Northamptonshire County Council v Islington London Borough Council

Under Children Act 1989 section 31(8), designation of the local authority responsible for a care order is a simple administrative mechanism, not a welfare-based discretionary exercise. Section 31(8)(b) should be read as applying where the child does not ordinarily reside in a local-authority area.

Where that limb applies, the court must make a rapid factual identification of the primary circumstances that carried the case over the care-order threshold and designate the authority in whose area they arose. It may not choose between authorities by reference to welfare, perceived local-authority performance, or later administrative arrangements. The disregard of accommodation provided by a local authority will normally preserve the child’s immediately preceding ordinary residence, although exceptional subsequent family developments may be relevant.

N had lived with his father in Islington before Islington removed him to a children’s home in Croydon and commenced care proceedings. The proceedings were transferred and consolidated with care proceedings concerning N’s sisters in the Northampton County Court.

Judge Hall made a care order for N and designated Northampton as the responsible authority. He considered that welfare, the proposed long-term foster placement in Northampton, and administrative practicality justified that choice. Islington appealed.

The central issue was the proper construction and application of sections 31(8) and 105(6) of the Children Act 1989, including whether N retained an ordinary residence and, if not, how the authority was to be designated.

1. Appeal allowed unanimously. Thorpe LJ gave the substantive reasons. Pill LJ expressly agreed that the relevant provisions created a simple mechanism for determining administration, and Beldam LJ also agreed. Northampton was replaced by Islington as the authority designated in N’s care order.

2. Section 31(8) of the Children Act 1989 had to provide a complete mechanism for designation. Although the wording of section 31(8)(b) refers to a child who does not “reside” in a local-authority area, it should be construed as referring to a child who does not ordinarily reside there. Otherwise a child accommodated by a local authority could fall within neither limb.

3. Thorpe LJ preferred the general approach in Re BC (Minor) (Care Order: Appropriate Local Authority) [1995] 3 FCR 598. The disregard in section 105(6) will normally notionally continue the child’s ordinary residence immediately before the disregarded period. Developments affecting the family during that period may nevertheless be considered in exceptional cases. On the unusual facts, N was not ordinarily resident in either Islington or Northampton when the care order was made.

4. Under section 31(8)(b), the judicial task is factual and confined. The relevant circumstances are the primary circumstances which carried the case over the section 31 threshold, normally the principal place of the abuse, neglect, or failure of care. The provision does not confer a broad discretion to select any authority with a connection to the child. Section 1 welfare considerations, criticisms of an authority’s earlier conduct, and possible arrangements after designation were irrelevant.

5. The primary circumstances leading to N’s reception into care and the care proceedings arose in Islington. Once that finding was made, Islington had to be designated.

• Court of Appeal (Civil Division): allowed Islington’s appeal and substituted Islington as the designated authority: [2001] Fam 364.
• Northampton County Court (Judge Hall): made a care order for N and designated Northampton as the responsible local authority.