W (A Child : Designation of Local Authority) [2016] EWCA Civ 366

[2016] EWCA Civ 366Case No B4/2015/3280
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Family Court sitting at Medway
HHJ Scarratt
ME15C01332
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/04/2016
Before
THE CHANCELLOR OF THE HIGH COURTLORD JUSTICE LEWISONTHE SENIOR PRESIDENT OF TRIBUNALS
Between
Medway CouncilAppellantKent County CouncilRespondentsDorset County CouncilRespondentOthersRespondent
In the Matter of W (A Child) (Designation of Local Authority)
Mr Frank Feehan QC and Ms Amanda Meusz (instructed by Medway Council) for AppellantMs Diedre Fottrell QC and Ms Joanna Burt (instructed by Kent Legal Services) for Kent CCMiss Janet Bazley QC and Mr Corey Mills (instructed by Dorset Legal & Democratic Services) for Dorset CCHearing Hearing date: 3 February 2016
Judgment
[1]On 18 September 2015 His Honour Judge Scarratt made an order in the Family Court sitting at Medway in Kent that designated Medway Council [‘Medway C’] as the local authority responsible for a baby girl who is now 8 months of age.[2]The background circumstances to the care proceedings within which that order was made are not of immediate significance to the issue that brings the matter to this court and I shall accordingly focus on such facts as are relevant to the question in the appeal which is whether the judge was wrong to designate Medway C as the responsible local authority. Medway C submit that either Kent County Council [‘Kent CC’] or Dorset County Council [‘Dorset CC’] should have been designated. All three local authorities were represented before this court and each have made submissions in opposition to an order designating them as the responsible local authority.[3]The child concerned was born on 6 July 2015 in Portsmouth. I shall call her W. The mother was in Portsmouth in consequence upon a detoxification referral made for her by Dorset Community Drug and Alcohol Advisory Service. W needed intensive care treatment at birth and was discharged by the hospital in accordance with a ‘safe discharge plan’ that neither this court nor the first instance court has been able to obtain. It may be that no copy of the plan now survives. If a local authority was involved in the making of the plan, it was not one of the authorities that have appeared before this court or the family court. The existence of the plan is known about because it is referred to in the documents available to the court as being made on 13 July 2015. It is common ground among those who are aware of its existence that it provided for the subsequent placement of the mother and her baby with the maternal grandfather in Kent and at a time unspecified or unknown thereafter with the maternal great grandmother in Medway.[4]There is no dispute about the fact that upon her discharge from hospital on 23 July 2015 W went with her mother to the home of the maternal great grandmother in Medway and that the maternal grandfather was in some way involved in that arrangement and may have been the person into whose care W was discharged by the hospital. W lived from 23 July 2015 to 4 August 2015 at the maternal great grandmother’s address in Medway. Thereafter, the mother and W were provided by Kent CC with a mother and baby placement in East Sussex.[5]Prior to W’s birth, her mother had spent time living in Dorset and Kent. For example, it is said that she lived in Dorset from May 2012 until February 2015 during which time her older child (with whom this court is not concerned) was placed in December 2014 with the paternal grandfather in Dorset. In February 2015 the mother left Dorset with that older child and went to the home of the maternal grandfather in Kent and in May 2015 the older child was made the subject of a child arrangements order to live with the maternal grandfather in Kent. The mother subsequently moved backwards and forwards to the extent that when Kent CC attempted to carry out a pre-birth assessment for W, they were unable to do so because the mother could not be located.[6]The Judge found as a fact that the mother had left Dorset for Kent prior to the birth of W on 6 July 2015 but that she had regularly visited Dorset until her detoxification programme began on 29 June 2015 at the St James’ Hospital in Portsmouth.[7]Care proceedings were issued in respect of W on 23 July 2015 by Kent CC. On 9 July 2015 Kent CC had written to Dorset CC to request that Dorset CC take care proceedings. Dorset CC replied to say that they would not be bringing proceedings. Instead the ‘safe discharge plan’ agreed on 13 July 2015 apparently provided for the care of W within the extended family. It is clear from the statement in support of the application for a care order and the application itself that Kent CC were not in agreement with the placement of W with her mother in the community i.e. with any of the relatives proposed. The first interim care order was made by the family court on 31 July 2015 in favour of Kent CC. At that hearing Kent CC informed the court that W was being looked after by her mother at the maternal great grandmother’s home in Medway subject to a written agreement and that “this is not a safe or stable interim placement”.