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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G, Re (Designation of Local Authority) [2024] EWCA Civ 1565 (13 December 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/1565.html Cite as: [2024] EWCA Civ 1565 |
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ON APPEAL FROM THE FAMILY COURT SITTING AT CHESTER
Recorder Shaw
LV24C50490
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE NUGEE
and
MR JUSTICE COBB
____________________
| CALDERDALE METROPOLITAN BOROUGH COUNCIL |
Appellant |
|
| - and - |
||
| CHESHIRE EAST BOROUGH COUNCIL -and- Others |
Respondents |
|
Re G ( Designation of Local Authority) |
____________________
Local
Authority
Legal Services) for Calderdale MBC
Lisa Edmunds and Isabel Hawkins (instructed by
Local
Authority
Legal Services) for Cheshire East Council
Helen Hendry (instructed by Wilkinson Woodward, Solicitors) for the mother
Janice M Wills (instructed by Alfred Newton Solicitors) for the father (written submissions)
Natalia Levine (instructed by Hibberts, Solicitors) for the Children's
Guardian
(written submissions)
Hearing date : 5 December 2024
____________________
Crown Copyright ©
The Honourable Mr Justice COBB :
Introduction
local
authority"
(emphasis by italics added), the court may make an order "placing the child with respect to whom the application is made in the care of a
designated
local
authority"
(emphasis by italics added).
designation
of the
local
authority
under a care order is to be decided. The statute provides that the court looks first at the ordinary residence of the child (section 31(8)(a) CA 1989), and will
designate
the
authority
in which the child is ordinarily resident; failing which, "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" (section 31(8)(b) CA 1989) (emphasis by italics added). Section 31(11) CA 1989 makes clear that, except where express provision to the contrary is made, a 'care order' includes an 'interim care order'.
local
authority.
G,
a baby boy who had been born prematurely earlier that same day. At a hearing on 23 August 2024, Recorder Shaw ('the Judge'), sitting in the Family Court at Chester, made an order that Calderdale MBC ('Calderdale') should be the
designated
local
authority
in respect of the interim care order concerning
G.
He reached his decision under section 31(8)(a) CA 1989; he indicated that he would have made the same decision under section 31(8)(b) CA 1989, had he been required to do so.
granting
permission, also stayed the order. The stay has had the effect that Cheshire has remained the
designated
authority
throughout the currency of the care proceedings thus far.
G's
mother and father, and by
G's
Children's
Guardian.
Given
the commonality of position of all of the Respondents, we
gave
permission to the father and Children's
Guardian
for their legal representatives not to attend the hearing of the appeal in person, in the interests of preserving public funds. We are nonetheless
grateful
to all counsel for their skilled arguments both in writing and, where relevant, orally.
Brief background facts
G
is the only child of the relationship of the mother and father. He is now five months old.
generated
considerable professional concern
given
the matters to which I have referred in §10 above. The parents did not, it seems, co-operate with early enquiries from social workers in Cheshire; they indicated that they had purchased a caravan elsewhere, and were planning to leave Cheshire to live in the caravan.
given
permanent address, but it appears that the father (and possibly occasionally the mother) was spending time in Cheshire in this period, to look after the family pets. The inference is that the Cheshire property, from which the parents faced eviction, was the 'permanent address' provided.
general
practitioner in Calderdale; in early-July 2024 she attended for an ante-natal appointment in Calderdale.
giving
up the tenancy on their home in Cheshire and were placing their belongings in storage; it was also reported that the parents were no longer at risk of eviction from the property in Cheshire, and that they were clearing the rent arrears. The mother said that she would be looking for rented accommodation in the area of Calderdale; we were told that very shortly before the hearing on 23 August 2024, the mother registered for social housing in Calderdale but did not qualify because of her tenancy in Cheshire.
"… you advised that you bought a caravan and moved away from the [Cheshire] area. You are staying on a residential pitch and intend to remain there as you feel it is helping your mental health. You confirmed that you aregiving
up the tenancy on the property in [Cheshire] and your belongings are currently in storage."
G
was born prematurely in mid-July 2024, in Manchester. As I have mentioned earlier, care proceedings were launched by Cheshire on that day, and interim care orders were made by the Family Court shortly thereafter, without material opposition. Those interim care orders have been continued to date.
