England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEEDS DISTRICT REGISTRY

		Coverdale House 13-15 East Parade Leeds LS1 2BH
		22nd June 2012

A. Introductory.

1. I said during the hearing that, given the simplicity of the underlying issue, I would be giving a short and straightforward judgment. I have failed in both respects.
2. This is an appeal by Sheffield City Council ("Sheffield") against an order of District Judge Fairwood dated 28th January 2012 that Sheffield be the designated local authority in respect of a final care order regarding a young man CM. He was born in October 1997 and is now aged 14 years 8 months. Sheffield's case is that the correct local authority to designate is Bradford Metropolitan District Council ("Bradford"). That is the local authority which commenced the care proceedings relating to CM, and which had been the designated local authority for all interim care orders until the hearing under appeal. The issue between the two local authorities, as to which should be designated to hold the final care order relating to CM, raises questions:

(a) about the 'placement' of children as between local authority areas; and

(b) about the construction of certain amendments to the Children Act 1989 made by the Children and Young Persons Act 2008: in particular whether they have changed case law about 'disregarding' time spent by a child in the care of relatives in a second local authority's area when determining the child's ordinary residence (ordinary residence being the test for deciding which local authority should hold a care order).

I am told that other cases about designation are awaiting this decision.

3. I will first set out the factual background and then the statutory framework. The other way round would have been even more difficult to follow. It will not be obvious at first sight why I have set out some of the factual material, but it is included for reasons which should become clearer. There is no Respondent's Notice by Bradford seeking to uphold the decision of 28th January 2012 on different grounds. However, Bradford's case was clearly flagged up in the Skeleton Argument of Mr Hayes, who represents Bradford. Sensibly, no point was taken on the lack of a Notice by Ms McFadyen, who represents Sheffield, leading Miss Tai. So the appeal has proceeded much as if a hearing at first instance.

B. Factual background.

4. The background to the care proceedings is quite long and relatively complex, but can be summarised as follows. The mother of CM ("the mother") has two children by two different fathers (neither of whom has parental responsibility). The older child is CM himself and the younger is a daughter, JM, who was born in 2004 and is now 7. JM plays no part in respect of the issue as to designation, although she too was the subject of the care proceedings.
5. CM is now cared for by his father's sister (CM's paternal aunt) a Mrs Z, who lives in Sheffield with her husband, Mr Z. They have cared for him constantly since 9th April 2011, in circumstances to which I will come. In April 2010, long after CM's mother and father had separated, CM's father made an application for defined contact to him. This led to a S 37 report dated November 2010 prepared by Bradford, where the mother lived with the two children. It raised concern about the circumstances of both children. It gave graphic descriptions of the mother's angry and aggressive behaviour in front of the children, with shouting, screaming and telling CM to "get out". The social worker was worried about the mother's state of mind. CM told her (the social worker) that if he went to contact with his father, his mother "would flip". Sometime later the mother was psychiatrically diagnosed within the care proceedings as suffering from a borderline personality disorder, with marked paranoid personality traits, some schitzotypical disorder features, dysfunctional strategies and denial of her condition. She challenged this diagnosis in the care proceedings, but it was accepted by the District Judge at the final hearing on 21st March 2012.

The S37 report (of November 2010) concluded that, if the children were to be removed from the mother's care, Bradford would support Mrs Z were she to apply for a Special Guardianship order in relation to CM. In spite of the social worker's concerns that both children were suffering emotional and psychological harm due to the mother's mental health difficulties, they continued to be cared for by the mother as a single mother at her home in Bradford. Ms McFadyen prays in aid the S37 report as demonstrating that at the time of the events to which I am about to come, Bradford already had real concerns about the mother's care for the children and I accept that point.

