England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		The Civil Hearing Centre Coverdale House East Parade Leeds
		6th April 2004

MR. JUSTICE BODEY:

1. This is a contest between two local authorities as to which should be designated for the purpose of further interim care orders, and later for the purpose of full care orders, in respect of two children.

The contestant local authorities are Kirklees Metropolitan Borough Council ("Kirklees") which has brought these care proceedings, and the London Borough of Brent ("Brent") where the two children now live.

2. The two children are J, born in August 1992, who is therefore aged eleven, and M, born in March 1995, who will therefore soon be nine.
3. The mother of both children ("the mother") is S, aged 40 (the First Respondent) who was caring for them until December 2002. By that stage she was in a relationship with a partner, B, aged 49, who is the Second Respondent. The father of the two children ("the father") is R, the Third Respondent, who is aged 67, with whom the mother had a relationship leading to the births of the two children. However they never married, and so he does not have parental responsibility.
4. Until interim care orders began to be made under which the children remain to date, the mother was the only person with parental responsibility. Unhappily, she has long standing mental health problems, to the extent that she has been and is represented by the Official Solicitor in these proceedings.
5. On 19th December 2002, J told a teacher at school that the mother had assaulted her; she further disclosed domestic violence between the mother and B. When video interviewed subsequently, M disclosed having witnessed the mother stabbing B.

The mother was subsequently charged arising out of the stabbing incident, but was found unfit to plead, although the jury held that she had carried out the actus reus. As a result, she has remained, and remains, in a secure psychiatric unit under a Restriction Order without limit of

time.

Psychiatric assessments of the mother, culminating in June 2003, concluded that she is likely to remain an in-patient for 18 to 24 months from that time, and that she is most unlikely to be able to care for either child for at least a similar period of time.

6. On 19th December 2002, under a Police Protection Order, the children were removed from the mother and were placed in foster care by Kirklees. On 20th December 2002 came the first of a number of interim care orders, following which the children remained in foster care whilst various assessments were prepared.
7. Each of the mother, the father B lives in Kirklees, and each is and will be having some form of contact to the children, the nature of which contact differs as between each individual adult (the details not being relevant for the purposes of this Judgment).
8. One of the relatives assessed by Kirklees was the mother's elder sister, E, aged 41, who lives in the London Borough of Brent. She has a daughter of her own, N, who was born in September 1988, and is therefore aged 15.
9. The assessment of E was very successful and on 16th August 2003, with the agreement of all parties (the mother, the father, B, Kirklees and the Children's Guardian) both children were moved to E's home in Brent. They have lived there ever since that time. All parties continue to support the placement, and no-one suggests that it should be changed.
10. In November 2003 E was approved by the Kirklees panel as a foster carer. I am told that this approval was as a short term foster carer, as E has rather small and less than ideal accommodation in Brent.
11. It is relevant to set out extracts from the assessment of El, starting with the report of Elaine Berry, social worker, dated June 2003 (ie before the children moved to E):

"E and F [another sister of the mother and E] feel very strongly that J and M are as much part of the family as their own daughters are, and they have exactly the same responsibilities for them ... In talking to E I have been extremely impressed with her commitment to J and M, and the genuine love for them expressed by both her and N. Taking J and M in will involve some sacrifice on the part of both E and N, but there is no question or hesitation on the part of either of them that that is what they want to do."

The report of Miss Berry continues:

"N regards the possibility of J and M coming to live in her home with absolute delight. She says she has grown up with them, and regards them as sisters ... The children have a need for permanence, and E has a total commitment to permanence in this placement. She says that she wants J and M to stay around, even after they are grown up, if they wish to do so."

12. In the Children's Guardian's report dated approximately the 21st July 2003 (also before the move to E) there was reference to the children's expressed wishes and feelings. J's were, "... in future, I would like to live with my Auntie E in London because she never drinks or shouts"; and M's were, "... I would like to live with my Auntie E as she is kind."
13. The Care Plans for the children dated 16th December 2003 under the heading "Likely duration

of placement" read as follows:

"E has made a definite commitment to permanency for this placement. She wishes J and her sister to be aware that they belong there and are welcome to stay until adulthood or beyond, should they wish to do so."

14. Lastly, in her report dated approximately 14th January 2004 the Children's Guardian said:

"The children have been fortunate in that they have a very supportive extended family, who have been able to offer them permanence through a placement with their Aunt E."

