mr Bennett for Northampton. The judge made it perfectly plain that he intended to make a valiant judicial effort to designate Northampton. That is a very understandable leaning. After all Islington had placed N south of London which hardly facilitated contact with his maternal family. His long term need was for a Northampton foster parent placement. Both his sisters were to be in the care of Northampton. Thus practicality and the commendable desire to promote N's welfare pointed to the same designation. But the question is did the subsection permit that outcome?Judge Hall concluded that it did. His essential reasoning is as follows:
"In all these cases the question is a matter of fact and degree and I am entitled, in my judgment, to take into account all the circumstances of the case. It is conceded that in this area the word 'ordinary' means the same as 'habitual' but, having examined all the facts of this case, the only quality that I can ascribe to this residence is 'temporary'. It was in defiance of a court undertaking and liable to be brought to an end at any moment. Despite the fact that it lasted five and a half months, I do not find that it was either ordinary or habitual. By the fact of the residence order and the move to London N in fact lost his ordinary residence in Northampton, and therefore section 31(8)(a) does not apply and I have to look at section 31(8)(b)."
He therefore proceeded to consider that subsection noting that both counsel agreed that the word 'ordinarily' should be read into the subsection immediately preceding the word 'reside'. His choice of Northampton was reasoned thus:
"The primary cause of the reception into care and the primary cause of these proceedings is what happened in Islington. The secondary cause is the nature of the accommodation and the nature of the upbringing which the mother has offered and could offer N in Northampton. Am I allowed to take by law anything else into account?It seems to me that at this stage it is perfectly proper for me to look at the welfare check list. That is what section 1 tells me to do. The London Borough of Islington and its administration have let N down. He was placed miles away from his siblings, much further than was at all sensible. If Islington was the designated authority within the care order, it would have to delegate its powers to Northampton, and Northampton would send the bill at the end of the year. I am told from the Bar that it works and I am prepared to accept that it can work. But, on the past history of this case, the shorter I can make the chain of command, I am certain the better it will be for N."
He closed his judgment with an apology to the Bar 'for not having cited at length or at all from the authorities', which were with the file.
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