D (A Child)

What a nice, tricky little case this is. Although it is about a child in care, it is not in any way a case about the welfare of the child who is the subject of the care order that has been made: it is all about who has to pay for the care that has to be provided for her. It is another of those vexed cases to decide which Local Authority has to be named as the designated Local Authority in the care order. This is supposed to involve “a simple mechanism to determine the question of administration”, per Thorpe L.J. in Northamptonshire CC v Islington LBC [2001] Fam 364, 374. We are finding it anything but simple.

Fortunately at least the facts are simple enough. L, (“the Baby”), the child with whom we are concerned, was born on 16th December 2010 at the Darenth Valley Hospital in Kent. On their discharge from hospital L and her mother, A, (“the Mother”), returned with her baby to the address in Kent where she was living. All was not well. Kent CC (“Kent”) had concerns for the child. As early as August 2010, months before she was born, Kent’s Social Services Department had been notified of the Mother’s vulnerability and of the volatility of the young man who was the father of the child she was carrying. In October the unborn child was made the subject of a Child Protection Plan following the initial case conference convened by Kent Social Services. The concerns did not disappear after the child was born. Such was the neglect of her that she was taken into police protection on 27th May 2011 and provided with accommodation by Kent with foster parents who reside in Kent. Kent duly applied for and was granted an interim care order in respect of L on 23rd June 2011. The Baby remained with her foster parents in Kent.

The care order (and by reason of section 31(11) of the Act a care order includes an interim care order) is one “placing the child with respect to whom the application is made in the care of a designated local authority”: section 31(1)(a). Section 31(8) informs us how to ascertain who the designated authority is to be:

“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 being made.”

A baby’s ordinary residence is dependent on her mother’s: as Lord Brandon of Oakbrook said in In Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 579:

“… where a child of J.’s age [about 3 years old] is in the sole lawful custody of her mother, his situation with regard to habitual residence will necessarily be the same as hers.”

Thorpe L.J. said the same in C (A Child) v Plymouth CC [2000] 1 FLR 875, 879H. So we have to determine the Mother’s ordinary residence.

One would think it would be Kent as the Mother was living there but now the dreaded section 105(6) comes into play:

“In determining the “ordinary residence” of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place—

(a)

which is a school or other institution;

(b)

in accordance with the requirements of a supervision order under this Act;

(ba) in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008; or

(c)

while he is being provided with accommodation by or on behalf of a local authority.”

At first glance stopping the clock does not seem to make any difference in this case because even if we have to disregard the period in which the Baby lived in the accommodation in Kent provided by Kent, she had nonetheless been resident in Kent with her Mother before these protective steps were taken in respect of her. One asks why then should Kent not be the designated local authority?

Here is the rub. The Mother is (or at all material times was) herself a child in care, in this case in the care of Surrey CC (“Surrey”). The unique problem that then arises in this case is whether section 105(6) also applies to the Mother. Are we precluded from looking at the reality of the Mother’s position as at May 2011 because we are required to disregard the whole of the period during which the Mother was accommodated by Surrey?

The Mother’s position is this. She was born on 5th April 1994. She was taken into care by Surrey in about September 2004 when she was ten years old and she has been provided with accommodation by Surrey ever since. If section 105(6) applies to her we must disregard where she has been living since then. In fact she seems to have remained in Surrey until about 2006, but since then, apart from a period between September 2009 and March 2010 when A resided in London, she has been living in Kent. That came about because Surrey placed her with a number of Independent Fostering Agency approved foster parents all of whom lived in Kent. Because the foster parents were provided by the Independent Fostering Agency, Kent was not involved in any way with these placements though Surrey would have notified Kent that it had placed one of its looked after children in Kent’s area. Surrey remained fully responsible for “its” child, A. Kent bore no responsibility for her. In the later stages of her pregnancy the Mother, who was only sixteen, was living in a mother and baby approved placement which was provided by Surrey. After her confinement L simply joined her Mother in that placement. Surrey continued to fund that placement for the Mother which discharged Surrey’s duty to provide accommodation that was suitable to meet her needs which now included looking after her Baby. Surrey did not treat the Baby as a child whom it was obliged to look after and despite Kent’s concerns about the child, there was for the first months of the Baby’s life no question of her being provided with accommodation by either Surrey or Kent.

How then do section 31(8) and section 105(6) apply in the circumstances of this case? We must start with section 31(8) which I set out at [3] above. For section 31(8)(a) purposes the search is for “the authority within whose area the child is ordinarily resident”.

