Warrington Borough Council v R

MR JUSTICE HOLMAN: It is sometimes necessary and inevitable, but always very sad, when an application for a care order has to be made in relation to a baby immediately after his or her birth. That is the situation in this case. The baby is still less than three days old. He was born shortly before midnight last Monday, 31^st October 2016. Today, as I speak, is around 4.20 pm on Thursday 3^rd November 2016. This is already, in fact, the second court hearing in relation to him, since there was a hearing before lay justices in Liverpool on Tuesday 1^st November 2016.

Very understandably indeed, in the months prior to his birth the Warrington Borough Council were very concerned about the safety and future of the expected baby. They clearly planned and, indeed, made the mother aware, that they would commence these proceedings immediately after his birth. It is not necessary for me today to go into the reasons. The mother is still young, being aged 20, and the putative father is slightly younger, being aged still 19. The mother had already given birth to an earlier child by a different father. Attempts had been made to enable her to mother and bring up that child, and those attempts had clearly broken down. That child is now the subject of a special guardianship order.

It is said by Warrington that, in a range of respects, the recent lifestyle of the mother and putative father has been “chaotic”, and that there has been a number of stresses or tensions in their relationship. It does seem clear that the initial stance of Warrington as recently as Tuesday, if not yesterday, was that the baby should not leave hospital with his mother, but should be fostered separately from her under an interim care order. The guardian did not agree with that. As a result, and in constructive response to what the parents themselves have said in their statements, Warrington have reconsidered their position. They made plain at an early stage of this hearing today that, in principle, they were now willing to organise and fund that the baby and his mother should be placed together in a mother and baby foster home. I entirely agree with that position.

On my own reading of this case before coming into court today, I was provisionally, but clearly, of the view that it could not be right at this stage to separate this baby from his mother. The difficulties that an even younger mother may have experienced in different circumstances in trying to mother her first baby are not necessarily predictors of how she will mother and care for her second or subsequent babies. Indeed, if they were, no mother would ever be able to care for a subsequent baby once an elder one had been removed from her.

Further, although I perfectly understand the range of concerns of Warrington in relation to this baby and the parenting he may receive, it does not seem to me that there is anything in the recent history so serious or significant that it should immediately preclude or rule out a sincere and genuine attempt to enable a baby to be mothered and brought up by his mother. Therefore, I entirely agree with, and endorse, the outcome that has been reached today.

A considerable amount of time has been spent today in discussions outside court, and in considering a small selection of alternative mother and baby foster homes which are currently available. The upshot is that there is agreement between Warrington and the mother and the guardian as to the choice of home to which the mother and baby will go upon leaving hospital tomorrow.

A quite detailed working agreement, and a short interim care plan, have been drafted, agreed, and signed to give effect to that outcome and some of the practical details and arrangements. I expressly agree with, and approve the contents of, both those documents.

On the basis of those documents, I will, by consent of all parties, make an interim care order, placing the baby in the interim care of Warrington Borough Council until the conclusion of these proceedings, or earlier further order. The order will make express that it is made upon the basis of that interim care plan and working agreement. Further, the order will expressly provide that, save in an emergency, and if there is an immediate risk of danger to the child, the local authority must not remove or separate him from the mother without further application (which can be made on short notice) to the court. Those words mean what they say. Obviously if there is an immediate risk of danger to this child, he can and must be removed at once from the mother. However, if the local authority have concerns, however justified, falling short of immediate risk of danger, then they must make a further application to the court before they remove or separate the child from the mother.

Therefore, if, for instance, there was a concern that the baby was failing to thrive, or that the mother was neglectful of him without exposing him to an immediate risk of danger, then the local authority must not separate or remove him, but must make their further application to the court.

I turn now to various other important matters which have been discussed today, and in explanation of some of the terms of the order. The first matter is that there must, objectively, necessarily be some question mark in relation to the paternity of this baby. The mother strongly says that her current partner, [name redacted] is the father. He is here in court. He is displaying strong paternal feelings in relation to this baby. I do not, for one moment, doubt that he personally feels and believes that he is the father. Nor do I necessarily doubt that the mother believes him to be the father. But (although this may later be the subject of challenge and dispute) the social work history shows that the mother first stated that she was pregnant during December 2015 when, realistically, she could not have been unless there was an extraordinarily long gestation period. The likely window within which this baby was conceived is roughly the period from mid-January to mid-February 2016. It appears that there was at least one weekend during that period which the mother spent away with the man who is her former boyfriend, and, indeed, the father, or putative father, of her elder child. Those facts must necessarily raise objective reservations with regard to paternity, and it is vital that it is established by DNA testing as a matter of urgency whether or not [the current partner] is the genetic father of this child. Indeed, I personally very much hope that the DNA tests will establish that he is the genetic father. He believes himself to be the father and the mother asserts him to be the father; but that is a matter which clearly must be resolved once and for all by the reliable scientific testing which is now readily available, and is not invasive.