[8]The written agreement was also referred to in a letter dated 23 July 2015 from Kent CC to Portsmouth City Council [‘Portsmouth CC’] informing Portsmouth CC that W and her mother were living in Medway under a ‘working together agreement’ with Kent CC. The best evidence of the terms of that agreement is contained in a Kent CC document dated 21 July 2015. The agreement is between Kent CC, the mother, the maternal grandfather and the maternal great grandmother. It is clear in its terms that the named members of the extended family were to be responsible for the supervision of the care of W and it specifies that W was to live at the home of the maternal great grandmother in Medway until Kent CC found a ‘suitable placement’.[9]It is patent from the documents disclosed to this court and to the family court that Kent CC were opposed to the safe discharge plan even before discharge had occurred and maintained their opposition to the placement of W with her mother on the face of the application for a care order and at the hearing when the first interim care order was made. They submit that the working together agreement was a voluntary child protection agreement to abide the event of a more suitable placement that was eventually identified in East Sussex. They submit that the agreement neither provided for the placement or accommodation of W by Kent CC with her mother or other family members nor impliedly approved of the same. It was, they submit, a necessary device for the protection of W given that no other local authority had acted to protect her.[10]It is Medway C’s case that the working together agreement amounted to accommodation provided for or on behalf of Kent CC of W with her mother and/or the extended family such that the disregard in section 105(6) applies to the period of the placement that was provided either as voluntary accommodation in accordance with section 20 CA 1989 or thereafter accommodation of W as a looked after child once the interim care order was made. Whether or not W was accommodated as submitted, both Kent CC and Dorset CC submit that the background circumstances are such that it is clear that neither the mother nor W were ordinarily resident in either of their authorities either at the time of the move to Medway or when the designation order came to be made.

The legal framework

[11]In accordance with section 31(1)(a) of the Children Act 1989 [CA 1989] a care order, whether interim or final, must be made in favour of a ‘designated local authority’. Section 31(8) CA 1989 defines a designated local authority as follows:
“a) The authority within whose area the child is ordinarily resident: or b) Where the child does not ordinarily 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.”
Section 105(6) CA 1989 makes further provision for the determination of the issue of ‘ordinary residence’ for the purpose of the CA 1989. It provides for a disregard of any period in which the child 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 c) in accordance with the requirements of a youth rehabilitation order under part 1 of the Criminal Justice and Immigration Act 2008: or d) while he is being provided with accommodation by or on behalf of the local authority.” b) Where the child does not ordinarily 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.” b) in accordance with the requirements of a supervision order under this Act c) in accordance with the requirements of a youth rehabilitation order under part 1 of the Criminal Justice and Immigration Act 2008: or d) while he is being provided with accommodation by or on behalf of the local authority.”[12]The duty imposed on a local authority to provide accommodation for a child in need is set out in section 20 CA 1989:
“(1) 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 – (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (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.” (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (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.”
By section 20(7) CA 1989 a local authority is not permitted to provide accommodation for a child in need if any person with parental responsibility is willing and able to provide accommodation or to arrange for it to be provided and objects. A child in need for the purposes of section 20 is defined in section 17(10) CA 1989 as follows:
“(10) For the purposes of this Part a child shall be taken to be in need if – (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, […].” (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, […].”