“The child” with whom the subsection is concerned, and I am adding the emphasis, is clearly the child who is the subject of the care order, the Baby. As I have already indicated, her ordinary residence is fixed by her Mother’s ordinary residence and the vital question is whether section 105(6) requires us to apply its disregard provisions not only to the Baby but also to the Mother. In determining the Mother’s ordinary residence are we, in the language of section 105(6), “determining the “ordinary residence” of a child for any purpose of this Act”? The crucial words to which we have to give their proper meaning are “a child” and “for any purpose of this Act”.

It is clear and can brook of no argument that this Mother is still “a child” as “child” is defined by section 105(1) of the Act, namely:

“In this Act –

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen.”

Paragraph 16 of Schedule 1 deals with financial provision orders and does not apply here. So far so good.

The critical question is whether we are determining the Mother’s ordinary residence “for any purpose of the Act”. Giving the word “any” its ordinary and literal meaning, the answer is, “Yes, we are determining the Mother’s ordinary residence in order to establish the Baby’s ordinary residence in order to decide for the purpose of section 31(8) which local authority must be designated in the care order”. So section 105(6) would seem to apply to the Mother.

If we are to disregard the period after the Mother herself was accommodated by Surrey in September 2004 and concentrate on where she was ordinarily resident before that accommodation was provided for her, we then have to ask where her mother, the Baby’s grandmother, was ordinarily resident in September 2004 because A would be ordinarily resident where her mother was then ordinarily resident. It does not seem to be disputed that the grandmother was ordinarily resident in Surrey. The odd result, therefore, is that this Baby’s ordinary residence in May 2011 is determined by her grandmother’s ordinary residence in 2004. On this construction the Baby is ordinarily resident in Surrey even though she has never lived there and her Mother has not lived there since she was twelve. Nevertheless in these straightened financial times, it is no surprise that Kent would wish rely upon this literal construction of section 105(6) so as to pass the financial obligations for the care of A to Surrey.

The issue of the designation of the appropriate local authority accordingly first came before the North Kent Family Proceedings Court which considered it had a discretion and found that the exceptional circumstances of this case justified their nominating Kent CC. On appeal His Honour Judge Caddick sitting in the Medway County Court on 4th August 2011 correctly held that there was no such discretion, but that section 105(6) did not, upon its proper interpretation, apply and that the Mother’s ordinary residence, and so the child’s ordinary residence, was in Kent. Kent CC now appeal to us with the permission of Black LJ given because she felt this appeal raises an important point of construction in relation to that section.

Judge Caddick’s view was this:

“28.

… Section 31(1)(a) refers to “the child with respect to whom the application is made”. Section 31(2)(a) refers to the “child concerned” as does 31(6) and (7). In 31(8) the reference is to the “the child” and there can be no doubt that it is still referring to the child with respect to whom the application is made. Section 105(6) should be read with that, for while it speaks of “any purposes of this Act” it is specifically for the purposes of 31(8) that we are considering it on this occasion. Reading the two sections together, the reference to child in 105(6) is still the same child as in section 31(1) and (8). Again the reference to “he” in 105(6) is the same child and not some other child. If the intention of Parliament was to apply different meanings to the reference to child as one goes from section 31 to 105(6) it could easily have said so and spelt out that here in 105(6). The reference to child was to include not only the child who is the subject of the proceedings but where material a child parent of the subject child.”

The judge’s view certainly has its attraction: it produces the same result as the Family Proceedings Court, applying their common sense to all the circumstances of the case, sought to achieve. Mr Richard Clough, for Kent CC, in his admirably succinct submissions robustly challenges that conclusion. He supports the literal construction and argues that there is no reason not to suppose Parliament intended section 105(6) to mean exactly what it says and that it applies to any circumstance when the court, for any reason, is called upon to determine the ordinary residence of any child for any purpose. The rationale, he submitted, was easy to understand. Many local authorities lack facilities to provide for the particular needs of particular children and thus place such children in the areas of other local authorities where there are such facilities. If by so doing the responsibility for such children passed to the receiving local authority those which boasted children’s facilities would quickly become overburdened with children from outside their area. This seemed to be a powerful argument. It gave us cause to reflect and to seek further information from the parties as to the way in which cross-border placements were made.