15. So, barring some unforeseen and dramatic change of plan, the children are clearly going to live with their Aunt E in Brent for their long term indefinite future.
16. It is against this background that the question arises as to which local authority should be designated.
17. Kirklees, the father, B, Aunt E and the Children's Guardian all say that the designated local authority should be Brent. All have put in Skeleton Arguments to that effect, and all support the continuation of the current arrangements. The mother (through the Official Solicitor) also supports the current arrangements, although the Official Solicitor is neutral as to which local authority should be designated.

As a result of the similarity of the arguments being presented by each of the parties just mentioned, I released from the hearing all parties except the two local authorities, since I did not feel that such expenditure of public funds was justified.

18. In answering the question as to which local authority should be designated, the position is governed fundamentally by S.31(8) of the Children Act 1989.

That section reads:

"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."

It has been established that sub paragraph (b) (above) can properly be read as: "... where the child does not ordinarily reside ..." [emphasis added]: Northamptonshire C.C. v. Islington L.B.C. [1999] 2 FLR 881.

19. At first sight it may appear that the ordinary residence of these two children is in Brent, and that therefore Brent should be designated. However, Brent submits through Mr. Casey of Counsel (who prepared a Skeleton Argument) and Mr. de Souza of Counsel (who represented Brent at this hearing) that this is too simple a view.
20. They submit this for two reasons: (a) they rely on the operation of S. 105 of the Act, to which I will shortly come; and (b) if that argument fails, then they say that the children have not acquired ordinary residence in Brent, either because (as they submit) the children are dependent on the mother's ordinary residence, which is in Kirklees; or else because the children have not been in Brent long enough to have acquired ordinary residence there.

Accordingly, it is asserted by Brent that the children remain ordinarily resident in Kirklees or that, if they have lost their ordinary residence in Kirklees without gaining it in Brent, then that S.31(8)(b) (above) applies.

21. So, one way or the other Brent submits that the designated local authority should be Kirklees.
22. I deal with these submissions in turn. As to submission (a), S. 105 reads:

"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."

23. It is necessary to look at that section in conjunction with S.23 of the Act. S.23(l) reads:

"It shall be the duty of any local authority looking after a child (a) when he is in their care, to provide accommodation for him ..."

By S.23(2):

"A local authority shall provide accommodation ... for any child whom they are looking after by

(a) placing him ... with (i) a family, (ii) a relative of his, or (iii) any other suitable person ..."

(The Section continues, but it is not thereafter relevant to this decision)

By S.23(3):

"Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent, unless he falls within subsection(4)."

By S.23(4):

"A person falls within this section if he is (a) a parent of the child, (b) a person who is not a parent of the child, but who has parental responsibility for him, or (c)where the child is in care, and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made."

By S.23(5):

"Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the Secretary of State"

By S.23(6):

"... any local authority looking after a child shall make arrangements to enable him to live with (a) a person falling within subsection (4), or (b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare."

24. The operation of S. 105, and its reconciliation with the above subsections of S.23, has given rise to some difficulty; but clarity was introduced on one of the contentious areas when it was held by the Court of Appeal in Northamptonshire County Council v. Islington London Borough Council (above) that (reading from the headnote):

"The preferred approach to periods which had to be disregarded under S. 105 was notionally to extend the child's residence in the authority area where he or she had been ordinarily resident immediately before the commencement of the disregard period. Developments affecting the family during the period to be disregarded, such as the movement of the entire family into a different authority area, could be considered, but only in exceptional circumstances."

25. The Court of Appeal further held in that case that, in carrying out the designation exercise, the court should construe the relevant sections as to provide "a simple mechanism" for designation, a theme repeated in the later case of C. (A child) v. Plymouth County Council [2000] 1 F.L.R. 875, where the headnote reads:

"... the whole purpose of the statutory mechanism was to provide a relatively unsophisticated method of designating which of two or more possible local authorities should carry the statutory responsibility. It was not to be an area heavily investigated as a prelude to a choice of one authority in the exercise of a broad discretion - per Thorpe L.J., at 878.E."

26. In the earlier case of Re C. [1997] 1 F.L.R. 544, Wall J. (as he then was) had held that children allowed by a local authority to live at home with their mother were not children provided with accommodation within S.23(l)(a) of the Act, and that therefore the S.105 'disregard' did not apply.

At page 549 Wall J. said:

"In my judgment, a local authority which permits children to remain living at home under an interim care order in care proceedings is not providing accommodation for them within S.23(l)(a). S. 105(6)(c) accordingly does not apply, and I am free to look at the ordinary residence of the children under S.31(8) without having to apply the disregard under S.105(6). Apart from any arguments based on common sense or plain English, the inappropriateness of describing children living at home as living in accommodation provided by the local authority is, I find, supported by the statute itself."

Having then referred to S.23(6) (above), Wall J. continued:

"In my judgment, therefore, what has occurred in this case is that the local authority has allowed the children to live with their mother under S.23(5) of the Children Act, and accordingly this is a placement by the local authority within the Placement Of Children With Parents, etc., Regulations 1991. The language used in S.23(5)and (6) 'living with' is plainly to be contrasted with the term 'provide accommodation'."

27. In Re H. (Care order: Appropriate local authority) [2004] 1 F.L.R. 534, that decision of Wall J. regarding a child living at home with his mother was reviewed and approved by the Court of Appeal in respect of a child allowed to live with relatives (in that case grandparents).

There, in a Judgment with which Parker L.J. and Dyson L.J. agreed, Thorpe L.J. set out the competing arguments in respect of children placed with a relative. He said at paragraph 11:

"Mr. Baker Q.C. submits that the disregard provision does not apply, since S. [born on 14th October 1997] was not being 'provided with accommodation by or on behalf of a local authority' within the meaning of S. 105(6)(c) when he came to live with his grandparents in August 2001 ... Mr. Casey, in reply, submits that S.'s arrival with his grandparents established a foster placement. His grandparents are his foster carers, and accordingly he was, and is, being provided with accommodation by Oxfordshire County Council."

28. As between those competing arguments, the argument of Mr. Baker succeeded and the argument of Mr. Casey was rejected. Thorpe LJ. stated (in Re H) at paragraph 15 of his Judgment:

"Given the difficulty that has arisen in the application of the disregard provision, I favour a narrow construction of its extent. On that approach I do not consider that S. was being provided with accommodation by Oxfordshire once Wall J. ordered his return from foster care to the family in Norfolk. The decision of Wall J. in Re C. [above] supports that conclusion. In that case, Wall J. held that a local authority which permitted children in care to remain at home with their mother was not providing accommodation within the meaning of S.23(l)(a), and accordingly S.105(6)(c) did not apply. Wall J. reasoned this conclusion carefully and extensively between548E and 550H. In my judgment, the conclusion which he reached was correct for the reasons which he gave."

29. Thorpe L.J. continued at paragraph 17 of his Judgment:

"The effect of S.23(6) is to cast upon the local authority a duty to make arrangements to enable a looked after child to live with a person or family to whom he is closely related, or with whom he is closely connected. Once that is achieved, the looked after child ceases to be provided with accommodation within the meaning of S. 105(6), and begins to live with the relative or family arranged by the local authority pursuant to their duty under S.23(6)."

30. Mr. Hayes, for Kirklees, submits that the instant case is on all fours with Re H.

In response, Mr. Casey and Mr. de Souza first submit that S.23(2) of the Act was not addressed in Re H. I cannot accept that submission. Wall J. referred in terms to S.23(2) in Re C. [see page 548G] and that paragraph was plumb within those paragraphs (namely paragraphs 548E to 550H) specifically approved by Thorpe L.J. at paragraph 15 of Re H.

31. Second, Mr. de Souza submits that Re H. was decided on its own particular facts, and was not laying down a general principle that any child placed with a relative is automatically to be treated as placed under S.23(6)(b) and therefore outwith S.105. Rather, the submission continues, every case must be looked at according to its own circumstances so as to evaluate the nature, type and likely permanence (or otherwise) of the arrangements proposed, thereby determining factually whether the arrangements fall under S.23(l) and (2) (in which case S. 105 applies) or under S.23(6) (in which case S.105 does not apply).
32. In support of this submission, Mr. de Souza asserts at the outset that in Re H. the Court of Appeal did not refer to a dicta in C. v. Plymouth (above) where Thorpe L.J. said:

"... as to the period during which the mother and child lived with Mrs. P. [the maternal grandmother], again I do not feel that we have sufficient information or evidence to arrive at a confident conclusion, although obviously it may be that, on investigation, it would emerge that that arrangement constituted accommodation by or on behalf of a local authority within the terms of S.105(6)(c)."

That, says Mr. de Souza, clearly shows the Court of Appeal being prepared to consider evaluating the type, nature and duration of arrangements for the care of a child or children as part of a process of determining what type of arrangement existed.

