Court of Appeal allows appeal by city in dispute between three councils over designation in respect of care order

A city council has won an appeal over its designation as the local authority in respect of a care order for a 15-year-old girl (J) who was in need of secure accommodation.

On 20 February 2020 HHJ Jordan at the Manchester Civil Justice Centre had ordered that Salford City Council be designated as the local authority in respect of the care order which was made the same day.

This meant that Salford was not only subject to various statutory duties in relation to the child in question, but also bore the consequent financial responsibility for her.

In the case of B (A Child)(Designated Local Authority) [2020] EWCA Civ 1673 this meant secure accommodation for a child who had become a danger to herself or others at considerable cost.

Lady Justice King noted that section 31(8) CA 1989 provides:

The local authority designated in a care order must be:

a) The local authority within whose area the child is ordinarily resident; or

b) Where the child does not ordinarily reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which order is being made.

Section 31(8) CA 1989 is qualified by section 105(6) CA1989 which provides that when determining the ordinary residence of a child, any period in which he or she is being provided with accommodation by, or on behalf of, a local authority shall be disregarded. (Section 105(6)(c)) ('the disregard').

The case before the Court of Appeal turned on whether J was accommodated by Lincolnshire City Council for the purposes of the disregard provision.

Lady Justice King said it was common ground that during the course of 2018-2019 J lived, first in Lincolnshire with her adoptive father ("the father"), then in Cheshire East with her birth brother ("DB") and finally in Salford with her birth mother ("the mother").

The appeal centred upon a dispute between the three local authorities as to whether those periods of time when J lived with DB and with her mother should be disregarded for the purposes of determining her ordinary residence and therefore in designating the appropriate local authority.

The judge held that Salford, the authority which made the ultimate application for a care order, should be the designated local authority.

Salford appealed, submitting that the local authority which should properly have been designated by the judge was Lincolnshire where J spent ten years of her life and where her father, the only person having parental responsibility, continued to live.

The financial consequence of Salford becoming the designated local authority for J in financial terms was, at the point the appeal was lodged, estimated to be in the region of £550,000 including the cost of £30,000 per month to cover the cost of her placement at a secure unit. Counsel for Salford did accept, however, that the financial implications had no legal relevance in deciding the outcome of a designation dispute.

Lady Justice King said that in determining how, if at all, the s105(6) disregard provision bit in the present case it was necessary to consider:

(1) Whether J had become an accommodated child pursuant to s20 CA 1989 and if so, when? That in turn requires the court to decide: (a) when J left Lincolnshire upon the breakdown of her relationship with her father and moved to stay with DB in the Cheshire East area, did she become an accommodated child under Section 20(1) CA 1989, notwithstanding that there had been a failure on the part of Lincolnshire to complete the relevant formalities; and (b) if so, when she thereafter moved to live with the mother in the Salford local authority area did that remain the case?

If J was not an accommodated child when living with DB (and therefore not accommodated when living with the mother):

(2) Did J live with either DB or her mother under a private fostering arrangement pursuant to S66 CA 1989?

(3) Alternatively, were either, or both, of the placements private family arrangements? [Lady Justice King’s emphasis]

Lady Justice King held that during the period between her departure from her father and her arrival with her birth mother, J was accommodated by Lincolnshire.

“In consequence of s31(8) CA 1989 as qualified by s105(6) CA 1989 that period is to be disregarded when identifying the designated local authority. It follows that …. this appeal should be allowed and Salford substituted by Lincolnshire as the designated local authority in relation to the care order which was made in respect of J.”

She added that the judgment “by its very length flies in the face of Thorpe LJ's exhortation [in Northampton CC v Islington Council [1999] EWCA Civ 3031] that determining the appropriate local authority to be designated should be a 'rapid and not over sophisticated' process.

“I would hope that a case such as this will prove to be wholly exceptional and local authorities will continue to do all in their power to reach agreement between themselves as to designation in respect of the few cases which throw up the sort of difficulties encountered in this appeal.”

Lady Justice Asplin and Lord Justice Lewis agreed.

Commenting on a case management issue around chronologies, Lady Justice King also pointed out earlier in her judgment that both the judge at first instance and the Court of Appeal had been presented with highly technical skeleton arguments relating to Section 20 Accommodation, Private Fostering Arrangements and Family Arrangements. “In addition, sheaves of case notes and social work records have been filed which each side prays in aid in support of their respective submissions as to whether J was (or was not) accommodated by Lincolnshire during the months she lived in the Cheshire East and then Salford local authority areas.”

The Court of Appeal judge noted that as compared with the 1990s there had been a loosening of the hitherto tight regulation of social work records. “This change in approach does not mean, however, that it should now become the judge's function to wade through reams of records from three different authorities, which records, by their very nature, combine opinion mixed with factual information.”

Lady Justice King said HHJ Jordan should have had the benefit of a single, agreed, objective chronology to work from, supported by statements addressing the test where appropriate. “The history in this case was unusually complicated and it was clear that the decision as to designation would turn on the application of the disregard provision. In those circumstances it would have been prudent, once each of the local authorities had had an opportunity to consider each other's case notes, for they or their representatives to make a concerted attempt to agree a chronology, or failing that, to produce a single chronology highlighting areas of disagreement where relevant.”

Instead, Lady Justice King said, the court was presented with three separate chronologies. “These chronologies most closely resemble a pick-and-mix of facts and opinion seemingly designed solely to assist the case of the party producing the document. Chronologies should not be interwoven with opinion, nor should it be the judge's job to cross-check them in order to establish what is, and what is not, agreed by the parties.”

The Court of Appeal judge said HHJ Jordan was “put in an impossible position in trying to tease out the true course of events”.

“By way of example only: the manner of J's movement from the father to the home of DB in February 2019 was a critical issue in determining whether, on the one hand, J was accommodated by Lincolnshire or, on the other, the move was a private fostering or private family arrangement as between the father and DB which had been merely facilitated by Lincolnshire. The chronologies filed by Salford and Lincolnshire contradicted each other as to who it was that made arrangements for J to move to DB's care, meaning that it became necessary for the court to go to the source material.”

Lady Justice King said she was only too aware of the pressure under which local authorities work. “However, when chronologies like these are produced, judicial time is wasted in trying to discern precisely the facts from which the court should work. I would remind all parties that chronologies must be concise, non-partisan and purely factual. Whilst the judge reserved judgment precisely because of the volume of paper he had been given, he cannot have been expected to have read and cross referenced all the material, and in my judgment it is little wonder that errors crept in. It is just unfortunate that one, namely Lincolnshire's state of knowledge when J moved from the home of DB to that of her mother, was a matter of considerable significance.”