The parties very helpfully agreed their response. Cross-border placements happen on a regular basis. Kent currently has children placed in 66 unrelated placements outside Kent. Local authorities use foster parents approved by the Independent Fostering Agency (the “IFA”) whether within their area or outside it. They do not need the permission of the other local authority to place one of their children within the area of that other authority but they do need to notify them of the placement. They would only seek permission of the other if they wished to place the child with foster parents approved and therefore financially supported by the other authority. The foster parents with whom A, the Mother, was placed were all IFA approved: they were not approved by either Surrey or Kent. Surrey funded the placement for A and continued to fund it up until the end of May 2011 when L was placed in Police Protection and separated from her Mother. Kent has paid for the foster carers for L while this dispute about designation was remained unresolved. If a local authority has to place a child with specialist foster parents or a residential placement catering for special needs, they are bought in by the local authority under a contractual arrangement made between the local authority and the service provider.

Having taken time to reflect, I am now satisfied that the literal construction produces absurdities when set against the purpose which section 31(8) seeks to achieve. Thorpe L.J. held in Northamptonshire CC v Islington LBC [2001] Fam 364, 372, and I agree:

“I am convinced that section 31(8) was never intended to be a gateway to extensive judicial investigation of a number of relevant facts and circumstances as a prelude to the exercise of some discretionary choice. It was surely intended to be a simple test to enable a court to make a rapid designation of the authority upon which is to fall the administrative, professional and financial responsibility for implementing the care order and care plan. Where the child has connections with more than one area ordinary residence determines on the basis that almost every child will have an ordinary residence, if not a presence in some local authority area. In the rare case where a child lacks an ordinary residence in a local authority area the court designates the area in which occurred the events that carried the application over the section 31 threshold”, with my emphasis added.

If one asks which local authority is to bear the burden of responsibility for implementing the care order and care plan, it seems to me that the answer is fairly obvious. For the section 31 threshold to be crossed the child must be suffering, or be likely to suffer, significant harm at the time the local authority initiated the procedure for the protection of the child concerned. Where the child is ordinarily living, or where the relevant threshold events take place, is the relevant locus which provides the best identification of a practical, temporal and physical connection between local authority and child. The burden of the eventual responsibility for implementing the care order should then fall on the local authority having that connection. The designation of the appropriate local authority under section 31(8) seeks to do just that.

As I see it, sections 31(8)(a) and (b) are in harmony. Take section 31(8)(b) first. When the child – and this must mean the child who is the subject of the care order – does not reside (perhaps does not ordinarily reside per Northamptonshire CC) in the area of a local authority, the authority to be designated in the order is the authority within whose area any circumstance arose in consequence of which the order is being made. The temporal focus is on the time leading up to the issue of the proceedings. The factual focus is on the primary circumstances that carry the case over the section 31 threshold. The local authority where these events happen has the responsibility to take action and should be charged with the responsibility of providing the care that follows.

Much the same idea should inform section 31(8)(a). The designated authority is to be the local authority within whose area the child is ordinarily living. The local authority in the area where the child ordinarily lives is best placed to monitor the needs of the child and to take action if the child is in need and to shoulder the financial obligations of doing so. Ordinary residence is the most appropriate connecting factor between the child, the local authority and the court. It should not be unduly difficult to resolve a question of ordinary residence if the matter is robustly approached by the court. It is easy enough to establish where the child and, because of the child’s dependency, where the mother is living. The court need not take the toothcomb to decide whether, to apply the hallowed test of Lord Scarman in Reg. v Barnett L.B.C., Ex p. Shah [1983] 2 A.C. 309, 343, her abode in that particular place has been adopted voluntarily and for settled purposes as part of the regular order of her life for the time being, whether of short or long duration.

Care proceedings can take a long time between their institution and determination and the child can move before the final order is made. Since the temporal focus of the enquiry relates back to the events immediately preceding the taking of the protective steps, that is also the time to fix the financial responsibility for implementation of the care order that is being made and subsequent time is to be disregarded. That is achieved by section 105(6) which enjoins a disregard of any period while the child, that is to say the child who is the subject of the care order, is being provided with accommodation. So the courts must look to ordinary residence before that intervention by the local authority. This disregard provision should present little problem for the court making the first interim order because little time will have elapsed between the first provision of accommodation and the making of this first order. The ordinary residence of the child is not likely to have changed in that short time (and if it the mother has moved she will not easily establish that she had adopted her new abode for a settled purpose as part of the regular order of her life so as to pass Lord Scarman’s test in Shah). The problem may arise when the final order is made, often after many months in care and after the child in care has been moved, typically to grandparents or other members of the family who live in a different local authority from the mother.