6. On Saturday, 9th April 2011, CM (then aged 13 years 5 months) had contact with his father. When he was brought back to the mother's home in Bradford by his father and Mrs Z, there was a serious altercation between the mother and CM on the threshold of her home. It involved serious pushing, scuffling and shouting as between them and the mother ended up on the ground. Each blamed the other for what had occurred. The police were called and recorded the incident in an Incident Report dated 9th April 2011. It refers to the mother refusing CM entry into the house 'unless he accepted what he had done'. CM told the police that he did not wish to remain at home with the mother as he was 'sick of the constant arguments'. It is recorded that he was 'clearly not wanting to reside with the mother'. There was a discussion between the adults as to what should be done and the mother says in a statement "…the police recommended that CM remain with [the Zs]". The upshot was that the police oversaw CM being taken by Mrs Z to stay with the Zs overnight at their home in Sheffield, in order 'to prevent a further argument and any escalation between the feuding parties'. The police record describes this as having been 'decided' and it is nowhere suggested that the mother opposed it. The inference is that she agreed to this arrangement on a temporary basis, although in fact it turned out to be permanent.
7. On Monday, 11th April 2011 Bradford was made aware of the events of the Saturday evening and met with the relevant individuals: the mother, CM and the Zs. CM was still expressing strongly his determination to stay with the Zs. Coincidentally, there was a prearranged PLO meeting that day, which the mother attended. The Minutes state that:"…if the mother does not agree to accommodation today our [Bradford's] position is that CM will not go back and [we] will not force him to go back [and] will seek emergency orders from the court". Later, the Minutes record: "…the mother does not oppose CM staying with his aunt [Mrs Z] for the time being until assessments are completed". On this basis CM continued to live with the Zs.
8. Ms McFadyen submits that the outcome of this meeting on 11th April 2011 should be construed as the start of a placement of CM by Bradford with the Zs. Mr Hayes submits that it merely represented the mother agreeing to the continuation of the existing consensual arrangements pending assessments. That would be conceptually different in law from a placement by Bradford. He would rely on the social worker's statement dated 17th May 2011, that Bradford '…intends to place CM with the Zs', as supporting the analysis that, even by the date of that statement, no placement had yet taken place.
9. On 18th April 2011 Bradford prepared a 'Pre-placement Checklist for Temporary Approval of Connected Person Family and Friends Carers Placement' in respect of the Zs. It found them entirely suitable to care for CM. It refers to CM as having had regular contact with them from the age of 16 months and to his having a bedroom of his own at their house in Sheffield. It records that when he arrived at the Zs on 9th April 2011 he was pleased to see that his bedroom was still in the same state as when he had last stayed. There is reference in the assessment to a strong, close relationship between him and the Zs throughout his childhood and to their speaking about him with much love and affection. They mentioned his having been accustomed to asking to live with them if there was a trouble at home. The Zs were described as a calm couple able to set boundaries and negotiate rules with CM. Interactions between them and CM were seen to be '…relaxed, comfortable, loving and fun'. Ms McFadyen relies upon the preparation of this 'Pre-placement Checklist' as evidence that Bradford must have been regarding itself as under a duty to be placing and accommodating CM with the Zs. I agree that the existence of the document could support such an inference. The document is also significant, for reasons which will become clearer, as to the picture it paints of the Zs' household. That picture suggests that it would be one which CM would experience as an orderly, calm and loving environment, as compared with his life at his mother's home characterised by stress and anxiety.
10. On 19th May 2011 Bradford issued applications for care orders in respect of both children. In its Skeleton Argument dated 6th December 2011 for the hearing before the District Judge on the issue of designation, Bradford stated that "…by 19th May 2011 CM had been accommodated to the Zs with the agreement of the mother and reference to the placement was not directed to or approved by Bradford at the initial placement (sic)". Although the syntax of that sentence has gone wrong, it seems to be confirming that it was the mother who was agreeing to the arrangements for CM (whereby he was living with the Zs) as it was not something 'directed or approved' by Bradford.
11. On 25th May 2011 Bradford paid the Zs a one off sum of £248 for CM as a 'child in need'. On 8th June 2011, the Family Proceedings Court heard Bradford's application for interim care orders, adjourning the case to 27th June 2011 for a two day contested hearing. The adjournment order of 8th June 2011 had the following preamble:

"Upon it being recorded that the mother consents to CM remaining in his current placement (being accommodated under S20) with the Zs until the next hearing…"

Bradford accept and assert that, as from that date, but not before: (a) CM was accommodated by them [Bradford] and that (b) they [Bradford] began to make regular payments to the Zs as 'friends and family carers of an accommodated child'.

