IN THE MATTER OF s31 CHILDREN ACT 1989
B e f o r e :
|OXFORDSHIRE COUNTY COUNCIL||Applicant|
|AZ, BZ, CZ, DZ|
|(Acting through their Children's Guardian)||Third to Sixth Respondents|
Bhanya Rawal, trainee solicitor of SMQ solicitors for the First Respondent mother
Stephen Crispin, instructed by Johnson & Gaunt, solicitors for the Second Respondent father
Michael Trueman of Trueman's solicitors, for the children's guardian
Alexandra Davey, instructed by Rotherham Metropolitan Borough Council
Hearing dates: 15th and 16th May 2019
Crown Copyright ©
(i) Although the children are currently ordinarily resident in Rotherham, for the purposes of determining designation, the Court must disregard any period where the children have been provided with accommodation by a local authority. The children were accommodated with relatives first subject to section 20 and then pursuant to interim care orders, i.e. they were at all these times being provided with accommodation by the local authority. The last place the children were ordinarily resident before they were accommodated by the local authority was Oxfordshire, and therefore Oxfordshire should be the designated local authority;
(ii) If, contrary to her submissions, I find that Rotherham should be the designated local authority, she invites me to postpone making any care orders in order that Rotherham may have the opportunity to carry out its own assessments of the family and to design its own care plan, alternatively take other steps as it considers would best meet the welfare of the children.
Applications for care orders
Designation of local authority
"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."
"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."
(i) In determining the children's ordinary residence in accordance with section 31(8), how does the section 105(6)(c) disregard period operate?
(ii) More particularly, in what circumstances is a local authority to be regarded as providing the children with accommodation within the meaning of section 105(6), therefore triggering the disregard period?
Re C (care order: appropriate local authority)  1 FLR 544
Northampton County Council v Islington Council  2 FLR 881;
Re H (Care Order: Appropriate Local Authority)  EWCA Civ 1629;
London Borough of Redbridge v Newport City Council  EWHC 2967 (Fam);
On the application of SA (a child) v A local authority  EWCA Civ 1303;
Sheffield county Council v Bradford Metropolitan Borough Council 22nd June 2012,  EWHC B37 (Fam) ;
W (A Child) (Designation of Local Authority)  EWCA Civ 366;
Re H (care order: designated local authority)  EWFC 39;
In the matter of C (children)  EWCA Civ 900
Analysis of case law re designation of a local authority
How does the disregard period operate?
'I am convinced that section 31(8) was never intended to be a gateway to the extensive judicial investigation of a number of relevant facts and circumstances as the prelude to the exercise of some discretionary choice. It was surely intended to be a simple test to enable the court to make a rapid designation of the authority upon which is to fall the administrative, professional and financial responsibility for implementing the care order and the care plan. Where the child has connections with more than one area ordinary residence determines on the basis that almost every child will have an ordinary residence, if not a presence in some local authority area. In the rare case where a child lacks an ordinary residence in a local authority area the court designates the area in which occurred the events that carried the application over the section 31 threshold.
On that approach I lean towards Bracewell J's inclination to hold that the area of ordinary residence immediately prior to the commencement of the stay to be disregarded should be notionally extended throughout that stay. I would not say that the 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.'
When is a local authority providing accommodation to children within the meaning of section 105(6)(c)?
- Ordinary residence is determined at the time of the hearing, but the Court must disregard any period where the child was provided with accommodation by the local authority;
- however, the 'stop-the-clock' approach does not apply when the child is living with a parent or relative, friend or other person connected with him, because the child is not being provided with accommodation by or on behalf of a local authority within the meaning of section 105(6);
- If there are exceptional circumstances, that may justify the Court deciding to disapply the disregard approach and keep the clock running. Moving to a new area and cutting all ties with the first area is unlikely to be regarded as exceptional;
- If after this analysis the conclusion is that the child is not ordinarily resident in any area, then the Court must determine the designated authority in accordance with section 31(8)(b) by identifying the circumstances that arose which eventually led to the order being made.
'Looking at the operation of section 23, subsection (1) deals with the local authority's duty to children they are looking after. If the child is in care, he is a looked after child by virtue of section 23(1)(a) and as a child in care he must be provided with accommodation: section 23(1)(a). Subsection (2) deals with other children being looked after, not being children in care under a care order, often called children 'in voluntary care'. Section 23(2) provides that the local authority shall (not may as in section 17(6)) "provide accommodation" (and let us not forget it, maintenance as well) in three specified ways:"(a) placing him" with a category of persons;
"(aa) maintaining him" in a children's home, and
"(f) making other arrangements" as seem appropriate.
