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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (A Child : Designation of Local Authority)  EWCA Civ 366 (19 April 2016)
Cite as:  1 FLR 1511,  EWCA Civ 366,  Fam Law 663
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ON APPEAL FROM The Family Court sitting at Medway
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
THE SENIOR PRESIDENT OF TRIBUNALS
In the Matter of W (A Child) (Designation of Local Authority)Between:
| Medway Council
|- and -
|Kent County Council
Dorset County Council
Ms Diedre Fottrell QC and Ms Joanna Burt (instructed by Kent Legal Services) for Kent CC
Miss Janet Bazley QC and Mr Corey Mills (instructed by Dorset Legal & Democratic Services) for Dorset CC
Hearing date: 3 February 2016
Crown Copyright ©
Lord Justice Ryder:
The legal framework
"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."
"(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."
"(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,
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.
". 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.
 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  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."
Lord Justice Lewison: