D (A Child)

When a baby’s ordinary residence depends on that of a parent who is herself a child in care, the disregard required by section 105(6) of the Children Act 1989 applies only to the child who is the subject of the proceedings. The parent’s residence is determined under ordinary common law principles.

For designation under section 31(8), the court should identify the authority having the practical, temporal and physical connection with the subject child immediately before protective accommodation was provided. Section 105(6) stops the clock for that child. It does not require an historical inquiry into the residence of earlier generations. The statutory mechanism should receive a narrow construction and permit rapid, practical designation.

A baby was born and lived with her 16-year-old mother in Kent. Surrey County Council had placed the mother, who was herself subject to a care order, with independent foster carers in Kent. After concerns about neglect, Kent County Council accommodated the baby and obtained an interim care order.

The Family Proceedings Court designated Kent. On appeal, His Honour Judge Caddick held that there was no discretion over designation but concluded that section 105(6) of the Children Act 1989 did not require the mother’s years in local-authority accommodation to be disregarded when determining the baby’s ordinary residence. He therefore also designated Kent.

Kent appealed. It argued that the mother’s ordinary residence had remained in Surrey and that the baby consequently acquired Surrey residence. The central question was whether section 105(6) applied to the mother when her residence was being determined only as a step towards identifying her baby’s residence under section 31(8).

1. By a majority, the appeal was dismissed. Ward and Elias LJJ held that Kent was the designated local authority. Stanley Burnton LJ dissented and would have designated Surrey.

2. Section 105(6) of the Children Act 1989 is confined to the child whose ordinary residence must be determined for a statutory purpose concerning that child. In care proceedings about a baby, it stops the residence clock for the baby when local-authority accommodation begins. It does not also modify the ordinary residence of a parent merely because the parent is under 18 and is herself in care.

3. A dependent baby ordinarily takes the ordinary residence of the mother. The mother’s residence in this context therefore had to be determined under the common law test. She had adopted Kent as her abode for settled purposes as part of the regular order of her life. Even if the intention of Surrey as placing authority were relevant, Surrey had a settled intention to place her in Kent.

4. Section 31(8) is intended to provide a simple and rapid mechanism for identifying the authority which will assume administrative, professional and financial responsibility for a care order. Its temporal focus is the period immediately preceding protective intervention. Its factual focus is the child’s ordinary residence or, where applicable, the area in which the circumstances crossing the care threshold arose.

5. A literal construction extending section 105(6) through successive generations could make a baby’s residence depend on the historical residence of a grandmother or great-grandmother. It would also create arbitrary results based on whether intervention occurred shortly before or after a young parent turned 18. The majority therefore adopted the narrow construction favoured in Re H (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629.

6. Stanley Burnton LJ considered that the natural statutory language covered any child whose residence was determined for any purpose of the Act. He also considered it preferable for one authority to be responsible for both the young mother and her baby. On that construction, Surrey should have been designated.

1. Court of Appeal (Civil Division): By a majority, dismissed Kent County Council’s appeal and affirmed the designation of Kent as the authority responsible for the baby: [2012] EWCA Civ 627.

2. Medway County Court: His Honour Judge Caddick allowed no discretion in designation but held that section 105(6) of the Children Act 1989 did not modify the mother’s residence for this purpose. He designated Kent.

3. North Kent Family Proceedings Court: Designated Kent, having treated exceptional circumstances as giving it a discretion.