England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		December 4th 2003

David Hershman QC :

Introduction

1. In October 2001 proceedings were commenced in relation to nine children. Eight of them are the children of the First Respondent, who is represented by Ms Jones.
2. The Applicant for care orders is the London Borough of Redbridge ("Redbridge"), the local authority where the mother and children lived at the commencement of the proceedings. Redbridge are represented by Miss Charlton.
3. The father of three of the children is represented by Miss Purkiss.
4. The father of the other children has played no part in the proceedings.
5. The children's guardian is represented by Mr Lynch.
6. On the 24^th April HHJ Tyrer sitting as a deputy High Court Judge made final care orders in relation to two children. They remain in foster care.
7. On the 7^th July 2003 Miss Hamilton QC sitting as a Judge of the High Court made final care orders in relation to two of the children.
8. The court is now concerned with the remaining five children. The First Respondent is the mother of all these children. The Third Respondent is the father of one of those children only.
9. In May 2002 during the currency of the proceedings the children were placed from foster care with the mother in a residential unit to assess her parenting. As a result of a successful assessment the children moved with the mother to rented accommodation in Barking (and hence out of the Redbridge local authority area) and then in August 2003 they moved to Newport in South Wales.
10. The matter is listed for final hearing in March 2004 and directions and timetabling has taken place. At a directions hearing on the 6^th November 2003 before Sumner J the issue of whether any order should be made to Newport rather than Redbridge arose. Accordingly, Newport City Council ("Newport") were joined in the proceedings and attended today represented by Miss Barnett.
11. The matter is listed before me to determine which authority should be designated as the authority to hold the interim care orders and such final orders as may be made.

The issue

12. Because the children and mother now live in Newport with a settled intention to remain there , Redbridge argue that any order made under the Children Act 1989 should be made in favour of Newport.
13. Newport argue that whilst the family may have moved from Redbridge and thus cease to be resident there, Redbridge is where the proceedings arose and any order should be made to Redbridge. Newport are involved and will take on a role in relation to the children but should not be the authority holding the order. Further, as the family have only been in Newport for a few months it would be wrong to impose obligations upon Newport.
14. The mother argues that if Newport become involved now substituted as the authority with responsibility for the case there will be drift and delay. Ms Jones has pointed out that the social services in Newport have not even read the files from Redbridge and there have been three authorities involved in the case. Further there have been detailed and careful discussions and negotiations between the current Redbridge social work team and all this will be lost. Hence, from a practical point of view Newport should not be designated as the responsible authority now and probably not anyway at the final hearing.
15. Miss Purkiss on behalf of the father did not advance a particular argument in favour of designating either authority but argued that once a decision as to designation is made it should apply to interim as well as final orders.
16. Mr Lynch on behalf of the childrens' guardian argued that a decision either way is important to allow for proper planning in this case. Accepting the difficulties that might arise if Newport were to be designated, I was nevertheless urged by him to not delay this decision

The Law

17. A care order may be made only in favour of one local authority. The order must be made placing the child in the care of a designated local authority, which is defined under CA 1989, s 31(8) as:

(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.

18. Further, CA 1989 s 105(6) states

(6) 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 63(1) of the Powers of Criminal Courts (Sentencing) Act 2000](8) ; or

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

19. There have been a number of court decisions on the interpretation of these sections. Bracewell J held in Re BC ( A Minor)(Care Order : Appropriate Local Authority) [1995] 3 FCR 598 that a child who had been the subject of interim care orders during the currency of the proceedings fell within the provisions of section 105(6) and therefore the date to determine "ordinary residence" was the date of the first interim order. Hence what happened thereafter, in that case the mother moving, did not alter the ordinary residence for the purposes of CA 1989 s 31(8)(1)(a).
20. That decision was challenged and not followed in subsequent decisions of the High Court in particular the decision of Wilson J in Gateshead Metropolitan Borough Council v L and another [1996] 2 FLR 179. The Gateshead decision was followed but further refined by Sumner J in Newham London Borough Council v I and Brent London Borough Council [1997] 2 FCR 629. Holman J in North Yorkshire County Council v Wiltshire County Council [1999] 2 FLR 560 also followed the Gateshead decision.
21. Ultimately the decision of Bracewell J in BC was approved by the Court of Appeal in Northamptonshire County Council v Islington London Borough Council [1999] 2 FLR 881 in which Thorpe LJ reviewed the authorities and said at 884

"The debate opens with the decision of Bracewell J in Re BC (A Minor) (Care Order: Appropriate Local Authority) [1995] 3 FCR 598. She held that the disregard provisions of s 105(6) required the court to determine the child's ordinary residence under s 31(8)(a) 'by reference to where he was living before being placed in interim care'. This has been subsequently described as the stop the clock approach and has been much criticised for producing absurdity."

And at 889

"… the attraction of the construction favoured by Bracewell J is its simplicity. The ordinary residence immediately preceding the commencement of the period of disregard is deemed to continue uninterrupted. The court is relieved from what may be a contentious and disputed investigation of what other circumstances have changed within the period of disregard. Any construction of s 105(6) can be said to produce anomalous results. We should not be over-impressed by anomaly arguments where the court's function is simply to determine which authority is to be designated in the care order. I am convinced that s 31(8) was never intended to be a gateway to 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 s 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 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."

