Claderdale Metropolitan Borough Council v Cheshire East Borough Council & Ors

For designation under section 31(8) of the Children Act 1989, the court must first determine the child’s ordinary residence. Only if the child is not ordinarily resident in any local-authority area does it consider where the circumstances giving rise to the care order arose.

Ordinary residence is a factual question assessed at the hearing by a rapid review. A newborn’s residence generally follows that of the mother or primary carer, but the dependency is not absolute. Periods disregarded under section 105(6) concern the child’s own residence. They do not prevent residence being acquired through the mother or require the court to ignore physical presence.

Cheshire East Council issued care and interim care proceedings concerning G, a prematurely born baby. The Family Court sitting at Chester designated Calderdale Metropolitan Borough Council under section 31(8)(a) of the Children Act 1989, and indicated that the same result would follow under section 31(8)(b).

Calderdale appealed. The appeal concerned whether G had acquired an independent ordinary residence despite hospital and residential accommodation, whether he could derive ordinary residence from his mother, whether his mother had become ordinarily resident in Calderdale, and how the alternative statutory test should operate.

1. The appeal was dismissed. The Family Court was entitled to designate Calderdale as the local authority for the interim care order.
2. Section 31(8) of the Children Act 1989 requires the court to consider section 31(8)(a) first. Section 31(8)(b) is considered only if the child is not ordinarily resident in any local-authority area. Ordinary residence is a factual determination made at the hearing by a rapid and not over-sophisticated review of the history.
3. The periods during which G was in hospital and residential accommodation were properly disregarded under section 105(6) when determining his own ordinary residence. It was unnecessary to decide whether a hospital is an institution for that purpose. Even if it were not, the hospital stay would not by itself have established ordinary residence.
4. The court rejected the argument that the disregard provisions prevented G acquiring ordinary residence by dependency on his mother. The approach in Northamptonshire CC v Islington London Borough Council [1999] EWCA Civ 3031 and C (A Child) v Plymouth County Council [2000] 1 FLR 875 required qualification: a newborn’s ordinary residence generally, but not invariably, follows that of the mother or primary carer. Physical presence remains relevant, and the statutory disregard does not require the court to adopt a fictional account of where the child was present.
5. The mother had moved to Calderdale, formed a current intention to remain there, and taken steps towards integration, including transferring medical support. The Judge was entitled to find that she was ordinarily resident there and that G acquired the same ordinary residence by dependency.
6. It was unnecessary to determine the alternative section 31(8)(b) issue. That provision is broadly drawn, although Northamptonshire indicates that the primary threshold circumstances, including an ultimate or outstanding episode triggering intervention, are ordinarily relevant. Designation is not necessarily final and may be reconsidered if circumstances materially change.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the designation of Calderdale.
• Family Court sitting at Chester: Recorder Shaw, in case LV24C50490, designated Calderdale under section 31(8)(a) of the Children Act 1989 and indicated that section 31(8)(b) would produce the same result.