Thus making arrangements under subsection (6) is as much a means of providing accommodation as is placement under subsection (2)(a).
'Making arrangements to enable the child to live with the grandparents under subsection (6) must be a way of fulfilling that duty to children whilst in care. Arrangements under subsection (6) must be a means of providing accommodation. But, whatever I may think, if I am bound by In re H, then I must give in gracefully.'
'.. (a) placement with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent; or
(b) placement with a local authority foster parent who does not fall within (a); [or]
(c) placement in a children's home … [or]
(d) .. placement in accordance with [certain other arrangements]'.
'With the repeal of s23 and with the new and different layout of the statutory duties under s22C, the approach adopted in Re H  1 FLR 534 is in my judgment no longer applicable. This is because the concept of 'making arrangements to live with' now only applies to a child living with a parent (as defined by me above). Arrangements made for a child to live with a relative are now specifically referred to as 'a placement', which must amount to the provision of accommodation by the local authority for the purposes of s105(6). Thus, placement with a relative is now caught by s 105(6) (which it did not used to be, by virtue of the case law based on s 23) with the result that the 'disregard' has to be applied. The fact that the analysis in the Re H  1 FLR 534 line of authorities was itself criticised in later cases, notably in R (SA) v Kent County Council  EWCA Civ 1303 (CA) has become irrelevant as regards cases governed by the new law, by reason of the repeal of s23.'
Issues for the Court to determine
(i) the time they have spent in Rotherham with their father and paternal grandparents is regarded as time that arrangements were made for them to live with their father within the meaning of section 22C(2), and therefore not being provided with accommodation by the local authority. In that case the disregard period does not apply and they have acquired ordinary residence in Rotherham; or whether
(ii) they have been placed with relatives, or otherwise been provided with accommodation by the local authority. If so, then the disregard provision applies, the clock stopped at a time when they were living in Oxfordshire, and Oxfordshire remains the designated local authority.
Designation of local authority
• the children continued to be subject to interim care orders and the interim care plan was explicit that this was a placement with their grandparents with a view to making a transition to their father's care in due course;
• the interim care plan provides that the grandparents will be responsible for the children's day to day care of the children, supported by the father 'when he is able to engage in activities';
• this is the reality of the situation on the ground. The children are living with their grandparents, in their home, and their father is using their house as a base. He stays with them every weekend and when he can in the holidays. The father is looking after the children when he is there, but he is not the one directing or organising their day-to-day care. He is not doing their washing or ironing or the weekly shop, taking them to school, arranging out of school play dates and activities. It is not his permanent home; he is staying in his sons' bedroom when he is there;
• the placement was put in place by the local authority, following assessments. The father had to seek the local authority's agreement before the transfer from Oxfordshire to Rotherham was made and it was not done so before assessments of both father and PGM and her husband had been carried out. They feature significantly as part of the network of support in father's assessment;
• The descriptions of the placement within the assessments and social work statements are repeatedly of the children with their grandparents with a view to a transition to their father's care. It is not described as children placed with their father at grandparents' house;
• There is no question that the children would be able to move in with their father without local authority agreement, support and planning. They are where they are because the local authority has directed that they should be there.
Delay in the care order
Draft judgment sent to parties by email: 29th May 2019
Judgment formally handed down in parties' absence (no amendments): 11th June 2019
Family Court, Oxford
THE FAMILY COURT AT OXFORD CASE NO: OX18C00155
IN THE MATTER OF s31 CHILDREN ACT 1989
Date: 11th June 2019
Third to Sixth Respondents
The parties agree and the Court finds that as of the relevant date when protective measures were instigated, the children were suffering and/or likely to suffer significant harm and that the harm or likelihood of harm was attributable to the care given to them if an Order were not made not being what it would be reasonable to expect a parent to give:-
Threshold is met as follows:
1. The children have witnessed verbal and physically abusive behaviour between their parents.
2. MZ's illegal drug and alcohol use led to her care of the children being chaotic and the children's needs not being met consistently.
3. MZ has been unable to maintain consistent engagement with mental health services which has further contributed to her chaotic lifestyle and unsafe relationships. She has been unable to maintain a tenancy or stable housing.
4. MZ was unable to support her parents in caring for the children and undermined the boundaries in place in their home.
5. MZ has been unable to maintain consistent contact to the children (although it is noted that she has been consistent with telephone contact over the past few weeks).
6. When the children were in Oxfordshire FZ found it difficult to commit to regular contact visits from his home in Rotherham.
7. FZ was not able to offer the children accommodation or a stable home when it was clear Mother's sole care of the children was not safe.
8. The children have additional needs as a result of the care they have received.
15th May 2019