The other aspect of the purpose to be served which I highlighted in the judgment of Thorpe L.J. at [18] above is that the sections must provide a simple mechanism to determine a question of administration. The enquiry outlined above is simple enough. The budgets of the Social Services departments are already stretched enough by meeting the cost of care that they 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.

It is also, in my judgment, material to bear in mind that the cost with which we are concerned is the cost of implementing the care order being made in respect of the Baby, not the cost of the Mother’s care. Surrey remains responsible for the Mother so long as her care order lasts and it is Surrey which pays and will continue to pay the fostering allowances to her foster parents. The making of a care order in respect of the Baby does not release Surrey of that responsibility. No suggestion has been made to us that Surrey was not obliged to pay any extra, if there was any extra, cost for the additional care in fact being provided by the Mother’s foster parents while the Baby was living with her in the foster parents’ home. The question is who should foot the bill for the foster care of the Baby once the Baby is removed from the Mother and placed in accommodation by the removing authority. This is a liability which could endure throughout the Baby’s childhood. In construing these sections, one is asking whether the legislature really intended that, although Surrey’s liability for the Mother ends when she is eighteen, Surrey would also become liable for the care of the Baby till the Baby is eighteen. To make the point more stark, assume that Surrey CC placed A with foster parents at the age of twelve months, that the foster parents moved with A across the county border to Kent when A was two years old and A’s life is thereafter lived in Kent, that when she is seventeen, A gives birth to L in Kent and an interim care order is obtained by Kent CC shortly before A attains her majority. Everything relevant to the circumstances which require L to be taken into care is connected with Kent, nothing with Surrey. Is it the intention of the legislature in those circumstances to provide through section 105(6) that Surrey foot the bill for L throughout her minority? In my judgment it is absurd to think so. To put it colloquially, surely L is Kent’s baby?

It seems to me, therefore, that the literal construction defeats the purpose and can moreover produce absurd results. Any harm this child may have suffered was suffered during her short life all of which has been lived in Kent and none of it in Surrey. Any likelihood of harm will spring from the deficiencies of her Mother’s care for her and her Mother is as a matter of fact living in, and so far as we know intending to remain in, Kent. Instead of conducting the simple exercise which these sections demand of asking where this Mother is in fact ordinarily resident, the literal construction requires the court to engage in a much more uncertain and complicated review of the Mother’s mother’s ordinary residence. If, as could easily happen, the Mother had been taken into care as a baby and then has her child just before she is eighteen, the result is that the court has to delve into seventeen years of family history where the only likely evidence, if it exists at all, is in the aged files of the Social Services Department of the local authority that began the first care proceedings. That simply cannot have been the legislature’s intention. I do not wish to heighten the absurdity by postulating – and experience tells me it is not a far-fetched possibility - such a serially dysfunctional family that grandmother too had been in care and gave birth to her child when she was herself still a child. In that case the baby’s ordinary residence is determined by her great-grandmother’s ordinary residence. That is absurd but it is the consequence of a purely literal construction.

Furthermore if literally construed, it can produce quite arbitrary consequences. If the Baby is provided with accommodation a week before the Mother attains her majority, Surrey CC is the designated authority but if the protective steps are taken a week after ceases to be a child herself, Kent CC pick up the tab. I cannot accept that the legislature intended that designation should depend on chance in that way.

