W (A Child : Designation of Local Authority)

When designating a local authority under Children Act 1989, the court should make a rapid, robust and purely factual determination of the child’s ordinary residence. For a dependent baby, ordinary residence will usually follow that of the primary carer.

A period is disregarded under section 105(6) only where accommodation was actually provided by or on behalf of a local authority. An unenforceable child-protection agreement, without a care, placement or accommodation decision or supporting regulatory records, does not by itself establish such provision. If a period is disregarded, the child’s immediately preceding ordinary residence is treated as continuing throughout it.

Kent County Council began care proceedings concerning a newborn child. After leaving hospital, the child lived with her mother and maternal great-grandmother in Medway under a working-together agreement made with Kent. Kent later placed mother and child in East Sussex.

The Family Court designated Medway Council as the authority responsible for the child. Medway appealed, contending that Kent or Dorset should have been designated. It argued principally that the Medway arrangement was accommodation provided by or on behalf of Kent and therefore had to be disregarded under section 105(6) of the Children Act 1989.

The central issues were whether the Medway arrangement constituted local-authority accommodation and, if not, where the child was ordinarily resident for the purposes of section 31(8).

1. Appeal dismissed. The Family Court was entitled to designate Medway Council. Its decision was reasoned, clear and not perverse.

2. Sections 31(8) and 105(6) of the Children Act 1989 provide a simple mechanism for designation. The court should conduct a rapid, robust and unsophisticated review of the history. It should make a factual determination of the child’s ordinary residence or, if there is none, the place where the circumstances crossing the section 31 threshold arose.

3. The working-together agreement did not establish that Kent had accommodated or placed the child with the extended family. It was an unenforceable child-protection arrangement. It was not expressed as a section 20 accommodation agreement or as a plan for the accommodation or placement of a looked-after child. There was also no care plan, placement plan, review decision, placement notification or other regulatory record evidencing a decision by Kent to accommodate or place the child.

4. The Medway period therefore fell outside the disregard in section 105(6). The child had lived only in Medway between discharge from hospital and the later East Sussex placement. As a dependent baby, she lived there with her primary carer, whose intention was to remain in Medway with family support.

5. Dorset was excluded because the mother had left it without a settled intention to return. Neither mother nor child lived in Kent during the material period. The brevity of their residence in Medway did not prevent ordinary residence there.

6. Designation should ordinarily be determined when the first interim care order is made. Delaying it impairs effective management of the statutory care-planning and placement scheme and may force the court to reconstruct ordinary residence after a statutory disregard has begun.

Lewison LJ and the Chancellor agreed with Ryder LJ.

• Court of Appeal (Civil Division): The appeal was dismissed. The designation of Medway Council was upheld: [2016] EWCA Civ 366.

• Family Court sitting at Medway: HHJ Scarratt designated Medway Council as the local authority responsible for the child.