Re H (care order: designated local authority)
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE BELLAMY SITTING AS A DEPUTY HIGH COURT JUDGE |
| Judgment Date | 10 June 2016 |
| Court | Family Court |
Care proceedings – Designated local authority – Supervision or care orders – Children and mother housed by one local authority in area of another local authority following residential assessment – Threat of homelessness and instability – Risk of father’s return.
When the Slovakian parents moved with their children to England they lived within the Leicester City Council area. The father had a longstanding problem with alcohol abuse and there had been domestic violence both in Slovakia and in England. After the father was accused of sexually abusing a child outside the family the parents separated and the mother moved to live in local bed and breakfast accommodation. A few months later Leicester authority issued care proceedings, concerned about neglect. The parents accepted that the threshold criteria were met in respect of all four children, who were between 1 and 8 years old.
The initial interim care plan was for the children to be placed in foster care, however, the court agreed to the mother’s request for a residential assessment in Coventry, this assessment proved positive and Leicester agreed to the children remaining with the mother in the interim. After leaving the residential unit, the mother and the children remained living within the Coventry City Council area, in accommodation provided by and paid for by Leicester. Leicester was considering a 12-month supervision order, with a substantial community support package, but when evidence emerged that the mother was in contact with the father, whose abuse of alcohol had continued, the authority agreed with the guardian that, while the children could remain with the mother, this should be on the basis of care orders.
Leicester then suggested that Coventry should be the designated local authority under s 31(8) of the Children Act 1989. Coventry disagreed. At a joint planning meeting Coventry led a discussion which concluded with a joint plan for supervision orders rather than care orders, on the basis of a robust written agreement to be signed by both parents. The guardian meanwhile continued to support care orders as a better way of protecting the children; she was especially concerned about the father re-establishing himself with the mother and children.
An issue also arose as to housing. Apparently, at the joint meeting Coventry advised Leicester that Leicester needed to give notice at the mother’s current accommodation, as she needed to be homeless to go into temporary housing, after which Coventry could assist with her housing.
Section 105(6) of the Children Act 1989 provided, so far as was relevant, that: ‘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 … (c) while he is being provided with accommodation by or on behalf of a local authority.’
Held – (1) The very serious housing problems soon to be experienced by the mother and children had been visited upon the family by the local authority supposed to be acting in the best interests of the welfare of the children: the decision to terminate the tenancy had been unnecessary, inappropriate and ill-judged (see [36], below).
(2) If supervision orders were made the local authority would no longer share parental responsibility and would have neither the rights nor the responsibilities which went with care orders. As the children would not be looked-after children, there would be no need for LAC reviews to take place every six months. If the situation at home were to deteriorate, for example if there were further domestic violence or alcohol abuse by the father, the local authority would not be able to remove the children as of right, but would need to apply for an emergency protection order or issue new care proceedings. Of particular importance, the local authority’s ability to oversee the father’s return to the mother’s household and to exercise control over the timing of reunification would be severely diminished. The welfare checklist analysis in this case clearly demonstrated that the former instability within this family was unlikely to end once these proceedings had concluded, indeed given the risk of impending homelessness, possibly it could get worse. This was not the right time for shared parental responsibility to come to an end. If the local authority did not change its care plan, the court would require the local authority’s Head of Service to file and serve a written statement responding to the court’s concerns and explaining why the local authority was unwilling to abide by the court’s decisions (see [60], [62], [63], below).
(3) Applying Re BC (a minor) (care order: appropriate local authority)[1995] 3 FCR 598 and Northamptonshire County Council v Islington Borough Council [1999] 2 FLR 881, a child’s ordinary residence was deemed to continue uninterrupted while he was being provided with accommodation elsewhere by or on behalf of a local authority. At all relevant times up to the placement of the mother and children in the residential assessment unit in Coventry these children had been ordinarily resident in Leicester. At the latest, the clock had stopped the day when the children moved with the mother to live in the residential unit. The court’s preliminary view was that for the purpose of s 31(8) of the Children Act 1989, once the clock had stopped it remained
stopped for the purpose of any care order made within those proceedings. If, on the contrary, the clock had re-started, then: the children had continued to be the subject of interim care orders and Leicester had made all the housing arrangements for the family in Coventry, including paying for the housing and becoming the ‘tenant’ of the property in question. This family had lived where Leicester had decided that they should live. At the relevant time the children were and remained looked-after children. In each place the children had lived since they left the residential assessment unit it was appropriate to conclude that they had been placed there and that the disregard set out in s 105(6) continued to apply. Leicester must be the designated local authority (see [66], [67], [76]–[78], below).
