LA (A Child), Re

Where a looked-after child is placed overseas under continuing local-authority responsibility, the court may permit removal while preserving the child’s habitual residence in England. The court should focus on the substance of the placement, including the local authority’s continuing responsibility, the temporary and time-limited nature of the arrangement, undertakings to return, and the absence of any settled intention that the child should reside permanently abroad. Section 105(6) of the Children Act 1989 may support that conclusion, but it is unnecessary to decide whether “ordinary residence” under that provision is synonymous with “habitual residence” for other jurisdictional purposes. A first-instance judge may reach a different view from another first-instance decision without declaring it wrong.

Kent County Council sought permission under section 28 of the Adoption and Children Act 2002 to remove IA, a child subject to care and placement orders, to the United States. The proposed carers were approved foster carers who had adopted IA’s elder half-sister. The placement was intended to be temporary and time-limited, pending the carers’ ability to pursue an adoption under the Hague Convention.

The central issue was whether IA could remain habitually resident in England while living with the carers in the United States, having regard to section 105(6) of the Children Act 1989, the statutory restrictions on removal for adoption, and the authorities concerning ordinary and habitual residence.

1. Permission granted. The local authority was permitted under section 28 of the Adoption and Children Act 2002 to remove IA from England and Wales for a period not exceeding one year, subject to her return by a specified date, undertakings by the foster carers, continuing local-authority responsibility, and the court’s retained jurisdiction. There was no order for costs.
2. The court was satisfied that IA would remain habitually resident in England. The placement was intended by the local authority, the carers and the court to be temporary. The local authority would retain responsibility for IA’s needs and would continue to monitor and support the placement. The carers would not acquire parental responsibility or power to determine IA’s residence.
3. That conclusion followed from the application of section 105(6) of the Children Act 1989, which requires periods during which a child is accommodated by or on behalf of a local authority to be disregarded in determining ordinary residence for purposes of that Act, and/or from the absence of any settled intention that IA should live permanently in the United States.
4. The court considered Re G (Adoption: Ordinary Residence) [2003] 2 FLR 944, Greenwich London Borough Council v S [2007] 2 FLR 154, ECC (The Local Authority) v SM [2011] 1 FLR 234 and Ikimi v Ikimi [2001] 2 FLR 1288. It was unnecessary to decide whether ordinary residence under section 105(6) and habitual residence in other family-law contexts have the same meaning. The court was not bound by the first-instance decision in Re G, but considered it unnecessary to describe that decision as wrong or inconsistent with other authorities.
5. The restrictions in sections 84 and 85 of the Adoption and Children Act 2002 did not prevent the proposed temporary placement. Following the reasoning in ECC (The Local Authority) v SM, section 85 should be read restrictively so as not to prevent a temporary removal pending a return for Convention adoption proceedings, provided the court retains jurisdiction and imposes an appropriate time limit and return safeguards.