G
was moved to a hospital in Calderdale, at the request of the mother, so that the parents could be nearer to him. An entry in the child's medical notes for 19 July 2024 confirmed that
G
had moved to the hospital in Calderdale as "the mother had moved into the Calderdale area". We were told at the hearing of this appeal, without contradiction, that the mother spent 12-14 hours per day, every day, at the hospital with
G
in the period from 17 July to 8 August 2024, caring for him wherever possible.
Guardian,
that she and
G
should undergo residential assessment. This assessment commenced two days later; the residential unit was located approximately half-way between Calderdale and Cheshire. Cheshire was ordered to pay for this assessment; it was noted at the hearing (though this was not formally recorded) that the judge who ordered the assessment had indicated that if Calderdale were then to be '
designated'
as the relevant
authority,
it was expected that Calderdale would pay for this assessment.
i) She has no intention of returning to Cheshire;
ii) She intends to remain in Calderdale;
iii) She has engaged with medical services in Calderdale;
iv) She had not returned to Cheshire since moving to Calderdale, confirming, "I intend on remaining outside of [Cheshire] and have no desire to return at all due to inappropriate associates and their negative impact on me."
It seems likely that by that last comment the mother was referring to those she knew through her involvement with illicit drugs.
designation.
This took place on 23 August 2024. To recap, by that time:
i)
G
had spent 5 days in hospital in Manchester immediately following his birth;
ii)
G
had spent 22 days in Calderdale, in hospital (from discharge from the hospital in Manchester up to 8 August 2024);
iii)
G
had spent the next 15 days (from 8 August 2024) in the actual care of his mother, in a residential assessment unit between Cheshire and Calderdale.
designated
authority
should be Calderdale. The proceedings have now been transferred to the Family Court in Leeds, and a case management hearing and Issues Resolution Hearing has been fixed for a date in mid-January 2025.
Judgment
authorities
referenced in this judgment are at §44 below). The Judge received oral and written submissions from the parties, and from Calderdale. The Judge delivered a short ex tempore judgment. We have an approved note of that judgment.
authorities.
Under a sub-heading 'Submissions' he outlined the arguments advanced by Calderdale in its opposition to
designation,
but no other submissions were referenced in this section. In the next section (which he sub-headed: 'Consideration') the Judge listed the factors advanced by Cheshire which pointed to the
designation
in favour of Calderdale under section 31(8) CA 1989. In this part of his judgment, it is worth noting that he identified as relevant to his decision that:
i) The parents had chosen to live in Calderdale; he commented that they had "voluntarily alighted" upon Calderdale as the place where they wished to make their home; he said that: "they have autonomy; in other words they decide where they want to live and they have the right to choose. However irresponsible or ill-advised that decision is, it has to be respected";
ii) The parents have a licence for their caravan to remain at the camp site in Calderdale until February 2025;
iii) The mother had attended an ante-natal appointment in Calderdale;
iv) The mother has registered both herself and
G
at a
general
practice surgery within Calderdale.
G
had spent in hospital and at the residential unit "do not register or count in my evaluation of the overall picture". He nonetheless concluded that the mother had established that:
"… she is ordinarily resident in the Borough of Calderdale and, to the extent that [G]
has any ordinarily (sic.) residence separate from his mother, it must follow that this is in tandem or runs alongside that of the mother …
… Whether she remains committed to Calderdale if/when Calderdale MBC doubtless comes to the same conclusion as Cheshire East about her suitability and capability as a parent, remains to be seen… On the other hand, she may find that a different chapter in her life has started and with the care and support that she has received at the residential unit … that she is capable of and will turn her life around".
G
had acquired ordinary residence in Calderdale too.
"Clearly physical harm is of no relevance, substance and alcohol use of the parents may be relevant although I note in the interim threshold the timegiven
for those matters seems to run out in about February so that should be disregarded. Then we
get
to lack of engagement moving through to lack of involvement with the
local
![]()
authority
and in particular neglect at number nine".
"… section 31(8) does not differentiate between whichlocal
![]()
authority
has more of the factors present or indeed the most important factor. No, it just says any of the circumstances arise in which a consequence of which the order is being made are satisfied and, therefore, if I am wrong - and I don't believe I am - in considering s.31(8)(a) is satisfied in
designating
Calderdale the relevant
local
![]()
authority
then, Calderdale qualifies as the
designated
![]()
local
![]()
authority
pursuant to s.31(8)(b)." (Emphasis by italics and underlining in the original).