It is an elementary principle of construction that the same words in an act bear the same meaning throughout the Act. So let me examine how the literal meaning of a child’s ordinary residence applies for some of the other purposes of the Act. Section 11F concerns contact activity directions and “not being a child ordinarily resident in Wales”. Sitting as I am in this constitution, it would be most unwise of me to say anything about ordinary residence in Wales so I move on. Ordinary residence is referred to in section 14A(7) dealing with special guardianship, in section 20(2) (provision of accommodation) and section 21(3) (police protection). Section 29(7) provides that where a local authority provides accommodation under section 20(1) for a child who was (immediately before they began to look after him) ordinarily resident within the area of another local authority, they may recover from that other authority any reasonable expenses incurred by them in providing the accommodation and maintaining him. So if this Baby was simply being looked after by Kent instead of being placed in care, would Kent in whose area Mother and Baby were in fact resident, be able to recoup the cost from Surrey simply because by accident of history the Baby’s grandmother was ordinarily resident within Surrey. That is a bit odd, is it not? Section 37(5) applies where there are family proceedings, say between mother and father, and it appears to the court that it may be appropriate for a care or supervision order to be made in respect of the child, then the court may direct “the appropriate authority” to undertake an investigation of the child’s circumstances. The appropriate authority is the authority in whose area the child is ordinarily resident. Think how pointless that would be for the County Court judge in Medway to ask Surrey to report to him about possible care proceedings which would be taken by Kent in relation to the Baby. You would think the judge’s enquiries would be better directed to that Social Services Department which had direct knowledge of what was happening to the child, namely Kent, not the authority which had knowledge of the Mother. Likewise section 46(3) where a child is removed and accommodated by the police in the case of emergency: if the baby is removed a week before the mother’s eighteenth birthday then details would have to be given to Surrey (though how in an emergency the police would ever know that Surrey was the place of the child’s ordinary residence is not easy to imagine nor is it obvious why Surrey would be concerned with a baby outside their bailiwick). A week after attaining adulthood, the authority to notify would be the obvious authority where mother and baby had been living, namely Kent, and that is the authority that would be expected to take action in response to the emergency. I could go on. I think the point has been made.

So let me look again at section 105(6). Subsection (1) of section 105 begins, “In this Act …” and subsections (2), (3), (4), (5), (5)A, (5)B and 7 all begin, “References in this Act to [whatever word or phrase has to be interpreted]”. The definition is confined to the operation of the Act. Subsection (8) provides, “Any notice …required to be served under this Act …”. The purpose is again obvious: it confines and limits the interpretation of the relevant words or phrases or the application of the notice provision to the operation this particular Act. Some limitation is also necessary for operation of section 105(6) but in this instance that limitation is achieved by the words “for any purpose of this Act …”. That means that whenever the determination of the ordinary residence of a child is “required under this Act” - to adopt the language of subsection (8) - the period of disregard kicks in. “For any purpose of this Act” and “required under this Act” are synonymous. As I have already set out, ordinary residence is required for a number of purposes under the Act. “Any purpose” is intended to identify which of the several purposes mentioned in the Act is the relevant purpose. It must be narrowly construed in that way. Ordinary residence has to be determined in order to designate the local authority in the care order being made in respect of the child who is the subject of the order. So we are to disregard any period in which “he, i.e. that child named in the care order, lives in any place while he is being provided with accommodation.” The purpose of 105(6) is to stop the clock and to stop it running in respect of the child with whom the court is dealing. All that is required to be done is to determine where that child is, as a simple matter of fact, ordinarily resident at the time before the accommodation is provided. Section 105(6) should be confined to that and to no more.

Consequently, although for only slightly different reasons, I agree with Judge Caddick. If the ordinary residence of this Baby is dependent on the ordinary residence of her mother then I do not understand that to be any challenge to the judge’s conclusion that the Mother’s ordinary residence, as the phrase is ordinarily to be understood, was in Kent. The care order in respect of the Mother would remain in force until she was eighteen though it is interesting to note that by virtue of section 31(3) no care order may be made with respect to a child who has reached the age of seventeen. Although, therefore, the local authority retain parental responsibility over the Mother, parental responsibility, like the concept of custody which it replaced, diminishes as the child grows in maturity. As Lord Denning M.R. said in Hewer v Bryant [1970] 1 Q.B. 357, 369:

“ “ … it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice”. ”

See also Gillick v W. Norfolk and Wisbeach A.H.A. [1986] 1 A.C. 112. She was well able, therefore, voluntarily to adopt Kent as her abode, as she did, and to demonstrate that she lives there for settled purposes as part of the regular order of her life for the time being. By the time that these care proceedings were begun, she had certainly remained there long enough to pass the Scarman test in Shah. It follows that the Baby’s ordinary residence was in Kent and Kent should be the designated authority under this care order.

Consequently I would dismiss the appeal.

I am grateful to Lord Justice Ward for setting out the facts of this case. I have the misfortune to disagree with his judgment, notwithstanding that it is of a colossus of our family law.

In my judgment, the more natural reading of section 105(6) is that it applies to any child whose ordinary residence falls to be determined for a purpose of the Act. Parliament could have qualified the reference to a child who is the subject of proceedings, or otherwise, but did not do so. The mother is a child, and her ordinary residence falls to be determined for the purposes of the Act.