33. However, I cannot accept the submission that dicta in Plymouth were overlooked in Re H. It is clear that Thorpe L.J. did have the Plymouth case well in mind in Re H.; for he referred to it specifically in paragraph 2 of his Judgment.
34. Turning next to the substance of the submission that Re H. turned on its own facts, I acknowledge that the facts in that case demonstrated a strong overall connection by the child concerned with Norfolk, since he had come from there and the adults involved still lived there. He had only been sent to the area of the alternative local authority (Oxford) for what turned out to be about one year and so he was in a sense "coming home" to Norfolk (as Brent put it during this hearing); whereas here it is submitted that the facts are the other way about, i.e. that the children have gone from Kirklees, where they lived all their lives until August 2003, to Brent where they have otherwise had no connection (except for the residence there of their Aunt E).
35. I cannot however accept the submission that Re H. was decided on that asserted basis; still less that such reasoning represents the ratio of that case. It is simply not the way the Court of Appeal put it.

The Judgment of Thorpe L.J. is clear and unambiguous, namely that he was talking in general terms and as a matter of construction of the statutory provisions. If the Court of Appeal had wished to confine the decision in Re H. to the particular facts of that case, it would surely have done so.

36. However difficult it may seem to be to correlate S.23(l) and (2) with S.23(6)(b) (and I respectfully agree with Wall J. in Re C. that the key would appear to be as between "placing ... by providing accommodation with a relative" in the former subsections, and "... making arrangements to enable the child to live with a relative" in the latter subsection) the fact is that Re H. is binding on this court, and I could not therefore "depart from it" as Brent's submissions effectively invite me to do; nor can I distinguish it on any basis asserted by Brent. Not that I would wish to take either of these steps in any event, since a designation to Brent seems to me to be, as it happens, the common-sense outcome of this application.
37. Whether or not it is permissible in an exceptional case to look, for example, at the ephemeral nature of arrangements with a relative, and to conclude that the particular placement concerned is under S.23(l) and S.23(2), rather than under S.23(6), I do not find it necessary on the clear facts of this case to consider further. Such an argument does, however, look to me to be likely to have to be addressed to the Court of Appeal, given the clear wording of Re_H., and the strong impetus from the Court of Appeal to keep the application or the designation formula as simple as the legislation permits.
38. That disposes of Brent's first argument, to the effect that the S.105 'disregard' applies and that therefore the appropriate local authority for designation is Kirklees.
39. Brent's second argument is argument (b), that the children are in any event not ordinarily resident in Brent. The starting point in this respect is the speech of Lord Brandon of Oakbrook in C. v. S. (Minor: Abduction: Illegitimate child) [1990] 2 All E.R. 961, at 965:

"The first point is that the expression 'habitually resident' [synonymous with "ordinarily resident"] as used in Article 3 of the Convention is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains.

The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.

The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day, if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A, but not yet have become habitually resident in country B.

The fourth point is that where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers." [Emphasis added]

40. It will be remembered that Brent's Skeleton Argument asserts (i) that the mother's ordinary residence in Kirklees governs the child's ordinary residence and/or (ii) that the children have not yet gained ordinary residence in Brent.
41. As to the first of these submissions: under the interim care orders, Kirklees shares parental responsibility with the mother [S.33(3)(a) and S.2(5) of the Act].

The mother, through the Official Solicitor, has agreed the placement with Aunt E, this being clearly a placement 'for permanence' (see above).

Neither Counsel dissents from the proposition that a parent or parents with parental responsibility can make arrangements for a child to live in a different country (or in a different local authority area) from themselves, and thereby change the child's ordinary or habitual residence from their own. That is effectively what has occurred here, and it clearly supplies the necessary 'intention', in my judgment, as is referred to in C. v. S. (above).

42. In parenthesis, even if the mother had not agreed or did not still agree to the move to Brent, Kirklees could nevertheless take the necessary decision by the use of its shared parental responsibility [see S.33(3)(b)] which would again have provided the necessary intention for the purposes of C. v. S. (above).
43. As to Brent's alternative argument that the children have not yet gained ordinary residence in Brent: they have been with Aunt E for eight months, and all involved see the arrangement as permanent. In the Northampton case Thorpe L.J. said at page 891:

"... five months of settled residence, supplemented by clear plans for a continuing future in Islington, were plainly enough to constitute the acquisition of an ordinary residence in that area."

44. I see no grounds at all for finding that the length of time here (eight months) is insufficient to create ordinary residence in Brent. On the contrary, Brent is where any of the parties (and the children themselves) would say that the children live. Standing back, it is clearly where they are ordinarily resident. I therefore reject Brent's second main argument that ordinary residence in Brent has yet to be established.
45. For these various reasons, I conclude that both Brent's arguments fail, and I hold that it is the local authority to be designated under the statute.