Grounds
of Appeal and Argument
Grounds
gave
no hint of the breadth of the arguments which we have heard on this appeal. It was merely asserted that the Judge had "erred in fact and law" in
designating
Calderdale in respect of the interim care order for
G
under section 31(8)(a)/(b) CA 1989.
(i)
G's
ordinary residence and the 'disregard' provisions
G
did not acquire 'ordinary residence' in either Cheshire or Calderdale (or indeed elsewhere) in his own right under section 31(8)(a) CA 1989; throughout the period between his birth and the decision under review he had been living in accommodation (including hospitals and a residential unit) all of which were of a type to be disregarded under section 105(6) CA 1989 in determining his 'ordinary residence'.
G
was in hospital in Calderdale as establishing
G's
ordinary residence in Calderdale. She developed this point in her oral submissions.
(ii)
G's
ordinary residence of dependency derived from his mother
G
did not necessarily or automatically acquire the ordinary residence derived from his mother; the caselaw has moved on since Thorpe LJ's comments in Plymouth (see below), in particular by reference to Re W and A v A [CA] and A v A [SC].
G's
birth, even if the mother's actual residence had changed, this could not lead to a finding that she had acquired a new 'ordinary residence' with which
G
would be fixed as her dependant, because in this period
G
himself had been in accommodation (hospital and then a residential unit) which had to be disregarded under section 105(6) CA 1989 in the assessment of his ordinary residence.
G
to acquire ordinary residence in Calderdale by dependency on his mother, he would have had at some point to have physically been present there. Mr Roche argued that
G's
22-day stay in Calderdale could not qualify as physical presence in Calderdale, as it had to be disregarded under section 105(6) CA 1989.
G
had necessarily acquired the 'ordinary residence' of his mother; this was the Judge's explicit finding, and the caselaw supports this. If Calderdale were right that the caselaw had moved on since Plymouth, the result would nonetheless be the same. The disregard provisions under section 105(6) CA 1989 do not apply to the mother's acquisition of a new 'ordinary residence'; indeed, the period when
G
was in hospital in Calderdale served to reinforce the mother's integration into life in Calderdale,
given
the extent to which she had so fully engaged there with
G,
and with the hospital and medical services, in that period.
(iii) The mother's ordinary residence
G's
mother had not acquired 'ordinary residence' in Calderdale as at 23 August 2024. They pointed to a number of factors, among them:
i) The parents had, in the months prior to
G's
birth, identified more than one location in the country to which they intended to move and make their home;
ii) The parents had retained their tenancy in Cheshire as at 23 August 2024, and the threat of eviction had apparently passed; the parents' permanent address remained their rented accommodation in Cheshire; they had not been consistent in their narrative about their plans;
iii) The caravan in Calderdale had been obtained by the parents as a contingency in the event of eviction; it was pitched temporarily on a non-residential caravan site, which could only be arranged if the licensee had a permanent address elsewhere (in this case, in Cheshire); the parents had conceded that it was not suitable to care for
G
there;
iv) The mother has no historical or current links to the community in Calderdale;
v) The mother retained a
GP
in Cheshire (even though she had registered, or purported to register, for herself and
G
in Calderdale).
G's
mother had become ordinarily resident in Calderdale prior to 23 August 2024; "therefore" (as the Judge held) so had
G.
(iv) Where the circumstances arose
giving
rise to the order
G
had not acquired an 'ordinary residence' anywhere on any basis, the Judge needed to consider section 31(8)(b) CA 1989. In considering this subsection, it was argued that the Judge was wrong to rely on one relatively minor factor among the nine factors which Cheshire had alleged should establish the threshold criteria for the making of a care order (under section 31(1) CA 1989) in respect of
G;
it was said that the Judge "cherry-picked" an allegation which appeared to support
designation
to Calderdale, ignoring the long history of involvement of Cheshire with the mother and her older children. Calderdale argued that it is obvious that all of the relevant matters pleaded in the extensive interim threshold arose in Cheshire and are evidenced by the extensive chronology of their exclusive involvement with these parents.
G
in the caravan in Calderdale as a primary "circumstance" which enabled him to find proven the terms of section 31(8)(b) CA 1989 in favour of
designating
Calderdale. She argued that the lack of secure housing was the "ultimate or outstanding" episode (per Thorpe LJ: see §61 below) which had triggered
local
authority
intervention.
authorities
which they claimed supported their respective propositions. I turn to address this legal framework.
