Re P (A Minor) (Care Proceedings: Designated Local Authority)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Year | 1998 |
| Court | Family Division |
Care proceedings – Local authority applying for care order – Interim care order made – Mother and child moving to second local authority area – Child continuing to reside with mother – In whose local authority area mother ordinarily resident – Which local authority to be designated authority if care order made – Children Act 1989, ss 31(8)(a), 31(8)(b), 105(6).
The mother was born in the London Borough of A in 1970. She suffered from certain physical and learning disabilities and was received into the care of that local authority in 1974. Between 1974 and 1996 the mother lived, in turn, in the London Boroughs of B, C, D and E. The placements were funded by the London Borough of A. Her child was born in January 1995 while the mother was living in the London Borough of D. Care proceedings were commenced in August 1995 by the London Borough of A in relation to the child, following concerns about his physical safety. On 3 June 1996 the mother was granted the tenancy of a flat which she had found for herself in the London Borough of F and although initially the London Borough of A did not want the mother and child to move into the flat, they reluctantly agreed to pay the rent for the flat until they moved into it. On 21 June 1996 interim care orders were made placing the child in the care of the London Borough of A on the basis that the local authority had no intention of removing the child from the mother. In October 1996 the mother and child moved into the flat whereupon the London Borough of A notified the London Borough of F that the mother and child would be moving into its area and indicated that it would retain case work responsibility for the family whilst they underwent assessment. However, it was not until May 1997 that London Borough of A first told the London Borough of F about the pending care proceedings and invited confirmation that F was the authority to be designated if a care order was made pursuant to s 31(8)(a) or (b) of the Children Act 1989, which provided that the local authority to be designated in a care order must be either: (a) the authority within whose area the child was ordinarily resident, which by s 105(6) disregarded any period in which the child was provided with accommodation by or on behalf of a local authority; or (b), where the child did not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order was being made. Thereafter, in the absence of an agreement between the two boroughs, the London Borough of A applied to have the matter determined by the court as a preliminary issue.
Held — (1) For the purposes of s 31(8)(a) of the 1989 Act, since ordinary residence was in essence a simple concept, depending solely on evidence of a settled purpose continued for an appreciable time, it was normally sufficient for the court to stand back and take a general view. Moreover, the word ‘appreciable’ did not necessarily involve a very long period of time, and it was certainly possible in appropriate circumstances to acquire ordinary residence within a period measured in weeks rather than months. In the circumstances of the present case, the mother acquired ordinary residence at the latest shortly after moving into the flat in October 1996 and accordingly was now ordinarily resident in the London Borough of F. It made no difference that without the funding from the London Borough of A she might not have been able to move into the flat. The decision to move was hers alone. As the child was living with his mother he was also ordinarily resident in the London Borough of F and this was so notwithstanding the fact that the child was the subject of an interim care order so that the mother did not have sole parental responsibility.
(2) As the child had at all times lived with the mother he had not at any time been provided with accommodation by the local authority. Therefore s 105(6) of the 1989 Act did not apply and it was accordingly the London Borough of F that s 31(8)(a) required the court to designate in any care order that could be made.
(3) If the requirements laid down in ss 31(8)(a) and 105(6) of the 1989 Act were not satisfied and the child did not reside in the area of a local authority, the court would have to decide under s 31(8)(b) which authority was the authority within whose area any circumstances arose in consequence of which the care order was being made. The words ‘any circumstances arose’ were very wide and were not confined to the circumstances of the child’s own life or to those circumstances which had arisen in the places where he had lived. Once the local authorities which qualified under s 31(8)(b) were identified the court had to chose which one should be designated and the welfare of the child was the paramount consideration. In the present case relevant factors were that the mother and the child were living in the London Borough of F, that the central issue in the pending care proceedings would be the mother’s ability to care for the child in her present accommodation, and that the child was a ‘child in need’ who was within the area of the London Borough of F which, if a care order was not made, would have imposed upon it the various duties under Pt III of the 1989 Act. Accordingly, had the case fallen to be determined under s 31(8)(b) the London Borough of F would be the local authority designated in the care order.