12. On 27th June 2011, at the adjourned contested hearing, interim care orders were made in favour of Bradford in respect of both children. As regards CM, those interim care orders were subsequently continued in favour of Bradford until the order now under appeal dated 28th January 2012, since when they have been in favour of Sheffield. The final care order regarding CM, which the District Judge has already said he is going make, will be made by him at a review hearing in July 2012. The outcome of this appeal will determine which local authority his order designates.

C. Now for the statutory framework.

13. That is the factual background to which the statutory framework about designation has to be applied. It is not a framework which is particularly easy to follow. It is relevant when, as here, a child moves from one local authority area ("local authority 1") to another local authority area ("local authority 2"). The starting point is S 31(8) of the Children Act 1989 that:

"The local authority designated in a care order must be:

(a) the authority within whose area the child is ordinarily resident…."

That provision has to be read together with S 105(6) of the Act, which says 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".

This 'disregard', or 'stop the clock', provision is intended to retain 'local authority 1' as the designated local authority when 'local authority 1' has arranged for a child to be accommodated within the area of 'local authority 2'. It is a provision which has caused some difficulty, sometimes because of the need to say with precision whether and when a child became 'provided with accommodation by or on behalf of a local authority'.

14. By S 20(1)(c) it is provided that:

"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of….

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care".

That section is, however, itself subject to S 20(7) of the Act, which provides that:

"A local authority may not provide accommodation under this S for any child if any person who:

(a) has parental responsibility for him; and

(b) is willing and able to:

(i) provide accommodation for him; or

(ii) arrange for accommodation to be provided for him, objects".

The intention of that sub-section is clear. Although a child in need may appear to require accommodation, the local authority is not to provide such accommodation if there is an objection to its doing so by anyone with parental responsibility who is willing and able either (a) to provide accommodation for the child or (b) to arrange for accomodation to be provided. It is not easy to see in such circumstances how S20(1) would apply in the first place, because the child would not then 'appear to require accommodation': but there it is.

15. S 22(1) defines a child who is 'looked after' by a local authority, 'looked after' being the phrase which, by new S22C, triggers the decisions required of a local authority as to where the child is to live. A child is 'looked after' if he or she is:

"(a) in their [the local authority's] care [i.e.is the subject of a care order]; or

(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act)…" [the remainder does not affect the issue on this appeal].

16. New S 22A provides that: "When a child is in the care of a local authority, it is their duty to provide the child with accommodation". That section did not apply here until the first interim care order dated 27th June 2011.
17. It is new S 22C, replacing former S 23 as from 1st April 2011 (a week before CM moved to the Zs) which sets out the ways in which children who are being 'looked after', as just defined by S 22(1), are to be accommodated. By S 22C(2) and (3) the local authority must make arrangements for the child to live with a person who is either a parent of the child, or who has parental responsibility for the child, or who was the holder of a residence order before the care order was made. For convenience, I shall refer to these three categories merely as 'a parent'. That duty to make arrangements for the child to live with a parent does not however apply when it would not be consistent with the child's welfare or not reasonably practicable to do so (S 22C(4)). If a local authority is unable to make arrangements for the child to live with a parent then, by S22C(5), the local authority "…must place the child in the placement which is in their opinion the most appropriate placement available". By S 22C(6) the word 'placement' is defined as being:

"…(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]".

By S 22C(7) preference as between these options is to be given to a placement with a relative, friend or other person connected with the child who is a local authority foster parent.