[13]Once a child is received into the care of a local authority or is provided with accommodation by them, that child is a ‘looked after child’ as defined in section 22(1) CA 1989. Looked after children are subject to a regulatory scheme for their care planning, placement and case review. In England the detail of that scheme is to be found in part in primary legislation (see, for example, section 26 CA 1989) and in part in secondary legislation (see, for example, the Care Planning, Placement and Case Review (England) Regulations 2010, as amended [‘the 2010 Regulations’]. The Secretary of State has also issued guidance to local authorities under section 7 of the Local Authority Social Services Act 1970 (‘the Children Act 1989 guidance and regulations volume 2: care planning, placement and case review’, June 2015, DfE). I shall return later in this judgment to the fact that neither in this court nor in the family court was sufficient attention paid by the parties to the provisions of the regulatory scheme.[14]A local authority is under a duty to safeguard and promote the welfare of a looked after child by section 22(3)(a) CA 1989 and to provide accommodation for a child in their care by section 22A CA 1989. The ways in which that latter duty is to be exercised are described in sections 22C to 22G, inclusive. In essence, there is a priority of choices to which the local authority must have regard beginning with a parent and ending with a placement which is otherwise ‘the most appropriate’. What is appropriate is in part defined and constrained inter alia by that which is consistent with a child’s welfare, that which is reasonably practicable and that which is in accordance with regulations made for the purposes of the section.[15]Section 22D CA 1989 imposes on a local authority providing accommodation for a child an obligation to do so in consequence upon a review of the child’s case in accordance with the regulatory scheme unless the arrangements are made as a matter of urgency.[16]It is not necessary to examine any further the detailed provisions of the legislative scheme because, as I shall explain later in this judgment, the issue in this appeal depends upon an analysis of the working together agreement made between Kent CC and the family in all the circumstances that were known for the purpose of a factual determination about the ordinary residence of the child. It is, however, important to acknowledge the legal context in which that analysis should be made.[17]Section 31(1) CA 1989 provides that an application for a care order may be made by ‘any local authority’. If a care order is made, that order is to place the child ‘in the care of a designated local authority’ (section 31(1)(a) CA 1989) and the local authority designated in a care order is that provided for in section 31(8).[18]Section 31(8) provides that the court consider first the issue of the child’s ordinary residence when making a determination about designation. In the event that the court decides that the child is not ordinarily resident in any local authority the court must go on to consider where the circumstances existed which gave rise to the application for an order. Although there may have been interesting arguments in this case about the identity of the local authority for the purposes of section 31(8)(b) CA 1989, no-one submitted to the family court or to this court that notice should have been given to Portsmouth CC, let alone that an order should have been made against them. Given the decision that we made at the end of the hearing before this court, that question is no longer relevant.[19]There is no issue between the local authorities concerned about the guidance that has been given by this court as to how a decision about designation should be made. In Northampton County Council v Islington Council [1999] 2 FLR 881 at 890 Thorpe LJ held that: i) in designating particular local authorities in care orders, the courts should construe sections 31(8) and 105(6) CA 1989 to provide a simple mechanism for designation; and ii) the function of the court is to carry out a rapid and not over sophisticated review of the history in order to make a purely factual determination of the child’s place of ordinary residence, or, if there was no place of ordinary residence, of the place where the case was carried over the section 31 threshold, and to designate a local authority accordingly.[20]In order to keep the court’s task as simple as possible, Thorpe LJ concluded in Northampton at888 to 889 that the ordinary residence of a child immediately preceding the commencement of any period of disregard in section 105(6) CA 1989 should be deemed to continue uninterrupted.[21]In C (A Child) v Plymouth County Council [2000] 1 FLR 875 Thorpe LJ re-emphasised the basis of the Northampton decision which, he said, was to put an end to litigation of this kind between local authorities (see, for example at 878 and per Swinton Thomas LJ at 880). Thorpe LJ agreed with the first instance court that it was a reasonable inference of fact in the circumstances of that case that a new born baby would be unlikely to have an ordinary residence apart from her primary career and that for a child of such a tender age, the child’s ordinary residence would usually follow that of her carer. An example of the court holding that the placement of a child in an extended family can constitute the provision of accommodation by a local authority can be seen in the decision of Bodey J in: Sheffield CC v Bradford CC [2013] 1 FLR 1027.[22]Northampton has been consistently applied for 17 years, although not without some difficulty. It inevitably involves give and take by local authorities and an acknowledgement by each of them of the obligations imposed by the legislative and regulatory scheme. In Re D (A Child) [2012] EWCA Civ 627 Ward LJ said as much and went on to give the following helpful analysis:
“[19]. If one asks which local authority is to bear the burden of responsibility for implementing the care order and care plan, it seems to me that the answer is fairly obvious. For the section 31 threshold to be crossed the child must be suffering, or be likely to suffer, significant harm at the time the local authority initiated the procedure for the protection of the child concerned. Where the child is ordinarily living, or where the relevant threshold events take place, is the relevant locus which provides the best identification of a practical, temporal and physical connection between local authority and child. The burden of the eventual responsibility for implementing the care order should then fall on the local authority having that connection. The designation of the appropriate local authority under section 31(8) seeks to do just that. […] [21] Much the same idea should inform section 31(8)(a). The designated authority is to be the local authority within whose area the child is ordinarily living. The local authority in the area where the child ordinarily lives is best placed to monitor the needs of the child and to take action if the child is in need and to shoulder the financial obligations of doing so. Ordinary residence is the most appropriate connecting factor between the child, the local authority and the court. It should not be unduly difficult to resolve a question of ordinary residence if the matter is robustly approached by the court. It is easy enough to establish where the child and, because of the child’s dependency, where the mother is living. The court need not take the tooth comb to decide whether, to apply the hallowed test of Lord Scarman in Reg v Barnett LBC, ex p Shah [1983] 2 AC 343, her abode in that particular place has been adopted voluntarily and for settled purposes as part of the regular order of her life for the time being, whether of short or long duration.”
[23]A more recent review of the authorities on ordinary residence in the context of vulnerable adults is to be found in the judgment of Lord Carnwath in the Supreme Court in R (on the application of Cornwall Council) v Secretary of State for Health, R (on the application of Cornwall Council) v Somerset County Council [2015] UKSC 46. There is nothing in that analysis which casts doubt on the principles described in Northampton and in Re D.

Discussion:

[24]It is a matter of some regret that the issue of the designation of the responsible authority was not concluded as it should have been when the first interim care order was made. Judge Scarratt was right to comment adversely about that. It was simply inappropriate for the court to sever off the issue given the importance that it has for the effective management of the regulatory scheme and to enable the court’s task of designation to be undertaken simply and robustly in the manner described in the authorities. It left W in the interim care of Kent CC but in an extended family arrangement of which they disapproved.[25]Although no-one sought to example in evidence for this court or the family court the impact of the legislative and regulatory scheme for care planning, placement or case review on the circumstances that arose as respects W, there was at least a fleeting acknowledgement that it was relevant. Ms Fottrell was able to confirm that whether the extended family arrangement that arose as a consequence of the safe discharge plan was section 20 accommodation or thereafter part of a looked after child’s plan, was not a question put to the family court with the consequence that no-one asked for disclosure of the documents that ought to have existed if it was. Accordingly, all that can be said is that there was no evidence before that court or before this court that a responsible officer of Kent CC made a decision to accommodate or place W with her mother or any relative (known for this purpose as ‘a connected person’) before the decision that led to the move to East Sussex. Such limited documents as exist before this court were requested by Medway Council at the permission hearing.[26]There is no care plan, permanence plan or placement plan made under regulations 4 to 9, inclusive of the 2010 Regulations which might have been evidence of a contrary position. Likewise, there is no child protection plan, assessment, minute of a case review or decision by an agency decision maker upon which a finding of fact could have been based. There is no document that amounts to notification of a placement by Kent CC which would have been required under regulation 13 (a document that would have been served on any number of people including the parents) nor any document to regularise what would have been for Kent CC a placement out of area under regulation 11.