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Re Y (A Child) [2019] EWCA Civ 2209

The Court of Appeal dismissed an appeal against an order that Wakefield should be the designated authority in respect of care proceedings regarding a child who was found to have no ordinary residence. Lady Justice King, giving the judgment of the court, reminded local authorities that designation disputes consume time and scarce financial resources, which are better spent on the children at the centre of such arguments.

Y, a mother's third child, was born in the Republic of Ireland in May 2018, the mother having moved there from Bolton to avoid local authority action, after Bolton assessed her and decided to seek removal of the baby at birth. Her first child had been made the subject of care and placement orders to Brighton and Hove City Council (BHCC) in 2013 while her second child had in 2016 been placed with paternal grandparents on the application of London Borough of Redbridge.

Y was removed to foster care following her birth but returned to mother's care in July 2018. Within days there was such concern that Y was again accommodated until a residential placement for mother and baby was identified in Northern Ireland, there being no suitable placement in RoI. Belfast took over the case in February 2019 when mother and Y moved to a supportive hostel there. M regularly left the hostel and visited London and Dublin and by June 2019 was saying she wanted to move to London.

On 11th July she left Belfast, going first to Kidderminster and arriving in Brighton on 16th July. The next day Belfast asked BHCC to conduct a welfare check. There were insufficient welfare concerns for BHCC to need to take any immediate action and the mother showed them a ticket for her return to Belfast on 24th July. She did not however use that ticket but instead went to London on 25th July and then to Wakefield, arriving on 29th July.

Meanwhile as mother had not returned to Belfast, that authority asked BHCC on 1st August to assist in locating her and securing an EPO and recovery order. Belfast drafted a care application on 2nd August, in which it was clear that they saw BHCC's role as limited to assisting them in finding the mother and pursuing her return to Belfast with Y.

BHCC duly obtained an EPO and recovery order on 5th August on the basis that Belfast would be issuing care proceedings imminently. Eventually Y's aunt disclosed to BHCC the mother's address in Wakefield. The recovery order was executed and Y placed in foster care. The Wakefield social worker spent an hour at the address before Y was removed and had no immediate concerns about Y's care.

On 6th August HHJ Jakens heard the listed application for extension of the EPO. It became clear that the mother had been in contact with Belfast several times since she left Brighton and had tried to give them her Wakefield address. BHCC, aware that there were no immediate welfare concerns, sought to withdraw the application to extend the EPO. HHJ Jakens gave that permission, while also expressing concerns about the situation and about Wakefield's failure to cooperate with BHCC. She included in the order a combination of recitals, undertakings and a SIO all designed to ensure that the mother stayed in contact with a Wakefield social worker and that monitoring was in place. The judge clearly saw no continuing role for BHCC, the key players being Belfast and Wakefield.

Wakefield undertook daily welfare checks and while there were no specific concerns on two of those days, the circumstances were sufficiently worrying on 9th and 12th August to lead Wakefield to issue care proceedings on the 13th, identifying that day as the relevant date for the threshold criteria. Initially Wakefield notified BHCC that they had issued proceedings and would ask the court to designate Belfast. When Wakefield realised that the court had no power to designate an authority outside the jurisdiction, it considered it had a duty to conserve its funds and accordingly sought an order for BHCC to be designated instead.

The ICO was duly made on 14th August by HHJ Bartfield, who authorised a plan of separation. On 17th September DCJ Hunt heard argument from Wakefield and BHCC on the question of designation. He considered that it was difficult to ascribe the crossing of threshold to any particular fact or set of facts, and that the alleged shortcomings in mother's parenting did not arise in any specific place. The determining factor, however, was the risk of further flight and avoidance of monitoring and of proceedings and that at the relevant time for threshold purposes (13th August) the identified risk of flight was from Wakefield so Wakefield was to be designated. Wakefield appealed.

Designation of local authorities
S31(8) CA1989 provides that the local authority designated in a care order 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 made.

Thorpe LJ said in Northampton CC v Islington Council [1999] EWCA Civ 3031 ("Northampton") that,

"The circumstances to which the judge should have regard are the primary circumstances that carry the case over the s31 threshold"[…]"there will usually be an ultimate or an outstanding episode that triggered local authority intervention."[…]"In my opinion the judge's function is to carry out a rapid and not over sophisticated review of the history to make a purely factual determination. It is a question of fact and not of discretion."

In Re D (a child) [2012] EWCA Civ 627 Ward LJ warned that overstretched budgets

"should not be further depleted by squabbles of this kind: better remember that there are swings and roundabouts and you may win one today but you will certainly lose another tomorrow."

The appeal
DJC Hunt found that Y had not achieved the necessary degree of social and family integration in any local authority to be ordinarily resident there, so s31(8) (b) applied. BHCC had issued a respondent's notice arguing that the judge was wrong not to find that Y was ordinarily resident in Wakefield, but did not pursue that point; Lady Justice King agreed with the judge that given the number of moves in short succession, the child was not ordinarily resident in any local authority area.

Wakefield argued that BHCC should be designated because:

i) Mother had a previous child removed by BHCC, showing a long-term connection which was resumed when she went there in July 2019;

ii) BHCC should have realised at the welfare visit on 18th July that mother could not adequately care for Y and should have taken immediate action and had they done so mother and Y would not have been able to move to Wakefield;

iii) In accordance with 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 ("Greenwich") a local authority (A) remains responsible for any costs which arise in another local authority's area (B) which arise from a person moving there as a consequence of some action of A;

iv) The flight risk crystallised on 24th July 2019 when the mother did not return to Belfast and mother was still present in Brighton on that day.

Lady Justice King made the following determinations on Wakefield's arguments:

i) The mother's previous connection to BHCC was too distant and remote; since leaving there she had another child removed in Redbridge, moved to Bolton then fled to Dublin then Belfast had provided a residential assessment and placed Y on the equivalent of the child protection register;

ii) There was no reason for BHCC to take immediate action when they conducted the welfare check on 18th July and saw the return tickets. BHCC subsequently cooperated fully with Belfast in obtaining an EPO and facilitating its implementation;

iii) Greenwich was a first instance JR case in the Administrative Court which is not binding on the Court of Appeal and in any event does not assist as the facts are not comparable with the instant case. Mother was not ordinarily resident in BHCC and its involvement had been tangential at best;

iv) On 6th August HHJ Jakens did not consider the mother to be a flight risk but by 14th August, when the ICO was made, the situation had moved on and HHJ Bartfield considered that there was such a risk in the light of the proceedings that had by then been issued.

Accordingly the "circumstances in consequence of which" the ICO was made were the issue of care proceedings coupled with history and the judge's assessment of the mother.  It was necessary to consider Thorpe LJ's observations in Northampton (supra) as a whole, including the reference to "an ultimate or outstanding episode."

Where, as here, the concerns would have been capable of satisfying the threshold criteria at any stage over a period of time, but attempts were being made to manage the concerns without care proceedings, the relevant time to determine designation was not the date on which the threshold could first have been satisfied but rather the time when a local authority decides that proceedings must now be initiated.

Having dismissed Wakefield's appeal, Lady Justice King urged all local authorities to have in mind Ward LJ's observations about swings and roundabouts; the result of Wakefield feeling obligated to find a way to avoid responsibility for funding the proceedings and Y's placement in foster care was that legal costs were incurred that would have covered the fostering costs for many months.

Summary by Gill Honeyman, barrister, Coram Chambers

Read the full judgment of Y (A Child) [2019] EWCA Civ 2209 on BAILII