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Derbyshire County Council v HM and Others [2011] EWHC 3389 (Fam)

Proceedings to determine which of two local authorities was the designated authority for the purposes of the Children Act 1989, section 31. Consideration as to whether the children in question were looked after children for the purposes of section 105(6).

The mother of ES was living in the London Borough of Southwark when she suffered an intra-cerebral haemorrhage and went in to a coma whilst pregnant with JM.  The mother was supported on a life support machine until JM was born by caesarean section.  The mother subsequently died.  The father indicated that he could not care for children at that time. 

Since the children and mother were living in LB of Southwark at time (although JM was born in LB of Lambeth), a referral was made to LB of Southwark who intervened in a proposed family arrangement to care for the children with family members in America.  In fact, the children were cared for by a Great Aunt who lived in Derbyshire under a written agreement with Southwark, returning to London for a 6 week period to stay (while the Great Aunt was out of the country) with Mr and Mrs O, by an arrangement made by the Great Aunt.  Southwark undertook police checks on Mr and Mrs O prior to their placement.

After slightly over a year the father sought care of the children and issued a residence application.  The application was opposed by the Great Aunt who obtained an interim residence order but who subsequently indicated that she could not care for the children. 

LB of Southwark was ordered to undertake a viability assessment of London carers and an independent social worker was appointed to report on the father.  

The issue arose as to whether LB of Southwark or Derbyshire County Council was the designated local authority for the purposes of S.31 Children Act 1989.
Moor J undertook a review of the existing authorities and a detailed analysis of the distinctions between a local authority exercising its statutory powers under S. 23(2) or facilitating making a private arrangement under S. 23(6).

Moor J determined that the children were not looked after and therefore the disregard provisions in S.105(6) did not apply.   In particular he concluded that, notwithstanding a written agreement between LB of Southwark and the Great Aunt, the arrangement was not one where the children were "looked after" children within the meaning of the Children Act 1989 on the basis of:-

a) LB of Southwark played no role in supervising the children.
b) The terms of the agreement.
c) No monies were paid by LB of Southwark to the Great Aunt (not even a "kinship allowance")
d) No case was opened when the father approached LB of Southwark seeking return of children.
e) Subsequent correspondence from LB of Southwark to the father's Solicitors, Great Aunt and  Derbyshire CC Legal Services stated that the arrangement was a private family arrangement.

Further the subsequent interim residence order in favour of the Great Aunt, to which neither local authority was a party, would have meant that even were the children "looked after" at that point in time they would have ceased to be "looked after" thereafter.

Summary by Michael George, barrister, St Philips Chambers


Neutral Citation Number: [2011] EWHC 3389 (Fam)

Case No: CD10P00144


Date: 15/12/2011

Before :

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Between :


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HM First Respondent


ES and JM
(minors acting via their Children's Guardian)
Second and Third Respondents

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Gordon Semple (instructed by Derbyshire County Council) for the Applicant
Michael George (instructed by London Borough of Southwark) for the Respondent

Hearing date: 1st December 2011
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.



This judgment is being handed down in private on 15th December 2011 It consists of 7 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

 The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr Justice Moor : 
1. This is an application by Derbyshire County Council (hereafter "Derbyshire") for me to decide which of two local authorities, Derbyshire or the London Borough of Southwark (hereafter "Southwark"), should be treated as the designated local authority in relation to the care proceedings involving ES and JM. 

2. The history of this matter can be set out relatively briefly.  The First Respondent is HM (hereafter "the father").  He is aged 47.  It seems likely that he is the father of the two children, ES and JM, although DNA tests are being undertaken to make sure.  The children's mother was OS. 

3. Although both parents were born in Nigeria, they met in the UK in 2004.  ES was born in August 2007 and is therefore four years of age.   She lived with her mother at a flat in Southwark. 

4. During 2009, the mother became pregnant again.  In August 2009, the father found the mother collapsed on the kitchen floor.  She was taken to King's College, Hospital.  She was in a critical condition and placed on a life support machine. 

5. JM was delivered in August 2009 by Caesarean section.  He is therefore now two years of age.

6. Tragically, the mother never recovered consciousness.  She died in September 2009 of an intra-cerebral haemorrhage.  It was discovered that she suffered from sickle cell disease.