18. S 22C was, as I say, inserted into the Children Act 1989 as from 1st April 2011 by the Children and Young Person Act 2008, replacing old S 23. Old S 23, being differently structured from the new sub-sections, referred to a local authority 'making arrangements to enable the child to live with' a parent, or with a person with parental responsibility, or with a relative, friend or other person connected with the child. The way that section (old S 23) was constructed, putting parents and relatives into the same category of persons with whom a local authority was to make arrangements for the child to live, is what enabled the Court of Appeal in Re H [2004] 1 FLR 534 to conclude that the child in that case (placed with grandparents) was not 'being provided with accommodation by or on behalf of the local authority' for the purposes of S 105(6) above. It followed that since S105 (6) did not apply, that child's time living in the area of 'local authority 2' was not to be disregarded. Therefore, as the child there had obtained ordinary residence in 'local authority 2' for the purpose of S 31(8), 'local authority 2' was the correct local authority to be designated. This outcome was described by Lord Justice Thorpe at paragraph 18 of his judgment as a 'sensible decision', inferentially because it vested the care order in the local authority for the area where the child was living.
19. With the repeal of S 23 and with the new and different layout of the statutory duties under S 22C, the approach adopted in Re H [2004] 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 S 105(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 [2004] 1 FLR 534 line of authorities was itself criticised in later cases, notably in R (SA) v Kent County Council [2011] EWCA Civ 1303 (CA) has become irrelevant as regards cases governed by the new law, by reason of the repeal of S 23.

D. The decision of the District Judge, dated 28th January 2012, designating Sheffield.

20. In his judgment the District Judge summarised the law as it was until 1st April 2011 (being eight days before CM was removed from the mother's home to the Zs). He referred to what he described as the established case law, citing the main authorities including Re H [2004] 1 FLR 534 above. He went through S 23 and held that what had happened here constituted an arrangement under S 23(6) of the Children Act 1989. Following Re H [2004] 1 FLR 534 he held that CM was not therefore being 'provided with accommodation' by Bradford within the meaning of S 105(6). Accordingly, none of the time which CM has spent living in Sheffield was to be disregarded under S 105(6) and so CM was held to be 'ordinarily resident' in Sheffield for the purpose of S 31(8). That is why the District Judge designated Sheffield. He then noted that S 23 has been repealed and replaced by new S 22A to G. He described this area of law as followed the approach under old S 23. He said he would sympathetically entertain any request by Sheffield for permission to appeal and would transfer such appeal to the High Court with a recommendation that it be not released to a S 9 judge or a deputy.
21. With respect to the District Judge, I do not consider that this was a sound approach. The new law was in force by the time of the relevant events and stood to be applied at every level. The rewording of the relevant provisions of S 23 has removed the basis upon which the court had previously determined that a child placed with relatives was not being 'provided with accommodation„ by the local authority, from which it had formerly followed that the S 105(6) „disregard' did not apply. In my judgment, the District Judge erred by effectively applying the old approach. He thereby produced a result which, leaving aside the period from 9th April 2011 to 8th June 2011 (to which I will come) would not in my view be produced by the new law.
22. In his written Skeleton Argument, Mr Hayes argued that it would be surprising if the new provisions had been intended to change the old, well-established approach to designation under Re H [2004] 1 FLR 534, because one would have expected to see that intention more clearly expressed. He also drew my attention to pages 571 and 680 of the 2012 edition of the Family Court Practice (the 'red book') where, in the context of the new provisions, it is still stated:

"A child placed with relatives ceases to be 'provided with accommodation by or on behalf of a local authority' within the meaning of the Children Act 1989 S 105(6) (Kirklees Metropolitan Council v London Borough of Brent [2004] 2 FLR 800; Re H (Care Order: Appropriate Local Authority) [2004] 1 FLR 534)".