Legal framework
"(8) Thelocal
![]()
authority
![]()
designated
in a care order must be—
(a) theauthority
within whose area the child is ordinarily resident; or
(b) where the child does not reside in the area of alocal
![]()
authority,
the
authority
within whose area any circumstances arose in consequence of which the order is being made".
"(6) 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 ...;
(ba) in accordance with the requirements of a youth rehabilitation order under Chapter 1 of Part 9 of the Sentencing Code; or
(c) while he is being provided with accommodation by or on behalf of alocal
![]()
authority".
It is to be noted that section 105(6) CA 1989 applies to the determination of a child's 'ordinary residence' across the whole of the CA 1989; several duties and powers in respect of a child, located within Part II, Part III and Part IV of CA 1989 turn on a finding of the child's 'ordinary residence', but assistance in understanding or applying its terms cannot immediately be found by reference to these other contexts.
authorities,
most notably (listed in chronological order): Re P (Care Proceedings:
Designated
Authority)
[1998] 1 FLR 80 ('Re P'); Northamptonshire CC v Islington London Borough Council [1999] EWCA Civ 3031; [2001] Fam 364 ('Northamptonshire'); C (A Child) v Plymouth County Council [2000] 1 FLR 875 ('Plymouth'); London Borough of Redbridge v Newport City Council [2004] 2 FLR 226 ('Redbridge'); Re D (Care Proceedings:
Designated
Local
Authority)
[2012] EWCA Civ 627; [2013] Fam 34 ('Re D'); Re W (A Child) (
Designation
of
Local
Authority)
[2016] EWCA Civ 366; [2017] 1 FLR 1511 ('Re W'); Re S (A Child) [2017] EWCA Civ 2695 ('Re S'); Re B (A Child) (
Designated
Local
Authority)
[2020] EWCA Civ 1673 [2020] 2 FLR 745 ('Re B').
general
application in this case which arise from the
authorities:
i) The date for determining 'ordinary residence' for the purposes of '
designation'
under section 31(8) CA 1989 is the date of the hearing (Redbridge at [27]);
ii) A
designation
of an
authority
at an interim hearing is subject to possible reconsideration and variation at a later date, if an application to
designate
a different
authority
is justified on the facts (Redbridge at [42]);
iii) Section 31(8)(a) CA 1989 is to be considered and determined first. Only in the event that the court decides that the child is not ordinarily resident in any
local
authority
will the court
go
on to consider section 31(8)(b) CA 1989 (i.e., where the circumstances existed which
gave
rise to the application for an order) (Re W at [18]);
iv) The statutory provisions in section 31(8) and section 105(6) CA 1989 are to be construed in such a way as to provide a simple mechanism for
designation.
It is the function of the judge to conduct 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 (Northamptonshire at p.374); the court "need not take the tooth comb" to decide whether a parent has voluntarily and for settled purposes acquired ordinary residence (Re D at [21]);
v) 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 (Re D at [21]);
vi) Arguments between
local
authorities
as to which should be
designated
in care proceedings concerning children is wasteful of valuable resources; "[t]he budgets of the Social Services departments are already stretched enough by meeting the cost of care that they should not be further depleted by squabbles of this kind: better remember that there are swings and roundabouts and you may win one today but you will certainly lose another tomorrow" (Re D at [23]);
vii) 'Ordinary residence' and 'habitual residence' are cognate expressions, neither of which are terms of art. In Nessa v Chief Adjudicating Officer [1999] 2 FLR 1116, Lord Slynn described an "overlap" between the meaning of "ordinary" and "habitual" residence, recognising that one is sometimes defined in terms of the other. In
designation
cases the terms have been treated as 'akin' to one another (see Redbridge at [31]), 'close relatives' (Re S at [27]) or even 'synonymous' (see Re P at p.88). The determination of each is primarily a question of fact; thus, 'ordinary residence' refers to a person's abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration (Re D at [21]);
viii) Although 'ordinary residence' and 'habitual residence' have directly comparable meanings (see (vii) above), King LJ was clear in Re S (at [36]) that:
"It would be both inappropriate and unnecessary to treat an application of this type in the same way, and with the same level of detail and sophistication as is sometimes found in disputes in relation to a child's habitual residence in international cases".
given
below, it has not been necessary to decide this not uninteresting point.
