Re D (A Child) (Care Order: Designated Local Authority)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Stanley Burnton,Lord Justice Elias
Judgment Date14 May 2012
Neutral Citation[2012] EWCA Civ 627
Date14 May 2012
Docket NumberCase No: B4/2011/2274

[2012] EWCA Civ 627

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MEDWAY COUNTY COURT

HIS HONOUR JUDGE CADDICK

ME11C90006

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Stanley Burnton

and

Lord Justice Elias

Case No: B4/2011/2274

Between:
D (a Child)

Mr R. Clough (instructed by Kent County Council) for the appellant

Mr A. Bagchi (instructed by Surrey County Council) for the respondent

Hearing date: 24th January 2012

Lord Justice Ward
1

What a nice, tricky little case this is. Although it is about a child in care, it is not in any way a case about the welfare of the child who is the subject of the care order that has been made: it is all about who has to pay for the care that has to be provided for her. It is another of those vexed cases to decide which Local Authority has to be named as the designated Local Authority in the care order. This is supposed to involve "a simple mechanism to determine the question of administration", per Thorpe L.J. in Northamptonshire CC v Islington LBC [2001] Fam 364, 374. We are finding it anything but simple.

2

Fortunately at least the facts are simple enough. L, ("the Baby"), the child with whom we are concerned, was born on 16th December 2010 at the Darenth Valley Hospital in Kent. On their discharge from hospital L and her mother, A, ("the Mother"), returned with her baby to the address in Kent where she was living. All was not well. Kent CC ("Kent") had concerns for the child. As early as August 2010, months before she was born, Kent's Social Services Department had been notified of the Mother's vulnerability and of the volatility of the young man who was the father of the child she was carrying. In October the unborn child was made the subject of a Child Protection Plan following the initial case conference convened by Kent Social Services. The concerns did not disappear after the child was born. Such was the neglect of her that she was taken into police protection on 27th May 2011 and provided with accommodation by Kent with foster parents who reside in Kent. Kent duly applied for and was granted an interim care order in respect of L on 23rd June 2011. The Baby remained with her foster parents in Kent.

3

The care order ( and by reason of section 31(11) of the Act a care order includes an interim care order) is one "placing the child with respect to whom the application is made in the care of a designated local authority": section 31(1)(a). Section 31(8) informs us how to ascertain who the designated authority is to be:

"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."

4

A baby's ordinary residence is dependent on her mother's: as Lord Br andon of Oakbrook said in In Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 579:

"… where a child of J.'s age [about 3 years old] is in the sole lawful custody of her mother, his situation with regard to habitual residence will necessarily be the same as hers."

Thorpe L.J. said the same in C (A Child) v Plymouth CC [2000] 1 FLR 875, 879H. So we have to determine the Mother's ordinary residence.

5

One would think it would be Kent as the Mother was living there but now the dreaded section 105(6) comes into play:

"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;

(ba) in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008; or

(c) while he is being provided with accommodation by or on behalf of a local authority."

6

At first glance stopping the clock does not seem to make any difference in this case because even if we have to disregard the period in which the Baby lived in the accommodation in Kent provided by Kent, she had nonetheless been resident in Kent with her Mother before these protective steps were taken in respect of her. One asks why then should Kent not be the designated local authority?

7

Here is the rub. The Mother is (or at all material times was) herself a child in care, in this case in the care of Surrey CC ("Surrey"). The unique problem that then arises in this case is whether section 105(6) also applies to the Mother. Are we precluded from looking at the reality of the Mother's position as at May 2011 because we are required to disregard the whole of the period during which the Mother was accommodated by Surrey?

8

The Mother's position is this. She was born on 5th April 1994. She was taken into care by Surrey in about September 2004 when she was ten years old and she has been provided with accommodation by Surrey ever since. If section 105(6) applies to her we must disregard where she has been living since then. In fact she seems to have remained in Surrey until about 2006, but since then, apart from a period between September 2009 and March 2010 when A resided in London, she has been living in Kent. That came about because Surrey placed her with a number of Independent Fostering Agency approved foster parents all of whom lived in Kent. Because the foster parents were provided by the Independent Fostering Agency, Kent was not involved in any way with these placements though Surrey would have notified Kent that it had placed one of its looked after children in Kent's area. Surrey remained fully responsible for "its" child, A. Kent bore no responsibility for her. In the later stages of her pregnancy the Mother, who was only sixteen, was living in a mother and baby approved placement which was provided by Surrey. After her confinement L simply joined her Mother in that placement. Surrey continued to fund that placement for the Mother which discharged Surrey's duty to provide accommodation that was suitable to meet her needs which now included looking after her Baby. Surrey did not treat the Baby as a child whom it was obliged to look after and despite Kent's concerns about the child, there was for the first months of the Baby's life no question of her being provided with accommodation by either Surrey or Kent.

9

How then do section 31(8) and section 105(6) apply in the circumstances of this case? We must start with section 31(8) which I set out at [3] above. For section 31(8)(a) purposes the search is for "the authority within whose area the child is ordinarily resident".

10

"The child" with whom the subsection is concerned, and I am adding the emphasis, is clearly the child who is the subject of the care order, the Baby. As I have already indicated, her ordinary residence is fixed by her Mother's ordinary residence and the vital question is whether section 105(6) requires us to apply its disregard provisions not only to the Baby but also to the Mother. In determining the Mother's ordinary residence are we, in the language of section 105(6), "determining the "ordinary residence" of a child for any purpose of this Act"? The crucial words to which we have to give their proper meaning are "a child" and "for any purpose of this Act".

11

It is clear and can brook of no argument that this Mother is still "a child" as "child" is defined by section 105(1) of the Act, namely:

"In this Act –

"child" means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen."

Paragraph 16 of Schedule 1 deals with financial provision orders and does not apply here. So far so good.

12

The critical question is whether we are determining the Mother's ordinary residence "for any purpose of the Act". Giving the word "any" its ordinary and literal meaning, the answer is, "Yes, we are determining the Mother's ordinary residence in order to establish the Baby's ordinary residence in order to decide for the purpose of section 31(8) which local authority must be designated in the care order". So section 105(6) would seem to apply to the Mother.

13

If we are to disregard the period after the Mother herself was accommodated by Surrey in September 2004 and concentrate on where she was ordinarily resident before that accommodation was provided for her, we then have to ask where her mother, the Baby's gr andmother, was ordinarily resident in September 2004 because A would be ordinarily resident where her mother was then ordinarily resident. It does not seem to be disputed that the gr andmother was ordinarily resident in Surrey. The odd result, therefore, is that this Baby's ordinary residence in May 2011 is determined by her gr andmother's ordinary residence in 2004. On this construction the Baby is ordinarily resident in Surrey even though she has never lived there and her Mother has not lived there since she was twelve. Nevertheless in these straightened financial times, it is no surprise that Kent would wish rely upon this literal construction of section 105(6) so as to pass the financial obligations for the care of A to Surrey.

14

The issue of the designation of the appropriate local authority accordingly first came before the North Kent Family Proceedings Court which considered it had a discretion and found that the exceptional circumstances of this case justified their nominating Kent CC. On appeal His Honour Judge Caddick sitting in the Medway County Court on 4th August 2011 correctly held that there was no such discretion, but that section 105(6) did not, upon its proper interpretation, apply and that...

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