Mr Hayes said in his Skeleton Argument that that suggests there has been no change in approach with the coming into force of the new provisions. However, as the hearing progressed, he came to acknowledge that these arguments were not going to carry the day and, in the result, both sides accepted that I should myself determine the substantive issue of designation at this appeal. Before leaving the point about the Family Court Practice, however, I should add that in my view the commentary just cited now requires removal or other appropriate revision.

E. At what point in time did CM beco me 'provi ded w ith accommodati on by or on behalf of' Bradford, for the purpose of S 105(6) ?

23. It is rightly conceded by Bradford that as from 8th June 2011, CM was being 'provided with accommodation' by Bradford with the Zs. It was from that date that the mother agreed to his being accommodated by Bradford under S 20 (albeit that it is difficult to see that he 'required accommodation' under that section, being satisfactorily accommodated with the Zs where he very much wanted to be). It was also from that date that Bradford assumed responsibility for that arrangement, by starting to make the Zs regular payments as carers. That being so, the focus emerged at this hearing on the period from 9th April 2011 (when CM went to the Zs) to 8th June 2011 (when the S105(6) disregard started).
24. The issue is whether or not during that discrete period of time CM was 'being provided with accommodation' by or on behalf of Bradford? If so, then S 105(6) would apply in respect of the whole of the time that CM has lived in Sheffield and thewhole period would be disregarded. Bradford would then be designated under S 31(8) because his ordinary residence would have remained in Bradford's area throughout. If on the other hand he was not being 'provided with accommodation by or on behalf of' Bradford during that two month period, then such period would not be caught by S 105(6) and so would not be disregarded (i.e. would have regard paid to it). The question would then be as to whether or not by 8th June 2011 CM had achieved the status of having ordinary residence in Sheffield for the purpose of S 31(8)?
25. Ms McFadyen's case is that on Monday, 11th April 2011, when Bradford learned of the events of the Saturday evening, they came under an immediate duty under S 20(1) (above) to provide CM with accommodation. She submits that they exercised it by being 'instrumental' in supporting his de facto move to the Zs. She says this is evidenced by the preparation of the above 'Pre-assessment Checklist' document. Relying on paragraph 55 of London Borough of Suffolk v D [2007] EWCA Civ 182 (CA) she submits that, as soon as that duty under S 20(1) arose, CM became a 'looked after child' for the purpose of S 22C, thus setting in train the statutory formula by which Bradford were required to accommodate him. And Bradford did so, she says, by way of a placement with a relative under S 22C(6)(a), thereby fulfilling their asserted statutory duty.
26. Mr Hayes does not accept this analysis. He submits that everything up to 8th June 2011 was done with the mother's agreement to CM's being with the Zs, although not with her consent to this being by way of a placement by Bradford. That consent by the mother (to the arrangement being characterised as a 'placement' by Bradford) was manifestly only forthcoming, he says, on 8th June 2011, when it was specifically so stated in the preamble to the order of that date.
27. It is not easy to analyse the precise status of CM's being with the Zs for those first two months. There is a paucity of evidence and I suspect that little if any attention was given at the time to such abstruse points as have now emerged. No doubt the professionals were focused on dealing pragmatically with the highly-charged home circumstances and on prioritising the welfare and safety of the two children. Further, I imagine that the issue and sub-issues now identified would not have been prepared to be litigated as specific issues, but rather cropped up as afterthoughts. This is because the test is supposed to be treated as a simple one of easy application: Northamptonshire County Council v Islington LBC [1999] 2 FLR 881; C v Plymouth County Council [2000] 1 FLR 875. The net result is that the differences between Counsels' competing arguments has to be resolved on the basis of quite little evidence, by drawing such inferences as seem justified.
28. On consideration of all the available material, including the police records, I conclude that the mother's attitude on 9th April 2011 amounted to a refusal to have CM back into the house. She clearly went along with the police recommendation that he should go temporarily to the Zs. She did not oppose it, or the police would have had to resort to S 46 of the Act ('taking a child into police protection') which would have been noted within any half-decent police record of what had taken place. Then on Monday, 11th April 2011, although faced with the possibility of emergency proceedings, the mother agreed to the same arrangement for CM continuing until assessments had been prepared. There is a fine line between (a) agreeing and (b) being forced into accepting the inevitable such that there was no real agreement; but the fact is that the mother was well aware that there had been a serious fracas between the two of them two days previously and that CM was now clearly voting with his feet. Further, she opposed a care order in respect of him right up until the final hearing on 21st March 2012, because she did not accept that the 'threshold' for state intervention was met. District Judge Fairwood said in his judgment of that date:<

