H (Child), Re

When designating the local authority under a care order, periods during which a child is provided with local authority accommodation are ordinarily disregarded. The child’s ordinary residence immediately before that period supplies a simple designation test. Welfare considerations or administrative convenience do not create a discretionary exception.

The disregard provision should, however, receive a narrow construction. A looked-after child who is enabled under section 23(6) of the Children Act 1989 to live with a relative or connected family ceases to be provided with accommodation for this purpose. The child may therefore acquire ordinary residence in the area of that family placement.

A child was removed from his mother in Oxfordshire and placed in foster care under an interim care order. In August 2001 he moved to Norfolk to live with his maternal grandfather and step-grandmother. After nearly two years there, Hogg J made a care order and designated Norfolk County Council as the responsible authority.

Norfolk appealed. It argued that sections 31(8) and 105(6)(c) of the Children Act 1989 required Oxfordshire to be designated because the child had been ordinarily resident there immediately before entering local authority accommodation. The respondents contended that the placement with relatives either constituted an exceptional case or was outside the statutory concept of being provided with accommodation.

The central issue was whether the child’s residence with his grandparents had to be disregarded when determining his ordinary residence.

1. The appeal was dismissed unanimously. Thorpe LJ delivered the leading judgment. Jonathan Parker LJ and Dyson LJ agreed. Hogg J’s designation of Norfolk County Council was upheld, although on a different legal foundation from that adopted below.

2. The combination of sections 31(8) and 105(6) of the Children Act 1989 ordinarily supplies a simple test. Where section 105(6) applies, the child’s ordinary residence immediately before the disregarded period is treated as continuing. The earlier decisions in Northamptonshire County Council v Islington London Borough Council [2001] Fam 364 and C (Child) v Plymouth County Council [2000] 1 FLR 875 were followed. Their references to exceptional cases do not give the court a discretionary escape from the statutory mechanism.

3. The matters relied upon by Hogg J did not constitute an exceptional case. The child’s need for nearby social-work support, the family’s presence in Norfolk, the risks presented by his mother and the practical advantages of Norfolk controlling the case all concerned his future welfare. Treating those matters as exceptional would negate the intention and effect of the earlier Court of Appeal decisions.

4. Section 105(6)(c) nevertheless did not apply after the child moved from foster care to his grandparents. The provision should receive a narrow construction because of the difficulties produced by its application. Under section 23(6), a local authority must arrange, where reasonably practicable and consistent with welfare, for a looked-after child to live with a parent, relative, friend or other connected person. Once such an arrangement is achieved, the child lives with that person or family and ceases to be provided with accommodation within section 105(6).

5. Re C (Care Order: Appropriate Local Authority) [1997] 1 FLR 544 was approved. Its conclusion that a child permitted to remain at home with a mother was not being provided with accommodation also supported the corresponding treatment of a placement with grandparents under section 23(6). The child could therefore acquire ordinary residence in Norfolk, making Norfolk the proper authority for designation.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The order designating Norfolk County Council was upheld on the alternative ground that section 105(6)(c) of the Children Act 1989 ceased to apply when the child began living with his grandparents.
2. High Court of Justice, Family Division: Hogg J made a care order on 4 July 2003 and designated Norfolk County Council. She treated the circumstances as exceptional, permitting departure from the ordinary designation test. Permission to appeal was refused by Hogg J but subsequently granted on paper by Ward LJ.