[27]Mr Feehan’s submission that the arrangement contained in the working together agreement was an emergency foster placement (with a connected person) pending assessment under regulation 24 of the 2010 Regulations begs the very question on what basis such a conclusion can be drawn. He might also have submitted that the arrangement was a placement with a parent under regulation 19. In each case, in the absence of any other evidence, all that the family court and this court have is the wording of the working together agreement in the context of the other circumstances, which in this case are limited and include the disavowal by Kent CC of the arrangement.[28]In the absence of any any detailed submissions or evidence on the point, I have hesitated to do more than point out what is missing in this case. It is sufficient to say that none of the local authorities who appeared before this court identified a deemed regulatory effect that was determinative of the factual issue before us given the lack of evidence to which I have referred.[29]One agreed consequence of the failure to designate the authority at the beginning of the proceedings was that Judge Scarratt had to make his decision at the time of the hearing before him in mid September 2015 nearly two months after the mother and W had been discharged from hospital and more than one month after the mother and baby placement had been provided by Kent CC in East Sussex. That placement was of course a placement to which the disregard in section 105(6) CA 1989 applied so that Judge Scarratt was met with the artificial circumstance of having to decide ordinary residence at the time of the hearing before him when more than a month before that date the disregard had started to apply. Accordingly, his decision was one constrained by the facts that were relevant within a limited timescale that started with W’s birth (in the context of the mother’s history immediately before that date) and finished with the placement in East Sussex.[30]In the absence of any other material, the plain language of the working together agreement presents a formidable obstacle to the submission that W was accommodated or placed by Kent CC with the extended family in Medway. The agreement is no more than an unenforceable child protection arrangement, albeit that this court was told that failure to abide by it would have led to the removal of W. The document is not phrased as a section 20 accommodation agreement or a plan to accommodate or place W as a looked after child. I am wholly unpersuaded that this document on its own is sufficient to infer that the arrangement in Medway should be disregarded as ‘accommodation provided by or on behalf of the local authority’ in accordance with section 105(6) CA 1989. On its face, the arrangement was not.[31]If the arrangement in Medway is not to be disregarded then that is the only place that the child lived after discharge from hospital shortly after her birth and until her move to East Sussex. The history before birth is of little assistance and no-one challenges the judge’s finding that the mother had left Dorset for Kent but had continued to visit Dorset until the detoxification referral that took her temporarily to Portsmouth. The section 31 threshold arose out of historic facts not relevant to the detoxification unit in Portsmouth so that the likelihood of harm would arise, absent protection, in any place where the child ordinarily lived with her mother thereafter. The mother’s position was that she intended to continue to live in Medway where she could call on the continuing support of her extended family.[32]On any basis the effect of the judge’s finding that the mother left Dorset in February 2015 with no settled intention to return and no return in fact save for visits before the birth of W (with no return at all after the birth of W) effectively rules them out as a place where the mother could have been ordinarily resident for the purposes of section 31(8) CA 1989.[33]If W was not accommodated or placed by Kent CC with the extended family in Medway the disregard does not apply and as between Kent and Medway, W lived for the whole of the relevant period in Medway with her primary carer. At no material time did she or her mother live in Kent, whatever may have been agreed in the safe discharge plan or whatever might have been expected or intended after her mother left Dorset. The judge found as a fact that W had never lived in Kent or Dorset and that cannot seriously be contradicted.[34]I have sympathy with Medway C who are able to point to the mother’s earlier lifestyle outside their authority and the relatively short duration of her residence with W in their area. However, the matters relied upon by Kent CC are determinative in the absence of any other material[35]Given that the test for ordinary residence is one of fact and should not be made into an overly complicated exercise, I can find no basis for concluding that Judge Scarratt’s decision was perverse. It was based on the analysis I have described without the benefit of any material to suggest otherwise. It was reasoned and clear and in all the circumstances unassailable.[36]At the conclusion of the hearing, the appeal was dismissed and these are my reasons for concurring in that decision.[37]I agree.

The Chancellor:

[38]I also agree.

Cited in 3 later judgments