7. A referral was made to Southwark from the hospital.  It was clear that the father was not coping at the time.  He accepted that he was not in a position to look after the children.  The mother's Uncle came over from the United States of America.  It was suggested that the two children should return to America with him.  It is right to say that this did not find favour with Southwark.  It was almost certainly impracticable in any event, given immigration considerations.

8. It was then suggested that the children should go to live with a Mr and Mrs A in Derbyshire.   It appears that Mrs A is the mother's great aunt.  It follows that, although she is a relative of the mother's, she is not a sufficiently close relative to be covered within the definition of "relative" in the Children Act.  It seems clear that the suggestion of the As must have come from the mother's family.  It found favour with both the father and Southwark.  It is clear, however, from various contemporaneous notes, that the As were not intending to care for the children permanently but rather until a better alternative was found.  At this stage, I suspect all parties hoped (whether realistic or not) that the mother would recover and resume care of the children.

9. An agreement was signed between Southwark and Mrs A (misspelt in the agreement) on 28th August 2009.  Mrs A agreed to abide by various terms to ensure that the children were appropriately safeguarded while they remained in her care.  The first term was that the children should remain in her sole care whilst Children's Services undertook appropriate assessments or she was instructed otherwise. The second was that she should meet the basic care needs of both children and inform Children's Services in the event that she was unable to do this.  The third was to consent to Sheffield Children's Services undertaking police checks and appropriate assessments in regard to both herself and the children.  Finally, she had to engage with all key professionals in respect to both the children's health and educational needs, such as with the Health Visitor.  Notably, however, the agreement did not make any provision as to payment. 

10. The children moved to the As on 25th August 2009.  Apart from one six week break, they remained there until 24th November 2011, a period in excess of two years.  The six week break occurred in November 2009 when Mrs A went on a visit to Nigeria.  The children stayed in London with a Mr and Mrs O in the Streatham area of London.  It is right that Southwark knew of this arrangement, arranged Police checks on the Os and approved the placement.  Nevertheless, the Os were identified by Mrs A.  Mrs O is the Pastor of the Church in London which the Mother had attended regularly.  The only other thing done by Southwark was to contact a Health Visitor in Streatham.  Again, the Os were not paid by Southwark whilst the children were with them.

11. The children returned to the As in Derbyshire in January 2010.   There is a dispute as to the exact involvement of the father thereafter but, on any view, he did not play a huge part in their lives.  In March 2010, he contacted solicitors, who wrote to Southwark.  Southwark replied on 31st March 2010 to the effect that they had completed the necessary checks with agencies and then transferred the matter to Derbyshire.  The letter stresses that the childcare arrangement was a private family arrangement between the father and the extended family members and that Southwark had not been providing ongoing services/intervention to the family.

12. On 25th October 2010, Southwark wrote to Mrs A (still spelling the name incorrectly) to the effect that the father had contacted them and Derbyshire requesting a return of the children to his care. The letter repeated Southwark's view that this was a private family arrangement and that Southwark Children's Services had closed the matter.  The letter added that Derbyshire had asked Southwark to complete an assessment of the father and that, having done so, Southwark considered there was no justifiable reason why he could not resume care of the children.  It ended by saying that if Mrs A had any concerns about this, she should speak to Derbyshire.  Indeed, it appears that Southwark obtained a rail warrant to enable the father to go to Derbyshire to collect the children.

13. The As did not allow the father to take the children.  They applied to Chesterfield County Court for a residence order on 1st December 2010.  It is right that they made it clear that they were not intending to care for the children in the long term and mentioned a placement with maternal relatives in the United States of America but there was still no timetable or specific proposals. 

14. On 28th January 2011, Wall DJ directed that Southwark should prepare a report pursuant to section 37 of the Children Act.  The order added that, if the Local Authority issued any public law applications, they must be issued in the Derby Care Centre.  A Guardian was appointed to represent the children.