And at 890

"In summary, my view of these two interacting subsections is that they should be given that construction that achieves the result for which I conclude they were designed: that is a simple mechanism to determine the question of administration. If that involves a degree of artificiality and the import of legal fiction any misgivings can be met by recognising the limited purpose and effect of the court's function. After all, it must be assumed that all local authorities are equally competent, professional and committed in the discharge of responsibilities cast upon them by the making of a care order. "

22. In Re C (A Child) v Plymouth City Council [2000] 1 FLR 875 the Court of Appeal were asked to consider the implications of the Northampton case. Thorpe LJ having been referred to his earlier judgment said at page 879

"By those words I meant no more than that in leaning towards the simple construction adopted by Bracewell J that should be sufficient to determine all but the most exceptional cases. I did not mean by that passage what Mr Tyzack would have me mean, namely that it gave the judge some sort of discretionary exit from the plain application of the mechanism contained in ss 31 and 105."

23. I have helpfully also been referred to a recent and unreported decision of the Court of Appeal Re H [2003] EWCA Civ 1629 a decision of the 18^th November 2003. It is important to the instant decision to the extent that it examines the decision of Wall J in Re C (Care Order : appropriate Local Authority) [1997] 1 FLR 544 where the Learned Judge concluded that a child was not being provided with accommodation when placed, under an interim care order with parents. Thorpe LJ in Re H specifically approved this reasoning and concluded therefore that s 105(6) would not apply in these circumstances. Further Thorpe LJ held that s 105(6) did not apply when a child is placed with any persons to whom s 23(6) applied namely :

• a parent ;

• a person with parental responsibility ;

• a former residence order holder ; and

• a relative, friend or other person connected with the child ,

because in these circumstances, the child would not be "being provided with accommodation by or on behalf of a local authority". This appears to be so whether or not the placement is under a care order (and therefore whether or not the child is the subject of a care order).

24. I extract the principles that I must apply to the instant case :

1- the first question the court must consider in determining an issue of designated authority under CA 1989 s 31(8) is "ordinary residence" of the child concerned. This is to be determined at the time of the hearing (per Thorpe LJ in Northampton at 887) ;

2- when determining ordinary residence at the date of the hearing the court shall by virtue of CA 1989 s 105(6) disregard any period time during which the child was provided with accommodation by the local authority (per Bracewell in BC and per Thorpe LJ in Northampton 889) described as the "clock stop approach" or extending the period of ordinary residence in the authority from where the child has moved (A) and delaying the notional period of residence to the area where the child moved to (Area B) ;

3- the "clock stop approach" does not apply when the child is with a parent (per Wall J in Re C (Care Order : Appropriate Local Authority) [1997] 1 FLR 544 and per Thorpe LJ in Re H (A Child) [2003] EWCA 1629) , relative friend or other person connected with him ( per Thorpe LJ in Re H) because the child is not being provided with accommodation by or on behalf of a local authority under CA 1989, s 105(6)(c) ;

4- another exception to the "clock stop approach" is if there are "exceptional circumstances" to justify looking at the history during this period of time (per Thorpe LJ in Northamptonshire and in C v Plymouth at 879). The Court of Appeal has made it clear that exceptional means more than a child having acquired a new ordinary residence (in Area B) and severing all links (in Area A) (see Swinton Thomas LJ in C v Plymouth at 880 and Thorpe LJ in Re H paras 9-14);

5- If after having carried out this analysis the conclusion of the court is that the child is not ordinarily resident in any local authority area the court must determine the designated authority in accordance with CA 1989, s 31(8)(b) (per Thorpe LJ in Northamptonshire at 888) ;

6- The test to be applied in determining the "circumstances arose in consequence of which the order is being made" under CA 1989, s 31(8)(b) means the primary circumstances that carry the case over the s 31 threshold (per Thorpe LJ in Northamptonshire at 890). At this point there is no consideration of "exceptional circumstances" or of intervening events.

25. It follows therefore that the test applied of Bracewell J in Re BC cannot be imported into this case to stop the clock for the whole period of the proceedings. At the time of the commencement of the proceedings the children were in care placed with foster carers. At that point in accordance with Re BC s 105(6) applies and so the "ordinary residence" remains their residence at the time of the commencement of the proceedings. From May 2002 the children were placed in local authority accommodation with their mother and so s 105(6) still applies. After February 2003 the children were placed at home with their mother and so in accordance with Re C and Re H s 105(6) does not apply. The children at this point are no longer being provided with accommodation. Therefore the time after February 2003 can and should be considered when determining "ordinary residence" and of course therefore can the time from August 2003 when they moved to Newport. In Newport they were with their mother and so this period of time also is to be considered.
26. The intention of the Court of Appeal in Northamptonshire and the Plymouth case was to establish a simple mechanism to determine the designated authority without the need or ability to review that decision. It seems to me that this could only be achieved if the disregard provisions apply whether or not a child is placed at home under the terms of an interim care order. Given that Re H makes it plain that this is not the case there can only be one solution namely that the clock starts again once a child is placed at home during pending proceedings.
27. Further, implicit in the analysis adopted in Re H was an acceptance that the time to consider "ordinary residence" was the time that the matter was being considered by the court and not for example, at the time of the commencement of the proceedings.
28. The consequence of this analysis is that there must be consideration of "ordinary residence" at the time of the application subject to disregarding some periods of time to which CA 1989, s 105(6) applies. The time at which this matter is determined may therefore be important. It follows that after a passage of time a child may have acquired "ordinary residence" in another local authority area. If the matter was considered earlier it is possible that there would not have been a sufficient passage of time to be satisfied that the child had acquired ordinary residence.