Statutory provisions referred to
Children Act 1989, s 1, s 1(1), s 1(2), s 1(3), s 1(3)(b), s 1(3)(c), s 1(3)(e), s 1(3)(f), s 1(5), s 20, s 22(1), s 22(3)(a), s 22A, s 22C–G, s 23, s 26, s 31(2), s 31(8), s 31(9), s 37, s 38(6), s 105(6).
Children and Young Persons Act 2008.
Care Planning, Placement and Case Review (England) Regulations 2010.
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 8.
Cases referred to
BC (a minor) (care order: appropriate local authority), Re[1995] 3 FCR 598.
B-S (children), Re[2013] EWCA Civ 1146, [2013] 3 FCR 481, [2014] 1 WLR 563, [2014] 1 FLR 1035.
D (a child) (care order: designated local authority), Re[2012] EWCA Civ 627, [2012] 2 FCR 153, [2012] 4 All ER 78, [2012] 3 WLR 1468.
Northamptonshire CC v Islington London BC[1999] 3 FCR 385, [2001] Fam 364, [2000] 2 WLR 193, [1999] 2 FLR 881, CA.
Sheffield City Council v Bradford City Council[2013] 1 FLR 1027.
Application
On 23 June 2015 Leicester City Council issued care proceedings in respect of four children: SH, TH, DH and VH. On 15 July 2015 an order was made that the mother and children should undergo a residential assessment at a unit in Coventry. Following the assessment, the local authority agreed that the children should remain in the mother’s care. The care proceedings were listed for final hearing in February 2016. At this hearing the local authority indicated that it now intended to seek care orders in respect of all four children and that it would file amended final care plans. The hearing was adjourned and re-listed for 6 June 2016. The local authority now proposed supervision orders for the children. The facts are set out in the judgment.
Julia Gasparro for the mother, MH.
Karen Kabweru-Namulemu for the father, YM.
Alison Humphrys for the children, SH, TH, DH and VH.
Judy Claxton for Leicester City Council.
James Cleary for Coventry City Council.
10 June 2016. The following judgment was delivered.
HIS HONOUR JUDGE BELLAMY.
[1] On 23 June 2015 Leicester City Council (‘the local authority’) issued care proceedings in respect of four children: SH, now aged 8; TH, now aged 6; DH, now aged 5 and; VH, now aged 1. The children’s parents are MH (‘the mother’) and YM (‘the father’).
[2] The parents accept that the threshold set by section 31(2) of the Children Act 1989 is satisfied in respect of all four children. All parties agree that the children should continue to live with the mother. The parties are not agreed about whether that placement should be under supervision orders (as contended by the local authority), or under care orders (as contended by the Children’s Guardian). The parents take a neutral position concerning that issue.
[3] Since November 2015 the mother and the children have been living in the area of a neighbouring local authority, Coventry City Council. Whether the court makes care orders or supervision orders, Leicester City Council contends that Coventry City Council should be the designated authority. Coventry City Council disagrees.
[4] The family originates from Slovakia. They are a Romany family. They began living together in England in 2013. Both parents have a borderline level of learning difficulties. Although within these proceedings both have been assessed as having capacity to instruct solicitors, the mother has been assessed as requiring the assistance of an intermediary. Neither parent speaks English. Both parents have required the assistance of interpreters at all court hearings.
[5] There had been difficulties in the parents’ relationship before they arrived in England. Local records suggest that the mother was the victim of domestic violence whilst living in Slovakia. She separated from the father. She took the children with her. She obtained custody orders from her local court.
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