That needs to be resolved as a matter of urgency. There is no time to wait to obtain prior authorisation from the Legal Aid Agency with regard to funding, and I accordingly direct that the taking of the samples and the testing of them must all be urgently arranged by, and funded by, Warrington Borough Council.

The next matter is the court venue at which these proceedings should now settle down and be heard. I understand that care applications made by Warrington Borough Council are initially required to be made, or at any rate are made, to the family court sitting in Liverpool, which is what happened in this case.

Because of the gravity of these interim issues, and my availability as a High Court judge sitting here in Preston today, this hearing was transferred for hearing here. But clearly this case should not remain at the High Court level, but nor, in my view, should it return to the justices. Very serious and potentially difficult decisions may require to be made in relation to this very young baby.

Therefore, in my view, and with the agreement of all parties, the case should now be allocated to a judge at the level of a circuit judge. Normally, that might be a circuit judge sitting in Liverpool, since the applicant local authority remain Warrington Borough Council. However, the actual locality of the mother and baby foster home that has been agreed upon is the town of [name redacted]. I have been told that it is far more easy and convenient for the mother to travel from that town into Manchester than into Liverpool. Apparently, it is a relatively short single bus journey from that town to the centre of Manchester, but would be a much more complicated and lengthy journey from that town into the centre of Liverpool. In a situation like this, in which the central figures are, frankly, the baby and the mother who is caring for the baby, it seems to me that considerable priority must be given to the relative ease and convenience for the mother of travelling to court, at any rate during the initial stages of this case.

For those reasons, I am now transferring this case to be heard at the Manchester Civil Justice Centre, and allocating it to His Honour Judge Jordan, who has been identified as a circuit judge who sits there regularly, and is available to hear the next hearing on a suitable timetable.

The final matter to which I must refer is the thorny question of which local authority should be designated in the interim care order. It was Warrington Borough Council who made this application for a care order. They did so because, until recently, both the mother and the putative father have lived for a long time in the area of Warrington. Indeed, it is the Warrington Borough Council who have all the knowledge and awareness of the past history to which I have briefly referred. However, about ten days before the birth, the mother and putative father signed a lawful tenancy agreement of a property within the area of Wigan Borough Council. They have moved there. They say that they have furnished it with a cot and other equipment for the baby, and that they have made it their home. As I understand it, it is there that they were in fact living immediately prior to the birth of the baby, and for that reason it was at a hospital in Wigan that the baby was born, and where he and the mother remain, and will sleep tonight. Therefore, Warrington Borough Council took the view that the local authority correctly to be designated in a care order were not themselves, but Wigan Borough Council. They alerted Wigan to this, and as a result Wigan have attended today by a team manager, Ms Angela Shortall, and by counsel, Miss Heather Hobson.

These issues of designation can sometimes be quite tricky ones. From the point of view of the competing local authorities, of course, very considerable expenditure of funds may turn upon whether the designated local authority are the one or the other. In the end, I have not heard much argument on this point today. I have, indeed, dampened down the argument after considering in particular the footnotes of the current 2016 Family Court Practice, at pages 529 to 530, and, of course, the provisions of the statute itself. Section 31(1) of the Children Act 1989 refers to the application “...of any local authority…” and to the court then placing the child “...in the care of a designated local authority...” It is quite clear from that wording that the local authority who make the application, who may be “...any local authority…” may be different from the local authority who are then designated by the court if and when it makes a care order. Section 31(8) then provides as follows:

“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.”

Clearly, if a child can be said to be “ordinarily resident” in the area of a particular local authority, then that local authority must be designated in the care order. That is the plain effect of section 31(8)(a). There is no discretion.