G
acquired the ordinary residence of dependency from his mother is the Court of Appeal's decision in Northamptonshire; in that case, the subject child (N) was twelve years old at the time of the appeal. Of that child, Thorpe LJ said this at 375D:
"… the ordinary residence of a child of N's age is a dependent one and in that case that means dependent upon the ordinary residence of either his mother or his father, the only available carers outside the care system".
"… a newborn babe is incapable of ordinary residence apart from the mother from whose body the baby has been so recently severed. In relation to a newborn baby, the ordinary residence necessarily has to be dependent on the residence of the mother" (p.879) (emphasis by underlining added).
girl
(age at the time of the appeal). Ward LJ referred more than once to the ordinary residence of the subject child as 'dependent' upon the ordinary residence of the mother (see for example [4], [21], and [29]), and accepted that this approach applied even where the baby was in foster care (see [4] and [10]). Specifically, in his supporting judgment, Elias LJ confirmed that the ordinary residence of dependence was unaffected by the fact that a child had been removed into foster care at birth and had spent "the whole of his or her young life … subject to the disregard provision in section 105(6)" (see [38]).
"Thorpe LJ agreed [in the Plymouth case] 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" (emphasis by underlining added) (see Re W at [21]).
"… where a child of J's age [about three years old] is in the sole lawful custody of her mother, his situation with regard to habitual residence will necessarily be the same as hers" (emphasis by underlining added).
In A v A [SC], Baroness Hale at [44] described Lord Nicholls' comment (above) as a "helpful
generalisation"
of fact, which will "usually but not invariably be true". Baroness Hale discounted that Lord Nicholls' remarks had the status of a proposition of law.
G
would, at least in 'usual' circumstances, be dependent), the disregard provisions applied. He submitted that any change in the mother's circumstances, if they pointed towards her acquiring a new ordinary residence, would have to be disregarded under section 105(6) CA 1989 insofar as they applied to
G
as her dependant. This was, I believe, a point of construction not previously argued in the cases in this area. His reasoning was that
G
could not acquire an ordinary residence of any kind (including by dependence on his mother) when he was in an institution (hospital) or
local
authority
accommodation (residential unit) which statute had declared must be disregarded.
local
authority
area. This was a reprise of the argument he had run in Re S (see [29]-[31]), although in this appeal, on these facts, Mr Roche has been required to extend the reach of his argument. In Re S, there was no doubt as a matter of fact that the baby (of a few months old) had never once been physically present within the
local
authority
area which had been
designated
by the judge at first instance; whereas, by contrast in this case,
G
spent a little over three weeks in Calderdale in hospital. Mr Roche's argument before us was that
G's
stay in an institution ('hospital') in Calderdale for 22-days was to be 'disregarded' in determining his ordinary residence, therefore he could not be said to have been physically present at any time in Calderdale.
"It is clearly artificial as a matter of ordinary language to say that a child is habitually resident at birth in a country to which it has never been. As the cases recognise, residence denotes and involves a physical presence. Where the parents or parent have established a place of habitual residence in a particular country it will usually require no more than a moment's presence in that jurisdiction for a newly born child to acquire the same status. The child's integration into the family and social life of his parents already centred in that location will be completed by his physical presence there.…" (emphasis by underlining added).
authority
area of his parents, nor had he been cared for by them. Having considered A v A [CA] and A v A [SC], and relevant recent European caselaw, King LJ observed as follows (Re S at [43]/[44]):
"[43] What is clear from A v A, at both the Court of Appeal and Supreme Court level and in the European jurisprudence, is that, in order to establish habitual residence, there will be an expectation that the child will have been present in the area where it is suggested that he, or she, is habitually resident.
[44] In my judgement, the requirement of physical presence must equally apply to a determination of ordinary residence". (emphasis by underlining added).
"… presence, in my view, is a requisite before the child can acquire ordinary residence in a specified area. If I am wrong and presence is not an essential ingredient in order for ordinary residence to be established, I am nevertheless of the view that where circumstances arise where there has not only been no presence, but also that the baby in question has never lived with the parent through whom ordinary residence is asserted, that cannot be a basis upon which to make a finding that the baby's ordinary residence follows that of his or her mother's".
"The circumstances to which the Judge should have regard are the primary circumstances that carry the case over the section 31 threshold. That may be a positive act or series of acts, such as sexual or physical abuse. If there has been extensive abuse there will usually be an ultimate or an outstanding episode that triggeredlocal
![]()
authority
intervention. The judge will have no difficulty in locating that event... even in chronic cases without any acute episode it will usually be simple enough for the judge to discern the place or, if more than one, the principal place at which the failure occurred." (Emphasis by underlining added).