I accept that it is possible to interpret section 105(6) as referring only to a child who is the subject of an application for a care order. But good reason is required to depart from the natural meaning.

In these circumstances, I think it legitimate to ask what Parliament would have intended in the circumstances of the present case. I consider that it is in the best interests of the baby, and indeed of the baby’s mother, that the same local authority should be responsible for both. I think this is what Parliament must be taken to have intended and to have provided.

In the present case, the mother has now ceased to be a child. However, there are significant numbers of teenage mothers, including teenagers who become pregnant at the age of 14 or even earlier. If the mother is a child in care, the period during which both mother and child may be in care may be substantial, and it is better for both to have a single authority responsible for them.

For these reasons, I would allow the appeal.

I agree that the appeal should be dismissed and that section 105(6)(c ) should be interpreted in the way suggested by Ward LJ. This means that when determining the mother’s ordinary residence as a necessary step in fixing her child’s ordinary residence, the disregard provisions in that subsection, whereby certain periods of residence are to be disregarded when determining the ordinary residence of a child, would not apply. However, I have not found the issue entirely straightforward. I respectfully reject the premise which I think underlies much of the analysis of Ward LJ, namely that the only common sense solution is that Kent should be responsible for this young child, and that it would be absurd to make Surrey responsible. I see considerable merit in the analysis, accepted by Stanley Burnton LJ, which would place the responsibility on Surrey, although ultimately I reject it.

It is common ground that in a case of this kind, a baby takes its ordinary residence from its mother: see Re: J(A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 579 per Lord Brandon of Oakbrook. The Court of Appeal has held that this is the case even in a situation where the child is taken from the mother at birth and placed in local authority accommodation so that, with respect to the child, the whole of his or her young life is subject to the disregard provision in section 105(6)(c ): see C (A Child) v Plymouth County Council [2000] 1 FLR 875, 879. In this case the child lived with the mother for more than six months before being taken into care, and so there can be no question but that the baby’s ordinary residence is that of the mother. So one asks: what is the ordinary residence of the mother?

There can be no doubt that if the mother were not herself in care, her ordinary residence would be Kent. Kent would be, to use the language of Lord Scarman in Shah v Barnet LBC [1983] AC 309, 343G the abode “which [she] has adopted voluntarily and for settled purposes as part of the regular order of [her] life for the time being.” She was residing in Kent and as HH Judge Caddick found, it was her clear intention to remain there.

The question is whether that conclusion is affected by the fact that the mother was in care at the material time. The appellant submits that it is; the contention is that section 105(6)(c ) applies so that when determining the ordinary residence of the mother, time spent in accommodation provided by the local authority must be ignored. The mother’s ordinary residence must be found by reference to what it was at the point when proceedings were initiated to take her into care; it was crystallised at that moment. The effect of section 105(6)(c) is to stop the clock at that point and to ignore her place of residence thereafter. It is common ground that all the mother’s time residing in Kent has been as a looked-after child pursuant to a care order, and that accordingly for any purpose under the Children Act where she is the child whose interests are directly under consideration, her ordinary residence is Surrey. Hence Surrey is the designated authority and has financial and administrative responsibility for her.

The question we have to determine is whether the same principle applies when her residential status is indirectly rather than directly in issue. To use the language of section 105(6)(c ), is the court determining the ordinary residence of a child for any purpose under the Act when it is determining her residence as a mother, who also happens to be a child, in order to determine the ordinary residence of her child for a purpose under the Act?

In my judgment, and in respectful disagreement with Stanley Burnton LJ, the more natural construction of the section is that proposed by Ward LJ and adopted by HH Judge Caddick below. In my opinion the reference to a child in section 105(6) is intended to be a reference to the child who is the subject of proceedings under the Act and whose ordinary residence needs to be defined for some purpose under the Act. It is the child who is the subject of the section 31 care proceedings, not the mother.

I glean some support for this analysis from the decision of the House of Lords in Birmingham City Council v H (A Minor) [1994] 2 AC 212. That case was concerned with a different question, namely whose welfare was paramount when determining whether a mother, who was also a child, should have contact with her child. The mother had made an application for contact pursuant to section 34 of the Act. The House of Lords held that since the child was the subject of the proceedings, it was her interest which was paramount notwithstanding that the mother was also a minor. It was not appropriate, as the Court of Appeal had done, to treat both the mother’s and the child’s interests as carrying equal weight because the mother was also a child. Lord Slynn observed (p. 221H):

“It is clear that the draftsman of the statute did not specifically provide for the situation where both parent and child are children within the meaning of the 1989 Act.”

