Re H (Care Order: Appropriate Local Aithority)
| Jurisdiction | England & Wales |
| Judge | THORPE LJ,JONATHAN PARKER LJ,DYSON LJ |
| Judgment Date | 18 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1629 |
| Docket Number | B1/2003/1623 FAFMI |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 2003 |
[2003] EWCA Civ 1629
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICEFAMILY DIVISION
(MRS JUSTICE HOGG)
Royal Courts of Justice
Strand,
London WC2A 2LL
Before:lord Justice Thorpe
Lord Justice Jonathan Parker and
Lord Justice Dyson
B1/2003/1623 FAFMI
DERMOT CASEY (instructed by Legal Services of Norfolk County Council, Norwich NR2 2DH) appeared for the appellant county council.
FRANCES JUDD (instructed by Legal Services of Oxfordshire County Council, Oxford OX1 1ND) appeared for the respondent county council.
JONATHAN BAKER QC & PIERS PRESSDEE (instructed by Messrs Gardner Leader of Newbury RG14 5BA) appeared for the respondent guardian.
DORIAN DAY (instructed by Messrs Faulkners of Oxford OX1 1PD) appeared for the respondent mother.
This appeal raises a short point on the construction of section 105(6) of the Children Act 1989. It arises from a judgment of Hogg J given on 4 July 2003. The judgment explains her preference for a care order to protect the placement of a little boy S, born on 14 October 1997, with his grandparents. The alternative mechanism considered was a residence order to the grandparents with a supervision order to the local authority. There were two county councils represented on 4 July, Oxfordshire and Norfolk. Norfolk accepted that if the judge decided on a supervision order they should be the designated local authority. However they submitted that if the judge were to make a care order Oxford should be the designated county council.
In making that submission Norfolk County Council relied upon the terms of section 105(6) and the decisions of this court in Northamptonshire County Council v Islington London Borough Council [2001] Fam 364 and C (Child) v Plymouth County Council [2000] 1 FLR 875. The judge concluded that the considerations in favour of designating Norfolk were so compelling as to permit her to deviate from the approach required by the two cases cited above. She refused Norfolk's application for permission to appeal but permission was subsequently granted on paper by Ward LJ. The three parties who have responded to the appeal have all filed respondents notices seeking to uphold the judge's conclusion on an alternative foundation. Before turning to the rival submissions on the law I will briefly record the essential facts and then set out the relevant statutory material.
Facts
S, his parents and his maternal grandfather and step-grandmother all have strong links with Norfolk. S was briefly in the care of Norfolk County Council after his birth. It was only at the age of two and half that he left the county when his mother, a single parent, moved to Oxford. There on 15 March 2001 he was removed under police protection and placed in foster care. He was the victim of non-accidental injuries for which his mother and her partner were responsible. Oxford County Council were responsible for his protection and they obtained an interim care order on 28 March 2001. The case came before Wall J in the Family Division in June and July 2001. At the later hearing he decided that S should return to Norfolk to be cared for by his grandfather and step-grandmother. The move was unsuccessfully opposed by Oxfordshire County Council. His return was achieved on 16 August. He has remained there ever since. The ensuing litigation was protracted. Johnson J investigated the circumstances leading to S's removal from his mother's care over the course of five days. His findings were successfully appealed and the ensuing retrial lasted 17 days before Hogg J. Her disposal hearing, culminating in the judgment of 4 July 2003, lasted five days. Throughout this period of almost two years S has remained in Norfolk with his grandparents. By the order of 4 July his father, living in the same vicinity, acquired parental responsibility. His mother had by then returned to that vicinity. However the judgment of 4 July strictly confined her future relationship both with S and with her parents. Her contact to S was reduced to three supervised visits a year of one-hour duration. She was restrained throughout S's minority from entering or approaching her parents' home and from contacting S, save during the three contact visits and from contacting his school. S's grandparents sought a care order on the basis that they would be, and would feel to be, more supported in their endeavour to do their best for S. Although Norfolk had initially submitted that a supervision order would be more suitable, by the conclusion of the case they too supported the making of a care order.
The Statutory Material
Section 31(8) of the Children Act 1989 provides:
"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."
This is a straightforward provision but it must be applied in conjunction with the provisions of section 105(6), which has conveniently been labelled the disregard provision. Its application has given rise to considerable difficulty. The sub-section provides:
"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 Rival Submissions
Mr Dermot Casey on behalf of Norfolk submits that the decision of this court in Northamptonshire County Council v Islington London Borough Council lays down a clear and firm rule to be extracted from the paragraphs of my judgment between 372G and 373C. The subsections in combination were there held to provide a simple test to enable the court to make a rapid designation of the authority responsible for the care order. Simplicity was to be achieved by deeming the ordinary residence immediately preceding the commencement of the period of disregard to continue uninterrupted. I concluded:
"I would not say that developments affecting the family during the period to be disregarded cannot in any case be considered. But I would say that such cases should be exceptional."
Mr Casey then relied on the later case of C (Child) v Plymouth County Council I reaffirmed that the simple test 'should be sufficient to determine all but the most exceptional cases'. I did not mean by that passage '… that it gave the judge some sort of discretionary exit from the...
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