"…the mother reluctantly, I am sure, and understandably so, agrees to CM remaining with the Zs in Sheffield, but on a voluntary basis: in other words, there being no care order".

That suggests to me that back on 11th April 2011 this mother, whilst willing to agree to CM living with the Zs, would not at that time have agreed this being by way of a placement by Bradford. That concession from her came only on 8th June 2011. So as of 11th April 2011, I am satisfied on the balance of probabilities that she agreed for the time being the continuation of the de facto arrangements whereby CM lived with the Zs. That being so, CM was not at that time being 'provided with accommodation' by Bradford. Rather, the arrangement was based on the agreement of the adults involved, the mother being the only person then with parental responsibility.

29. Notwithstanding Ms McFadyen's argument, it is difficult in such circumstances to conclude that the local authority could have come under any duty through having seen CM as 'appearing to require accommodation' for the purpose of S 20(1). He had excellent accommodation with family members, the Zs, where he wanted to be and saw his future. It is not in any event the existence of duties per se which establishes the 'provision of accommodation'. Such duties are only part of the picture and have to be seen alongside what was happening factually on the ground. In addition, if it were necessary to do so, I would accept Mr Hayes' submission that S 20(7) applies here, in that the mother was able and willing 'to arrange for' accommodation for CM (by going along with the existing arrangements for him) and did object to the local authority providing such accommodation. By S 20(7) that would abrogate any duty on Bradford otherwise arising under S 20(1). But I do not need to go that far. It suffices to say that the local authority was not the provider of the accommodation for CM during the two month period up to 8th June 2011, with the result that the S 105(6) disregard does not apply for that period; although it applies thereafter.

F. What was the area of CM's ordin ary residence durin g those tw o months , Bradford or Sheffield? Which local authority should be designated?

The basic principles as regards ordinary residence.

30. In Shah v Barnet London Borough Council [1983] 1 All ER 226, Lord Scarman said that a person's ordinary residence refers to:

"…a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration".

Further guidance determining a person's ordinary residence was given by Lord Brandon of Oakbrook in C v S (Minor: Abduction) [1990] 2 All ER 961. He described the approach as being a practical one 'not to be treated as a term of art with some special meaning, but rather according to the ordinary and natural meaning of the two words'. He referred to it as 'a question of fact to be decided by reference to all the circumstances of any particular case'. A person may cease to be habitually resident (now taking as synonymous with ordinarily resident) in country A in a single day if he lives it with a settled intention not to return, but he cannot become habitually resident in country B in a single day, because '…an appreciable period of time and a settled intention will be necessary to enable him or her to become so'.

Application of these principles.

Was CM competent in April 2011 to form the necessary settled intention as to his place of residence?