15. On 23rd May 2011, Stark DJ, by consent, ordered that the children should reside with the As until further or other order.  These were private law Children Act proceedings.  Neither Southwark nor Derbyshire were parties, although Southwark was represented at the hearing.  Southwark was ordered to file a Skeleton Argument setting out why it considered it should not be the designated Local Authority if care proceedings were issued.  The matter was transferred to the High Court. 

16. The matter was listed before King J on 20th October 2011.  Both Southwark and Derbyshire were represented.  By then, it was clear that the As could not look after the children after 25th November as they were visiting Nigeria.  Southwark was ordered to undertake a viability assessment of Mr and Mrs O.  The time for them to file a report by an Independent Social Worker as to the father was extended.  Derbyshire indicated that, in the event that it considered that it was appropriate to issue care proceedings and Southwark refused to do so, Derbyshire would do so without prejudice to any argument as to which authority was the appropriate designated authority.

17. The report of the Independent Social Worker, Jennifer Hall was filed on 15th November and was not supportive of the father.   Derbyshire therefore issued care proceedings on 21st November 2011. 

18. The matter came back before King J on 22nd November 2011.  An interim care order was made in relation to both children to Derbyshire.  It proved impossible to find foster carers to enable ES to remain at her school and the children were moved to short term foster carers in Croydon. 

19. Before turning to the law, I should mention that the father does not live any longer in Southwark. He has moved in with his girlfriend in her accommodation in Erith, Kent.

20. I heard the application to determine whether Derbyshire or Southwark should be designated as the appropriate authority on 1st December.  I will be hearing the CMC on 15th December.

21. There is no dispute as to the law which I must apply.   Pursuant to section 31(1) of the Children Act 1989, a care order (or an interim care order) must be made in favour of a "designated local authority".   Section 31(8) deals with the principles to be applied.  The designated authority must be (a) the authority within whose area the child is ordinarily resident; or (b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made. 

22. Following the decision of the Court of Appeal in Northamptonshire CC v Islington LBC [1999] 3 FCR 385, the test under s31(8) is a two stage test.  I must first seek to identify if the children are ordinarily resident in any local authority area and, if so, designate that authority.  If, and only if, I am satisfied that the children are not resident in any local authority area, I must then consider the s31(8)(b) test. 

23. At first sight, it may be thought odd that there is any issue that JM, who is over two years of age and has never lived in Southwark, and ES, who has not lived there for over two years, could even be said to be ordinarily resident in Southwark.  The reason is to be found in s105(6) of the Children Act which provides that, in determining ordinary residence, I must disregard any period in which the child lives in any place "(c) while he is being provided with accommodation by or on behalf of a local authority".  The issue is therefore whether or not the placement with the As involved the provision of accommodation by or on behalf of Southwark. 

24. To decide this issue, it is necessary to turn to sections 20 and 23 of the Children Act.  Section 20(1) imposes an obligation on a local authority to provide accommodation to any child who appears to require accommodation as a result of "(a) there being no person who has parental responsibility for him …(c) the person who has been caring for him being prevented (whether or not permanently and for whatever reason) from providing him with suitable accommodation or care".  There is no dispute that this section was engaged as neither parent was in a position to provide the children with suitable accommodation or care.

25. The local authority had to discharge its duties in accordance with section 23.  At the time, there were two sections that were relevant.  Section 23(2) provided that "a local authority shall provide accommodation and maintenance for any child they are looking after by (a) placing him…with (i) a family; (ii) a relative of his; or (iii) any suitable person, on such terms as to payment and otherwise as the authority may determine…(f) making such other arrangements as (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State."  Section 23(6), however, provided that "Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with – …. (b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare."  

26. It is accepted that the court is bound by a line of authorities culminating in the Court of Appeal decision in R (SA; a child by SH as litigation friend) v Kent County Council [2011] EWCA Civ 1303; The Times 6th November 2011.  Section 23(2) and section 23(6) are two distinct routes by which the local authority can discharge its duties under section 20(1).  The court must determine whether the local authority was exercising its statutory powers under s23(2) or facilitating the making of private arrangements under s23(6).  If Southwark was acting pursuant to s23(6), the children ceased to be looked after children and s105(6) ceased to apply.  If, however, the placement was under s23(2), the children remained looked after by Southwark.