Conclusion
designation,
the Judge was not invited to, nor did he, make any specific findings of fact; he relied upon the written evidence and submissions. In this regard, he was faithful to the oft-repeated
guidance
offered by Thorpe LJ in Northamptonshire to undertake a rapid and not over-sophisticated review of the history (see §46(iv) above) in order to make a purely factual (not discretionary) determination of the child's place of ordinary residence.
(i)
G's
ordinary residence and the 'disregard' provisions
generally
only creates a temporary absence from home, and therefore has similar characteristics to a period away from home at a school, or time spent under a youth rehabilitation order (section 105(6)(ba) CA 1989), and/or in many cases a period in
local
authority
accommodation. However, Ms Edmunds was right to point us to the contrary view expressed by Thorpe LJ in Plymouth (see §48 above); I had also noted (see also §48) that a child's stay and/or accommodation in hospital is notably absent from section 105(6) CA 1989 whereas accommodation in a hospital is multiply referenced elsewhere in the CA 1989. As it happens, even if Ms Edmunds were right in her submission that a hospital is not an 'institution', it would not have followed that a 22-day stay in hospital in Calderdale was in any event sufficient for
G
to acquire 'ordinary residence' there independent of his mother under section 31(8)(a) CA 1989.
G
was otherwise than in accommodation which was to be 'disregarded' under section 105(6) CA 1989, and he therefore did not acquire an ordinary residence anywhere in his own right.
(ii)
G's
ordinary residence of dependency derived from his mother
generally'
or 'usually but not invariably'. I do not accept, as Mr Roche submitted, that Ryder LJ in Re W was attempting to set a new test for ordinary residence by dependency, in a more diluted form; it is clear from the opening words in the passage which I have cited above (see §51 above) that Ryder LJ was purporting to reproduce essentially what Thorpe LJ had said in Plymouth, but (even though he did not specifically reference either A v A [CA] or A v A [SC] in his judgment) with the qualifications to the test added by those courts. In this regard, I agree with King LJ when she observed in Re S (at [23]) that Ryder LJ was 'summarising' the law as it then stood, not redefining it.
G,
or any child in his situation, an ordinary residence by dependency on his mother. The court surely has to look carefully at the reality of the mother's situation in this regard, and take a view about her ordinary residence, and the child's dependency on her; section 105(6) CA 1989 does not apply to the acquisition by a parent of ordinary residence, it focuses on the child. In this regard, it seemed to me that Mr Roche's submission followed the same unsuccessful path taken by leading counsel for the Appellant in the Plymouth case (see Plymouth at p.878).
gave
birth; she had been living in Kent for four years prior to the birth. Ward LJ made clear (at [7] and again at [28]) that the court needed to look for her ordinary residence at where the mother was actually living. He referred to the "reality of the mother's position". He was clear that the court should not make a determination of her ordinary residence by reference to a construct of the law which on the facts would have led to a conclusion that the mother's home was in Surrey, where she had not lived for some years; he was satisfied that a 'literal' construction of the statute "produces absurdities when set against the purpose which section 31(8) seeks to achieve" ([18]). At [10] he said this:
"'The child' with whom the subsection is concerned, and I am adding the emphasis, is clearly the child who is the subject of the care order, the baby. As I have already indicated, her ordinary residence is fixed by her mother's ordinary residence and the vital question is whether section 105(6) requires us to apply its disregard provisions not only to the baby but also to the mother" (emphasis by italics in the original).
"… is as a matter of fact living in, and so far as we know intending to remain in, Kent".
He referenced the 'simple exercise' of identifying "where this mother is in fact ordinarily resident" (my emphasis), in preference to the "much more uncertain and complicated review" which would involve a consideration of "the mother's mother's ordinary residence". In making clear that section 105(6) CA 1989 applies to the child not his/her mother, even in a 'ordinary residence by dependency' case, he continued:
"Ordinary residence has to be determined in order todesignate
the
local
![]()
authority
in the care order being made in respect of the child who is the subject of the order. So we are to disregard any period in which "he, i.e. that child named in the care order, lives in any place while he is being provided with accommodation". The purpose of 105(6) is to stop the clock and to stop it running in respect of the child with whom the court is dealing". (Emphasis by italics in the original; emphasis by underlining added). (para.[28])
G
had never been physically present in Calderdale because the 22-day stay in hospital was to be disregarded under section 105(6) CA 1989. The statutory regime in section 31(8) and 105(6) CA 1989 provides a framework for the court to establish where the child is 'ordinarily resident', but does not require the court to close its eyes to, or otherwise adopt a fictional narrative about, where the child is actually physically present.