Cases referred to in judgmentAF (a minor) (abduction), Re[1992] 1 FCR 269, CA.
Akbarah v Brent London BC, Abdullah v Shropshire CC, Shapbar v Barnet London BC, Shah v Barnet London BC, Barnet London BC v Shah [1983] 2 AC 309, [1983] 1 All ER 226, [1983] 2 WLR 16, HL.
B (minors) (Hague Convention) (no 2), Re[1994] 1 FCR 394.
BC (a minor) (care order: appropriate local authority), Re[1995] 3 FCR 598.
Gateshead Metropolitan BC v L[1996] 3 FCR 582, [1996] Fam 55, [1996] 3 All ER 264, [1996] 3 WLR 426.
Hackney London BC v C[1997] 1 FCR 509.
J (a minor) (abduction: custody rights), Re [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492; sub nom C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, HL.
Kapur v Kapur [1984] FLR 920.
KM (a minor) (habitual residence), Re[1996] 2 FCR 333, CA.
L v Bexley London BC[1997] 1 FCR 277.
M (minors) (residence), Re[1993] 1 FCR 718, CA.
R (minors) (care proceedings: care plan), Re[1994] 2 FCR 136.
S (a minor) (abduction), Re [1991] FCR 656, CA.
Preliminary issueThe applicant, the London Borough of A, applied to the court in the course of care proceedings in respect of P to determine as a preliminary issue whether the London Borough of F, into whose area P and his mother T had moved from the London Borough of A, was a designated local authority for the purposes of s 31(8) of the Children Act 1989. The application was heard and judgment was given in chambers. The case is reported by permission of Mr James Munby QC, sitting as a deputy judge of the High Court. The facts are set out in the judgment.
David Turner for the London Borough of A.
Mark Emanuel for the London Borough of F.
Catherine Nicholes for the mother.
Meena Gill for the guardian ad litem.
Cur adv vult
25 July 1997. The following judgment was delivered.
MR JAMES MUNBY QC.This is a preliminary point which has arisen during the course of care proceedings commenced in relation to a young boy, P (that is not his real initial), by a London Borough which I shall call the London Borough of A. The question is which local authority should be designated in accordance with s 31(8) of the Children Act 1989 in any care order that may hereafter be made with respect to P. The issue has arisen as between the London Borough of A and another London Borough, which I shall call the London Borough of F. In the course of this judgment I shall have to refer also to four other London Boroughs which I shall call the London Boroughs of B, C, D and E respectively.
The care proceedings are taking place in the Principal Registry. On 1 July 1997 District Judge Kenworthy Brown ordered the London Borough of F to be joined as a party and transferred the proceedings to the High Court, but only
for the purpose of determining the preliminary issue. I heard argument on 16 July 1997. At the hearing of the preliminary issue the London Borough of A was represented by Mr David Turner of counsel, the London Borough of F by Mr Mark Emanuel of counsel, P’s mother T (that is not her real initial) by Miss Catherine Nicholes of counsel, and P’s guardian ad litem by Miss Meena Gill of counsel. The London Boroughs of B, C and D have played no role – and indeed have not been invited to play any role – in the proceedings. Nor, perhaps more significantly, has the London Borough of E.
The substantial dispute was between the London Borough of A and the London Borough of F. I am grateful to Mr Turner and Mr Emanuel both for their carefully prepared skeleton arguments and for their very helpful oral submissions. Miss Nicholes and Miss Gill from their different perspectives each made it clear that they had no view as to which authority should be designated. They were able to provide me with valuable factual information. At the end of the hearing I made an order that the London Borough of F should be designated. I said that I would give my reasons in writing at a later date, which I now do.
The hearing of the preliminary issue took place in chambers. This judgment is also being delivered in chambers. At the suggestion of the parties, however, I give leave for the judgment to be reported. With that possibility in view I have prepared the judgment in what I hope is a suitably anonymised form.
The factsT was born in the London Borough of A on 10 August 1970. Unhappily T has suffered since birth from certain physical disabilities. She also suffers from learning disabilities, though there is no suggestion that she is not capable of managing her property and affairs as that expression is used in r 9.1(1) of the Family Proceedings Rules...
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