H (Child), Re [2003] EWCA Civ 1629

B1/2003/1623 FAFMI[2003] EWCA Civ 1629
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE – FAMILY DIVISION
(MRS JUSTICE HOGG)
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate Tuesday 18 November 2003
Before
LORD JUSTICE THORPELORD JUSTICE JONATHAN PARKERLORD JUSTICE DYSON________________________H (Child)_______________________________________________DERMOT CASEY (instructed by Legal Services of Norfolk County Council, Norwich NR2 2DH) appeared for the appellant county council.FRANCES JUDD (instructed by Legal Services of Oxfordshire County Council, Oxford OX1 1ND) appeared for the respondent county council.JONATHAN BAKER QC & PIERS PRESSDEE (instructed by Messrs Gardner Leader of Newbury RG14 5BA) appeared for the respondent guardian.DORIAN DAY (instructed by Messrs Faulkners of Oxford OX1 1PD) appeared for the respondent mother.Hearing date: Wednesday 15 October 2003
Between
Respondent motherRespondent
JUDGMENT

THORPE LJ:

[1]This appeal raises a short point on the construction of section 105(6) of the Children Act 1989. It arises from a judgment of Hogg J given on 4 July 2003. The judgment explains her preference for a care order to protect the placement of a little boy S, born on 14 October 1997, with his grandparents. The alternative mechanism considered was a residence order to the grandparents with a supervision order to the local authority. There were two county councils represented on 4 July, Oxfordshire and Norfolk. Norfolk accepted that if the judge decided on a supervision order they should be the designated local authority. However they submitted that if the judge were to make a care order Oxford should be the designated county council.[2]In making that submission Norfolk County Council relied upon the terms of section 105(6) and the decisions of this court in Northamptonshire County Council v Islington London Borough Council [2001] Fam 364 and C (Child) v Plymouth County Council [2000] 1 FLR 875. The judge concluded that the considerations in favour of designating Norfolk were so compelling as to permit her to deviate from the approach required by the two cases cited above. She refused Norfolk’s application for permission to appeal but permission was subsequently granted on paper by Ward LJ. The three parties who have responded to the appeal have all filed respondents notices seeking to uphold the judge’s conclusion on an alternative foundation. Before turning to the rival submissions on the law I will briefly record the essential facts and then set out the relevant statutory material.

Facts

[3]S, his parents and his maternal grandfather and step-grandmother all have strong links with Norfolk. S was briefly in the care of Norfolk County Council after his birth. It was only at the age of two and half that he left the county when his mother, a single parent, moved to Oxford. There on 15 March 2001 he was removed under police protection and placed in foster care. He was the victim of non-accidental injuries for which his mother and her partner were responsible. Oxford County Council were responsible for his protection and they obtained an interim care order on 28 March 2001. The case came before Wall J in the Family Division in June and July 2001. At the later hearing he decided that S should return to Norfolk to be cared for by his grandfather and step-grandmother. The move was unsuccessfully opposed by Oxfordshire County Council. His return was achieved on 16 August. He has remained there ever since. The ensuing litigation was protracted. Johnson J investigated the circumstances leading to S’s removal from his mother’s care over the course of five days. His findings were successfully appealed and the ensuing retrial lasted 17 days before Hogg J. Her disposal hearing, culminating in the judgment of 4 July 2003, lasted five days. Throughout this period of almost two years S has remained in Norfolk with his grandparents. By the order of 4 July his father, living in the same vicinity, acquired parental responsibility. His mother had by then returned to that vicinity. However the judgment of 4 July strictly confined her future relationship both with S and with her parents. Her contact to S was reduced to three supervised visits a year of one-hour duration. She was restrained throughout S’s minority from entering or approaching her parents’ home and from contacting S, save during the three contact visits and from contacting his school. S’s grandparents sought a care order on the basis that they would be, and would feel to be, more supported in their endeavour to do their best for S. Although Norfolk had initially submitted that a supervision order would be more suitable, by the conclusion of the case they too supported the making of a care order.

The Statutory Material

[4]Section 31(8) of the Children Act 1989 provides:
“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.”
[5]This is a straightforward provision but it must be applied in conjunction with the provisions of section 105(6), which has conveniently been labelled the disregard provision. Its application has given rise to considerable difficulty. The sub-section provides:
“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 7(7)(b) of the Children and Young Persons Act 1969; or (c) while he is being provided with accommodation by or on behalf of a local authority.”

