S (A Child)

A child cannot ordinarily reside in a local authority’s area merely because a parent resides there. Physical presence is required, at least unless exceptional circumstances justify dispensing with it. A newborn who has never entered the area, lived with the parent or been in that parent’s care does not acquire the parent’s ordinary residence.

Where a child has no ordinary residence, the designated local authority under section 31(8)(b) of the Children Act 1989 is the authority in whose area the primary circumstances crossing the care-order threshold arose. Designation is a factual and administrative determination, made through a rapid and straightforward review.

A newborn was taken into care immediately after birth and placed with foster carers. He had never lived with either parent or entered the area where his mother was ordinarily resident. The county court nevertheless designated the local authority for that area, reasoning that the baby’s ordinary residence followed his mother’s.

The authority appealed. The central issue was whether section 31(8) of the Children Act 1989 permitted a newborn to be ordinarily resident with a parent despite never having been physically present in that area or cared for by that parent. If the child had no ordinary residence, the parties agreed that the neighbouring city authority fell to be designated under section 31(8)(b).

1. Appeal allowed. The order designating the County Council was discharged and the City Council was designated in its place. King LJ gave the principal judgment and Gloster LJ agreed: paras [51]–[52]. The transcript’s statement at [53] that the appeal would be dismissed is inconsistent with that agreement, the preceding reasons and the order expressly proposed at [51].
2. Ordinary residence and habitual residence are closely related concepts. The authorities concerning habitual residence therefore assisted in deciding whether physical presence was required for ordinary residence. The majority reasoning in A v A and the European jurisprudence supported the conclusion that a person ordinarily cannot acquire residence in a place without having been physically present there: paras [27]–[44].
3. Physical presence was a requisite before this child could acquire ordinary residence in a specified local authority area. The court did not finally determine whether wholly exceptional circumstances could dispense with presence because no such circumstances existed. The child had never entered the County Council’s area, lived with his mother or been in her care. The care plan contemplated that they would not live together: paras [45], [48]–[50].
4. The usual factual inference that a newborn’s ordinary residence follows that of the primary carer did not govern these circumstances. It depends upon the parent actually being the child’s carer and ordinarily involves the child’s presence with that parent. The mother had never been a carer for this child, whether primary or otherwise: paras [46], [48]–[50].
5. Accommodation supplied by a local authority was disregarded under section 105(6) of the Children Act 1989. The foster placement therefore gave the child no ordinary residence in the City Council’s area: paras [12]–[13], [17], [47].
6. The child consequently had no ordinary residence for section 31(8)(a). Section 31(8)(b) therefore applied, under which designation depended upon the area where the primary circumstances crossing the section 31 threshold arose. The parties agreed that this produced designation of the City Council: paras [14]–[16], [49]–[52].

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 2695, allowed the County Council’s appeal, discharged its designation and designated the City Council.
2. County court: His Honour Judge Handley ordered on 20 January 2017 that the County Council be the designated local authority and discharged the City Council as a party. No citation is stated.