a) The difficulty is that on my analysis a different result might achieved depending on the timing of the determination. There are two possible solutions :

i) the issue of designation should only be dealt with at the final hearing ; or

ii) the disregard provisions should apply irrespective of whether a child is placed with a "relative friend or other person connected with him".

The latter is inconsistent with the Court of Appeal decision in Re H. The former is feasible but perpetuates the uncertainty in the proceedings until the very last minute. A decision made within the proceedings to designate one authority (Authority A) which is capable of variation (to possibly later designate Authority B) whilst helpful and necessary for the management of the interim orders and proceedings, leaves an uncertainty.

29. Accordingly, on the facts the children were ordinarily resident in Redbridge at the time of the commencement of the proceedings in October 2001 and placement in foster care and a residential placement are to be disregarded. The period of time in Barking with their mother from February 2003 to August 2003 and from August 2003 to the present day are to be included. In effect the clock started again.
30. Thus I set myself the test of determining "ordinary residence" in those circumstances. There can be no doubt that the children have ceased ordinary residence in Redbridge. Have they acquired ordinary residence in Newport in three months ?
31. The House of Lords in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 (HL) held that an appreciable period of time and a settled intention are necessary before a new habitual residence is established. This is akin to the establishment of a new "ordinary residence".
32. I note in Northamptonshire Thorpe LJ at 891 said

" Five months of settled residence supplemented by clear plans for a continuing future in [ Authority B ] were plainly enough to constitute the acquisition of an ordinary residence in [ Authority B ]."

33. Here, I accept that the move to Newport is on the basis of a settled intention to remain. In a statement of Adriana Lashley dated the 14^th November 2003 it is clear that since moving in early September 2003 the flat (seen a month later) was clean and tidy, the children Alicia, Ashley and Courtney have been enrolled in the local school. Deanna was registered later in her school and in fact was due to start on the 6^th October. There was concern expressed about the mother's ability to manage to pay the rent for the new accommodation, given her history of failure to do so in the past. The statement reports at paragraph 11.2 :-

" It is my opinion that Barbara has not demonstrated any progress in taking responsibility to secure a roof over her children or considered their need for stability …"

34. The flat seen on the 3^rd October was a temporary flat and the social worker was shown another address, 36 London Street at the proposed home from the 18^th October 2003. They did move to this address and have been there for just over six weeks.
35. Whilst I accept that in some circumstances a move with a settled intention to remain can within a short period of time can achieve the status of "ordinary residence" there are still uncertainties here. It seems to me therefore because of the history of this mother and her family that it is too soon to conclude that the children have established their "ordinary residence" as Newport.
36. Miss Charlton sought to argue that if this were so, then the circumstances of the case were exceptional so that I should look at the fact that the children are now well settled in Newport and have no connection with Redbridge.
37. Those facts whilst important do not in my judgment amount to exceptional circumstances. In any event on may analysis of the legal test, it would not be part of my consideration at this stage.
38. The family have only lived in Newport for three months and in their current home for six weeks. The mother must establish a home for herself and the ability to finance it. She has not yet done so. Perhaps even looking forward to the final hearing she may not do so.
39. Having concluded that the children are not ordinary resident in any local authority area I am drawn to consider the test in CA 1989, s 31(8)(b). It was agreed at the bar that the circumstances giving rise to the proceedings arose in the Redbridge area and subject to my determination of anything exceptional justifying looking again at the facts, in those circumstances Redbridge must be designated.
40. Having already excluded exceptional circumstances in this case I conclude that the designated authority in these proceedings is and should be the London Borough of Redbridge.
41. As I have already stated, on my interpretation of the law a different result might be achieved at a later date. This I am afraid is the consequence of my decision, but it is consistent with the decision of Wall J in Re C (Care Order : Appropriate Local Authority) [1997] 1 FLR 544.
42. There is no bar to Redbridge making the same application later (namely that Newport be the designated authority), assuming it is justified on the facts and the mother and children have properly settled in Newport, there is every reason to believe that a later decision might produce a different result. I appreciate that this allows the uncertainty to continue. It means that Redbridge must remain involved in the case and hold the interim orders but Newport must be aware of the real possibility that ultimately the final order may be made in their favour.