More specifically, in relation to section 34(2) of Act, which refers to an application for contact made by the authority or “the child” he commented (p.222E):

“It may be doubted whether a parent was ever intended to be included in the category of “child” in section 34(2) even if the parent is also a child.”

I have little doubt that Parliament did not have in mind the fact that a parent might also be a child when drafting section 105(6) either. It may be said that the position differs from the Birmingham case because section 34(2), the provision in issue in that case, refers to “the child” whereas section 106(5) refers to “a child”. However, in my view that is explained by the fact that section 34 is focusing on a specific application whereas section 105(6) is envisaging a wide range of potential applications. The indefinite article necessarily has to be employed.

The effect of this analysis in the context of section 105(6) is that the mother is treated as though she has two hats; she is a mother whose ordinary residence must be determined by common law principles when that concept is relevant for the purpose of determining her child’s ordinary residence for any purpose under the Children Act; but she is a child whose ordinary residence is modified by section 105(6) when it comes to determining her own place of ordinary residence for any purpose under that Act. The consequence of this is that mother and child may have different ordinary residences for any purpose connected with the Children Act, and will do so in this case.

I recognise that there are two potentially adverse consequences to this construction. First, the purpose of section 105(6)), as I see it, is to ensure that if and when a child is found accommodation out of the borough, the Council securing that accommodation must remain the designated authority so that it remains liable to foot the bill. It retains administrative, professional and financial responsibility for the child. If that were not the case, there would be a temptation to place children out of the borough in order to pass responsibility onto the receiving borough; or alternatively, where the placing borough is seeking to take advantage of facilities provided by the receiving borough, for the latter to refuse to make its facilities available, perhaps to the detriment of the best interests of the child.

Essentially the same policy arguments apply to the baby of a child as they do to the child herself. The need to discourage the off-loading of financial and professional responsibilities remains the same. Take the case of a thirteen year old pregnant mother. If she is placed out of the borough, the placing borough remains liable for the mother but the receiving borough becomes the potentially designated authority with respect to the baby as soon as the mother had been living in the receiving borough long enough to make it her ordinary residence at common law. It is only because the mother is placed out of the borough that the responsibility transfers; if accommodation were found in the placing borough, it would remain responsible for both mother and child.

A further consequence is that when the child is taken into care, two different authorities then become responsible for the welfare of the mother and child respectively: the placing authority retains administrative and financial responsibility for the mother but the receiving state becomes responsible for the child, even in circumstances where the child in care is allowed to reside with the mother. Each authority may have different views about the best interests of the particular child for whom they are responsible. No doubt that is not an insurmountable problem, but I agree with Stanley Burnton LJ that it is a far from satisfactory situation.

It does seem to me, however, that the risk of off-loading responsibilities can be exaggerated. First if the baby simply remains with the mother and no action under the Children Act needs to be taken by the receiving authority with respect to the baby, it will not be a designated authority for any purpose. The baby will not be a looked after child by the receiving authority. So it is only where some form of intervention is necessary that the receiving authority is at risk of taking responsibility for the baby.

Furthermore, authorities will not generally want to place children out of the borough because it is likely to be administratively more onerous for them to do so. More importantly, they are constrained in the decision as to where the child can be placed. Not only is there a duty under section 22(4) to consult, and then to have regard to the views of, certain affected parties including parents, but there is also a duty under section 23(6) of the Act to find accommodation with the parent, or the person with parental responsibility, or a relative or friend if at all possible, provided that this would be consistent with the child’s welfare. So this will constrain where the mother can be sent. Moreover, as Ward LJ has pointed out, there would be swings and roundabouts and a placing authority here would be a receiving authority there, although admittedly the balance is not necessarily complete since some authorities have significantly more accommodation available than others.

I recognise that there are anomalies whichever construction is adopted. As Ward LJ has pointed out, if a care order is made with respect to the baby one week before the mother ceases to be a child in care, and section 105(6) applies, the placing borough will become responsible for the baby during the whole of its minority. Yet if the care order is sought just one week later, after the mother has attained her majority, the common law concept would apply and the receiving authority would be responsible. Conversely, if the child is taken into care shortly before the mother is placed out of borough, the responsibility remains with the placing borough.