The Rival Submissions

[6]Mr Dermot Casey on behalf of Norfolk submits that the decision of this court in Northamptonshire County Council v Islington London Borough Council lays down a clear and firm rule to be extracted from the paragraphs of my judgment between 372G and 373C. The subsections in combination were there held to provide a simple test to enable the court to make a rapid designation of the authority responsible for the care order. Simplicity was to be achieved by deeming the ordinary residence immediately preceding the commencement of the period of disregard to continue uninterrupted. I concluded:
“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.”
[7]Mr Casey then relied on the later case of C (Child) v Plymouth County Council I reaffirmed that the simple test ‘should be sufficient to determine all but the most exceptional cases’. I did not mean by that passage ‘… that it gave the judge some sort of discretionary exit from the plain application of the mechanism contained in sections 31 and 105’. In his concurring judgment Swinton Thomas LJ said:
“It is clear, as my lord has said in his judgment, that what was intended in that passage was to leave the door open for circumstances or facts which might arise, which could properly, in the context of that decision, be regarded as exceptional. As at present, I do not find it possible myself to envisage facts which would be exceptional, although I entirely accept that it could be that such facts could arise and that it would be right for the court to leave that possibility open.”
[8]So Mr Casey submits that, given the stringent restraint on deviation from the simple test by resort to the exceptional, it was simply not open to Hogg J to conclude that considerations that all related to S’s future welfare justified a departure from the simple test which required the designation of Oxford. For Oxfordshire was clearly the county of S’s ordinary residence immediately prior to his return to Norfolk and had been so immediately prior to his accommodation by Oxford in March 2001. The effect of the disregard provision in section 105(6)(c) compelled a finding that S was ordinarily resident in Oxfordshire for the purposes of section 31(8)(a).[9]Mr Jonathan Baker QC, by agreement amongst the respondents, presented the contrary legal argument. First he contended that the judge had rightly held that the developments affecting S’s family during the lengthy course of the care proceedings were sufficiently exceptional to entitle Hogg J to conclude that he had re-acquired ordinary residence in Norfolk prior to July 2003. The eight circumstances upon which he relied were as follows: i) S has been living with his grandparents for over two years. ii) He will remain with them for the foreseeable future. iii) His father lives close by. iv) His mother has now returned to Norfolk. v) Other members of his extended family live in Norfolk. vi) All live in close proximity in the same town. vii) He and his mother only lived in Oxford for a comparatively short time. Each can be said to have come home to Norfolk. viii) Neither he nor any other member of his family has any continuing connection with Oxford.[10]Thus Mr Baker submits that S has connections only with Norfolk. Any outcome that would perpetuate his expired and unhappy connection with Oxfordshire would be illogical.[11]Mr Baker’s alternative submission has its origin in his respondent’s notice. He submits that the disregard provision does not apply since S was not being ‘provided with accommodation by or on behalf of a local authority’ within the meaning of section 105(6)(c) when he came to live with his grandparents in August 2001. He submits that so much is clear from section 23(6) of the Children Act 1989 as explained by Wall J in the case of Re C (Care[12]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.[13]I am in no doubt that Mr Casey succeeds on his primary submission that none of the considerations identified by Hogg J is sufficient to classify this as an exceptional case justifying a departure from the simple test identified in the earlier decisions of this court. The judge’s reasoning is essentially contained in the following two paragraphs:
“But can I say it is now ‘an exceptional case’? This is a case where a little boy has been very badly damaged at the hands of and in the care of his mother. He needs careful psychotherapy. The grandparents need help with that. They want an on-hand social worker nearby, somebody they can talk to and refer to who can react urgently if need be. That may well be available whether the order was with Oxford or with Norfolk because the authorities may come to an arrangement, but the decision-making process could be more difficult or delayed if Oxford had the order. The mother is back in this small county town. She presents some risks. I was concerned about her behaviour earlier this year coming to the house. The local authority had to write to her having heard about those visits and she has adhered to their request not to attend. In the circumstances of this case and the difficulty over contact, particularly with the mother, I have come to a very clear view that Norfolk should be in control because this is where the family is, that the family is going to be in close touch with social workers. I think this is a rare case. It should be a Norfolk case. It is an exception. It is not just common sense, it is more than that. This family is going to need Norfolk in control because that is where they are.”
[14]In my judgment to support the judge on that ground would be to negate the intention and effect of the prior decisions of this court cited above.[15]However I am satisfied that the judge’s conclusion can be supported on the grounds advanced in the respondent’s notices. 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 County Council once Wall J ordered his return from foster care to the family in Norfolk. The decision of Wall J in Re C 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 section 23(1)(a) of the Children Act 1989 and accordingly section 105(6)(c) did not apply. Wall J reasoned this conclusion carefully and extensively between 548E and 550H. In my judgment the conclusion which he reached was correct for the reasons which he gave. However there is of course a distinction to be drawn. Wall J considered a local authority placement with a mother whose classification for the purposes of section 23 is established by subsections (3) and (4) as follows:
“(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). (4) A person falls within this subsection 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.” (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.”
[16]However section 23 (6) provides:
“Subject to any regulations made by the Secretary of State for the purposes of this subsection, 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.” (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.”
[17]The effect of section 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 section 105(6) and begins to live with the relative or family arranged by the local authority pursuant to their duty under section 23(6).[18]For those reasons I would uphold the order made by Hogg J and dismiss the appeal. The decision reached by Hogg J was, of course, a characteristically sensible decision. Mr Baker accepts that he bears some responsibility for the construction of the fallible foundation. The point arose at the end of the last day of a long week. Mr Baker urged the judge to find exceptional circumstances. He did not advance, although he may have passingly referred to, the alternative foundation that emerged fully-fledged in his skeleton argument of 28 August 2003. He accepts that if he had had the time to prepare and present a fuller argument in the court below Hogg J would probably have accepted his submission that the disregard provision ceased to apply after 16 August 2001.

JONATHAN PARKER LJ:

[19]I agree.

DYSON LJ:

[20]I also agree.

Order

Appropriate Local Authority) [1997] 1 FLR 544.

Cited in 10 later judgments

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