Y (A Child), Re

Under section 31(8) of the Children Act 1989, ordinary residence is decisive where it exists. Where a child has no ordinary residence in a local-authority area, designation under section 31(8)(b) requires a rapid factual, rather than discretionary, assessment of the circumstances that led to the order.

In a case of chronic concerns and an itinerant parent, the relevant circumstances are not necessarily those at the earliest point when the section 31 threshold could have been met. They are the immediate circumstances in which a local authority determines that care proceedings must be initiated, including any ultimate event that triggers intervention. A duty-based ordinary-residence analysis under an unrelated statutory scheme does not displace that statutory inquiry.

The child had moved with her mother between Northern Ireland and several places in England. Belfast services had substantial welfare concerns. Brighton and Hove City Council carried out a welfare visit and later obtained an emergency protection order at Belfast’s request, but it did not begin care proceedings.

After the mother moved to Wakefield, Wakefield City Council held a strategy meeting, issued care proceedings and obtained an interim care order providing for the child’s immediate removal. Deputy Circuit Judge Hunt designated Wakefield under section 31(8)(b) of the Children Act 1989. Wakefield appealed, contending that Brighton and Hove should have been designated because of its earlier involvement and the mother’s former connection with Brighton.

The central issue was which local-authority area contained the circumstances in consequence of which the interim care order was made.

1. Appeal dismissed. The judge made no error of law and was entitled on the facts to designate Wakefield as the local authority.
2. Section 31(8) establishes a sequential inquiry. If the child is ordinarily resident in a local-authority area, section 31(8)(a) is conclusive. Only if there is no such ordinary residence does the court apply section 31(8)(b): Re S (A Child) [2017] EWCA Civ 2695. The finding that this child lacked an ordinary residence at the date of the interim care order was plainly open to the judge.
3. Under section 31(8)(b), the court undertakes a rapid, factual and unsophisticated review. It does not make a discretionary choice between competing authorities. The inquiry ordinarily focuses on the primary circumstances carrying the case over the section 31 threshold, or on the ultimate or outstanding episode which triggered intervention: Northampton CC v Islington Council [1999] EWCA Civ 3031 and Re D (A Child) [2012] EWCA Civ 627.
4. Where welfare concerns may have satisfied the threshold over an extended period while the case was managed without proceedings, that formulation must be applied to the facts as a whole. The relevant time is not when proceedings could first have been issued. It is when circumstances arise such that a local authority determines that proceedings must be commenced. Here, Wakefield’s recent welfare concerns, its strategy meeting and the consequent risk that the mother would flee once proceedings were issued led to the interim care order and immediate removal. Wakefield was therefore the relevant area.
5. R (on the application of the London Borough of Greenwich) v Secretary of State for Health and the London Borough of Bexley [2006] EWHC 2576 did not assist Wakefield. It concerned a different statutory regime, ordinary residence and the preservation of a duty after a placement by the authority concerned. Brighton and Hove had not placed the mother or child in Wakefield, and its involvement had been limited and undertaken at Belfast’s request.

The court also repeated the guidance that designation disputes are administrative and should not consume resources better directed to the child’s care.

• Court of Appeal (Civil Division): Appeal dismissed; Wakefield remained the designated local authority.
• Leeds Combined Court Centre: On 17 September 2019, Deputy Circuit Judge Hunt designated Wakefield City Council under section 31(8)(b) of the Children Act 1989.
• Leeds Combined Court Centre: On 14 August 2019, HHJ Bartfield made an interim care order with a plan for the child’s immediate removal from her mother.