However, some of the difficulties identified by Ward LJ and which he relies on to support his conclusion, I respectfully consider to be of little weight. For example, he suggests that it makes little sense in an emergency involving the baby for a Kent police officer to have to contact Surrey when action needs to be taken in Kent. But that is already precisely what has to happen if the emergency affects the mother. Similarly with respect to the undesirability of the resident judge at Medway having to direct that an investigation be carried out by the social services in Surrey rather than Kent, who are more likely to know what is going on in their patch. That is exactly what the judge has to do if the mother’s position is under consideration. These problems are bound to arise in a system which seeks to ensure that the placing authority must retain responsibility for a child found accommodation out of the borough.

Moreover, I do not see why the application of section 105(6)(c ) should make the task of identifying the child’s ordinary residence, and therefore the designated authority, complicated; on the contrary, it may be more straight-forward. If the statutory modification applies and the disregard kicks in, the designated authority with responsibility for the child will necessarily be the same as the authority responsible for the mother. By contrast, although in general the application of the common law test of ordinary residence is easy, there will be occasions when it is not without difficulty.

On policy terms, therefore, I think that the construction preferred by Stanley Burnton LJ has much to commend it. However, in the end I am persuaded that the construction adopted by Ward LJ is correct, notwithstanding the potential disadvantages, essentially for three related reasons.

First, as I have said, I think it is the more natural reading of the section and I do not consider that the adverse consequences are such as to permit the inference that Parliament could not have intended to shift responsibility to Kent in these circumstances. Second, in Re H(Care Order:Appropriate Local Authority ) [2003] EWCA Civ 1629; [2004] 1 FLR 534 Thorpe LJ, giving a judgment with which Jonathan Parker and Dyson LJJ agreed, commented (para. 15) that “given the difficulty that has arisen in the application of the designated provision, I favour a narrow view of its extent.” A construction which limits the application of the subsection to children who are the subjects of the application before the court obeys that injunction.

I note as an aside that Re H itself highlights a further anomaly in the way in which these provisions apply. It held that if the child is placed out of the borough but with relatives (in that case, grandparents), section 105(6)(c ) does not apply because accommodation is not then provided by the local authority. So conventional common law principles of ordinary residence apply when determining the child’s ordinary residence in that context but not where the child is placed with a foster carer. It may be, however, that this conclusion depends upon a mistaken view of the legislation. Re H has been the subject of trenchant and powerful criticism by the Court of Appeal in SA (A Child) v A Local Authority [2011] EWCA Civ 1303; [2012] 1 FLR 628 who nevertheless felt bound to follow it. However, whatever the merits of the decision itself, the observation of Thorpe LJ to the effect that a narrow construction should be adopted was not called into question.

Third, as Thorpe LJ observed in Northamptonshire County Council v Islington Borough Council [1999] 2 FLR 881, 889:

“Any construction of section 105(6) can be said to produce anomalous results. We should not be over-impressed by anomaly arguments where the court’s function is simply to determine which authority is to be designated in the care order.”

If one adopts a narrow interpretation of the subsection, and ignores the anomalies, which Re H and the Northamptonshire cases enjoin us to do, then I believe that the construction adopted by Ward LJ is the appropriate one. The mother’s ordinary residence has to be assessed by reference to common law principles without any modification by section 105(6).

The judge below held that applying common law principles the mother’s ordinary residence was Kent. That is not the subject of appeal, and I would not in any event dissent from his conclusion. I would only observe that the application of the common law test may not be entirely straight forward where, as here, the mother is a child in care. I can see some force in the submission that since the concept of ordinary residence involves the voluntary intention to settle in a particular place, a placement dictated by a local authority can never be voluntary, however content the mother may be with it. Even if, as the judge found, it was the clear intention of the mother to remain in Kent, the relevant intent may be that of the placing local authority rather than the mother. That, as I read the decision, was the view of Sumner J in the case of Greenwich LBC v S [2007] EWHC 820; [2007] 2 FLR 154 (when section 105(6) was not in issue because the children in that case had been placed with a relative and Re H was applied.) However, even if that is the correct analysis of the common law position, there is no reason to doubt that Surrey had a settled intention to place the child in Kent; there was no evidence, for example, that this was intended to be a short-term fostering arrangement pending a return to accommodation in Surrey. So I would accept that the mother’s common law residence is Kent even if it is the local authority’s intentions rather than her own which are in point.

For these reasons, I would dismiss the appeal and hold that Kent is the designated authority.