As I have said, however, I am dealing in this case with a baby who is not yet three days old, and has not yet even left the hospital of his birth. It may be a moot question whether he is ordinarily resident anywhere. Just to take an example, if a mother who lived in one part of the country had to travel to another part of the country to give birth at a specialist hospital due to complications of the pregnancy or with the baby, it would be absurd to treat the baby, while still in hospital, as being ordinarily resident in the area in which that hospital was situated.

The footnotes to which I have referred in the Family Court Practice include the following sentence:

“It is open to the court to hold that a new born baby is incapable of ordinary residence apart from the mother, so that the baby’s ordinary residence is the same as that of the mother.”

The next difficulty that arises in this case, however, is to determine the “ordinary residence” of the mother on the particular facts of this case. Until very recently, she was unquestionably ordinarily resident within the area of Warrington, because, as I have said, it was only very recently that she and the putative father have set up what they assert to be a medium or long-term home in the area of Wigan. It would, I think, be the case of the mother that the place in which she is now resident is not Warrington, but Wigan. Whether that residence has yet acquired the quality of being “ordinary residence” may be another moot question.

I note further that the same footnote continues by stating:

“A designation of a local authority at an interim hearing is subject to reconsideration and possible variation at a later date.”

No authority appears to be cited for that particular proposition, but, of course, anything stated in the carefully drafted and regularly revised footnotes to this very authoritative manual is worthy of considerable respect.

Therefore, I proceed on the basis that although today I will designate Warrington Borough Council as the local authority in whose interim care the baby is placed, that is a decision which is capable of “reconsideration” at a later date. I do not regard the decision which I reach today to designate Warrington Borough Council in the interim care order which I make today as necessarily determinative for all time of the local authority in whose care this child may be placed if there are further or long-term care orders. It should, however, be stressed and emphasised that by virtue of the “statutory disregard” in section 105(6) of the Children Act 1989, the fact that the child will now be provided with accommodation by, or on behalf of, Warrington Borough Council in the area of Wigan Borough Council must always be disregarded in determining the ordinary residence of this child. That, however, would only apply for as long as the child is being provided with accommodation by, or on behalf of, Warrington.

There may come a time when the mother and baby leave the mother and baby foster home, and move to live in the community in accommodation provided by the mother herself, whether the accommodation that she and the putative father currently rent, or indeed some other accommodation. Once she and the baby were living in the community in accommodation provided by themselves, that statutory disregard would cease to be operative, save in relation to the period during which he had been living in accommodation provided by, or on behalf of, Warrington.

So far as the decision as to designation today is concerned, there is, further, a pragmatic imperative. The fact of the matter is that this baby and mother must leave the hospital of his birth tomorrow, and they very urgently need accommodation. The fact of the matter is that Warrington had already identified a small selection of suitable mother and baby foster homes, and had reached their necessary in principle funding decisions. Wigan knew nothing about this case until yesterday. They have not themselves researched or identified any mother and baby foster homes. There has been no consideration of funding decisions by the officials or bodies within Wigan who have to make those decisions. Quite frankly, if I were to designate Wigan today, I would create a void and a shambles for this child, which must surely be the very last thing that anybody would wish.

However, I cannot simply adopt a pragmatic approach, since the provisions of section 31(8) of the Children Act 1989 are not discretionary, but are mandatory upon the court. The language of section 31(8) is “...must be...” However, it does seem to me that paragraph (b) of subsection (8) does import some choice which may be made by the court. It refers to “...the authority within whose area any circumstances arose in consequence of which the order is being made.” It may be said in this case that some of the circumstances have arisen in the area of Wigan. Indeed, we are only here today because of the fact of the birth of the child, who was born in Wigan. However, if one pauses to consider the “...circumstances...” “...in consequence of which the order is being made...” all those circumstances have, in this case, arisen in the area of Warrington. The interim care order is not being made “in consequence of” his birth, but “in consequence of” perceived shortcomings of the mother and/or putative father. As I have said, the Warrington Borough Council were clearly resolved to institute care proceedings before this child was even born, and their reasons for doing so (which may be very good reasons) all pertain to events which occurred prior to the birth, and which occurred within the area of Warrington.

Therefore, it seems to me that overwhelmingly the area within which the circumstances arose in consequence of which the order is being made today is the area of Warrington Borough Council. Consequently, I am quite satisfied that I not only can but, indeed, should, by proper application of the statute, designate Warrington Borough Council as the local authority to be designated in the interim care order which I make today.