Given
that in the period under review,
G
had been physically present in Calderdale for a period of weeks, and had been cared for in hospital by his mother for extended periods of each day, there is no reason why the
general
rule of acquisition of ordinary residence by dependency should not apply. Even if the Judge's phraseology could have been clearer, the Judge was nonetheless right in his conclusion that
G
had acquired an ordinary residence which he derived from a dependency on his mother.
(iii) The mother's ordinary residence
authorities
(which the Judge himself referenced), she had increasingly made known to the professionals her firm wish to leave Cheshire for
good,
and her increasingly firm wish to move permanently to Calderdale. The mother's intentions translated into her actual move to Calderdale in mid-May. After her move, she took steps to integrate, and there was sufficient evidence on which the Judge could find on the papers that the mother and father had a "current intention" to make their permanent home in Calderdale. It is apparent that both the mother and Cheshire recognised that the mother's mental health well-being and her avoidance of associates of the drugs world would be served by leaving Cheshire; the Judge referenced this as a possibility that "a different chapter in her life has started… particularly if she stays off the drugs". The Judge was entitled to reflect in his judgment that "they decide where they want to live and they have the right to choose", while appropriately acknowledging the submission of Calderdale that the parents' decision-making may have been strategic, in order to avoid further engagement with the Cheshire social services department. He took into account the temporary nature of some of the connections which they had made with Calderdale, but acknowledged the parents' transfer of medical support (
GP)
to the Calderdale area.
G's
admission to hospital in Calderdale (albeit for 22-days in the relevant period) could not and did not count towards his own acquisition of ordinary residence in Calderdale
given
the provisions of section 105(6) CA 1989 (see §66 above); however, this period did serve to support and reinforce the mother's own integration into her new life in Calderdale, as submitted by Cheshire. At the time of the hearing,
G
was in the actual care of his mother; it was, in this regard, immaterial that this was not physically within the boundary of Calderdale.
G's
mother had become ordinarily resident in Calderdale as at 23 August 2024. He was entitled further to find that
G
had by then acquired the ordinary residence of his mother.
(iv) Where the circumstances arose
giving
rise to the order
G
was 'ordinarily resident' in Calderdale at the relevant time under section 31(8)(a) CA 1989, by his dependency on his mother who was by then ordinarily resident there, it is not necessary for me to consider the Judge's back-stop determination that section 31(8)(b) CA 1989 would have led him to the same result.
local
authority
intervention". I acknowledge the force of many of Mr Roche's arguments to the effect that the Judge had failed to consider the 'primary' circumstances
giving
rise to the application; however, for the reasons outlined above, they do not assist him in the ultimate resolution of this appeal.
Order on appeal
local
authorities,
and especially for the
authority
which is
designated
by the court.
Designation
brings with it multiple statutory duties, and significant financial responsibilities, for
G.
It is regrettable that the dispute over
designation
has hung unresolved over the management of the case for the last three months; both
authorities
will have expended valuable time, effort and money in its resolution. Many times since Thorpe LJ made his remarks in Plymouth (at p.878) have courts urged
local
authorities
to refrain from litigating these issues wherever possible, particularly
given
that litigation is undertaken at public expense, "unless there are truly exceptional circumstances demanding that expenditure". I was left largely unconvinced at the conclusion of the hearing of this appeal that exceptional circumstances existed here. We were nonetheless reassured to learn that the dispute has not been a distraction in the delivery of services on the
ground
for
G,
and the co-working of the case between the two
local
authorities
has been co-operative.
given
the relatively fluid state of the arrangements as at 23 August 2024, that the circumstances of
G
and his parents will have changed materially during the period while this appeal has been pending; the situation which obtained more than three months ago may be markedly different now. Although counsel made passing reference at the hearing to a number of developments on the
ground
in the period since 23 August 2024, I have not for obvious reasons taken them into account.
designation'
it should of course be remembered that this is not a 'once and for all' decision; if the circumstances clearly warrant a reconsideration, it would be open to one or other
authority
to apply to the court for a fresh determination, particularly at the final hearing.
given above, I would dismiss this appeal.
Lord Justice Nugee
Lord Justice Newey