31. Normally, the ordinary / habitual residence of a child would be that of the adult with parental responsibility in respect of him or her, and / or would be determined by that person. Here the mother (as the only person with parental responsibility until the first interim care order was made) cannot be said to have agreed to CM living in Sheffield with the Zs on a settled basis, because at the material time her agreement was merely until assessments were made within the care proceedings. So, for CM to have obtained ordinary residence in Sheffield (as argued for by Mr Hayes) it could only be on the basis that he was Gillick competent to form for himself the necessary settled intention, as explained in Shah v Barnet London Borough Council [1983] 1 All ER 226 and in C v S (Minor: Abduction) [1990] 2 All ER 961 above. Mr Hayes says he was so competent; Ms McFadyen says not.
32. Again, this was never identified as an issue and there is no directly focused evidence on the point. However, there is a psychological report on CM by a Dr Stewart dated 31st October 2011 (six months after the relevant period of time) in which CM was described as '…a young person of above average cognitive skills'. His teacher described him to the Children's Guardian as '…a very bright young man who, when he applies himself, can produce good quality work'. Within a week of his moving to live with them, the Zs spoke of him to the social worker as '…a bright kid [although] not stimulated at school at the moment'. In a Core Assessment by Bradford of October 2011 there is reference to the school reporting that CM's attendance and attainment were very good, although he was said to have anger management issues. His presentation was described in that Core Assessment as '…always good, with age appropriate self care skills and the ability to socialise with his peers'. There is no doubt from the papers that all the professionals have regarded it as necessary and appropriate to take serious note of CM's wishes and feelings and it can fairly be inferred that such wishes have been a key, if not decisive, factor in planning for his future to be with the Zs. Mr Z says in a statement, "…CM was adamant from the first day that he would never return to his mother's".
33. On this evidence, I accept Mr Hayes' submission that on and after 9th April 2011 CM was competent to form his own intentions about his own future. Therefore, if his making his home in Sheffield met the preconditions of being (a) sufficiently settled and (b) of sufficient duration, then his 'ordinary residence' can and should be held to have changed from Bradford to Sheffield.

Sufficiently settled?

34. Ms McFadyen submits that CM's living in Sheffield with the Zs was not settled and was always liable to be varied by order of the court. However, whilst that was perhaps a theoretical possibility, it was not at all likely. CM has never himself wavered one instant since he left his mother's home as regards his wish not to return and has been determined to make his life with the Zs. I noted earlier that this was not at all surprising, given the distress which he must have suffered on occasions as a result of his mothers's volatile behaviour, as compared with the calm, happy and orderly environment held out to him at the Zs. None of the professionals from start to finish has considered that CM would go back or be required to go back to his mother's home, given his strong wishes and feelings to the contrary. In my judgment it was never likely to happen, unless and until he changed his own mind. Therefore, I conclude that at the material time CM's accommodation in Sheffield was sufficiently secure and settled and that he had a settled intention to make his future home there with the Zs.

Sufficient duration?

35. In the Northamptonshire case above, Lord Justice Thorpe held five months to be sufficient duration to acquire ordinary residence. I acknowledge that a duration of two months (9th April 2011 to 8th June 2011, the start of the disregard) is a great deal less. Nevertheless, the House of Lords speeches referred to above demonstrate that, all other conditions being met, the acquisition of ordinary residence can be achieved by way of a short period of residence, provided it is 'appreciable' in all the circumstances of the individual case. In my view, based on all the circumstances here, two months can and should be regarded as an appreciable period of time.
36. In the result, I accept Mr Hayes' submission that CM became ordinarily resident in Sheffield during the period between 9th April 2011 and 8th June 2011. The fact that the S 105(6) disregard then 'clicked in' does not alter that conclusion. It follows by virtue of S 31(8) that Sheffield is the appropriate local authority to designate. I uphold the decision below on different grounds, such that when in July 2012 the District Judge makes the intended final care order regarding CM, it will designate Sheffield.

G. CONTEMPORANEOUS RECORDS.

37. Judging by this case and other reported decisions to which I have been referred (not all of which are cited here) much of the difficulty in analysing the position in contested designation cases stems from the lack of clear contemporaneous records as to the basis on which the child is being moved as between local authority areas. In my view, it would be good practice when such a move to a different local authority area is contemplated, that there should be as much recorded clarity as possible as to the basis upon which 'local authority 1' is (or is not) providing the accommodation concerned in the area of 'local authority 2'. It goes without saying that such records must be genuinely and not tactically written up.