27. The decision is a factual question on the basis of the evidence before the court.  Smith LJ did, however, say in D v LB of Southwark [2007] EWCA Civ 182 at Paragraph 52 that, where a local authority seeks to divest itself of its obligation and requires someone else to do so (by placement under s23(6) rather than under s23(2)), it would need to be very clear that this was its intention. 

28. Having considered the evidence in this case carefully, I am quite satisfied that Southwark was indeed facilitating the making of private arrangements under s23(6) rather than looking after the children pursuant to s23(2).  I have come to this conclusion for numerous reasons but it is clear to me that any reasonable bystander would undoubtedly have concluded that Southwark was shedding its legal responsibility (Paragraph 59 of D v Southwark).  Other than the original agreement, there is no respect in which it could be said that these were looked after children.  In particular:-

(a) After the placement with the As, Southwark played no role whatsoever in supervising the As or "looking after" the children;

(b) In a handwritten letter, the father authorised Mr and Mrs A to "take decisions relating to (the children's) urgent medical and health needs and give consent to medical procedures…";

(c) Southwark paid absolutely nothing to Mr and Mrs A (not even a "kinship allowance");

(d) When the father approached Southwark on 1st March 2010 and 4th June 2010, Southwark said the children were not an open case;

(e) Southwark's letter to the father's solicitor on 31st March 2010, stated that this was a private family arrangement and Southwark had not been providing on-going services/intervention to the family;

(f)  On 26th August 2010, Southwark wrote to Derbyshire legal services stating that "this was a family placement between the respective maternal and paternal families"; although Southwark agreed to undertake an assessment of the father because he was living in its area, the letter is clear that as the children were in Derbyshire's area, Derbyshire had a duty towards them as children in need;

(g) In Southwark's letter to the As dated 25th October 2010, Southwark repeats that this was a family arrangement and a private family matter.

29. I accept that the original agreement dated 28th August 2009 imposed obligations on the As but I consider that the factors that I outline in Paragraph 28 above make clear the real nature of the arrangement.  The terms of the agreement reached constituted the arrangements to enable the children to be cared for by the As pursuant to s23(6) rather than for the children to be placed by the Local Authority in accordance with s23(2). 

30. I recognise entirely that some of the evidence relied on by Southwark in support of this conclusion is self-serving.  It could be said that it is not particularly attractive for Southwark to rely on matters such as its own failure to pay allowances.  Nevertheless, this is the factual background and I find it impossible to say that s105(6) is engaged.

31. In any event, if I was wrong about that, I would have found that it was impossible to say that the children were being looked after by Southwark after the court order made in the Chesterfield County Court on 23rd May.  As I have already noted, Southwark was not a party to these private law proceedings.  The court made an order that the children "shall reside with the Applicants until further or other order".  In my view, it cannot be said that they were "being provided with accommodation by or on behalf of a local authority" if the court ordered that they reside with the As.

32. I have also concluded that the children did become ordinarily resident in Derbyshire following their placement with the As.  They resided there for in excess of two years. ES went to school there.  They were registered there with doctors.  Whilst I accept that the As did not intend to keep them indefinitely, no steps were taken whatsoever for them to move elsewhere, let alone to a specific location with a specific carer at a specific time.  They were settled in Derbyshire and had ordinary residence there.  Given my findings in Paragraph 28, it is unnecessary for me to decide whether or not ordinary residence would have been acquired after 23rd May 2011 if it had not been acquired prior to that date. 

33. It follows that it is also not necessary for me to consider:-

(a) Section 31(8)(b);
(b) Whether or not JM was ever ordinarily resident in Southwark; or
(c) Whether or not the position changed once the father had requested the return of the children to him.  

34. Having concluded that these children were ordinarily resident in Derbyshire at the time that the public law care proceedings were instituted on 21st November 2011, Derbyshire are the designated local authority in relation to these proceedings.

35. I have not heard any submissions as to the costs of this application.  If necessary, I will do so at the CMC on 15th December 2011.  Before any such application is made, I would just remind the two authorities of my observations in Paragraph 30.  My preliminary view, without having heard any argument, is that these observations would be relevant to the exercise of my discretion on costs.