Factual and Procedural Background
This opinion concerns an appeal against the designation of the local authority responsible for a care order under the Children Act 1989 ("CA 1989") in respect of a baby ("G") born prematurely in mid-2024. Proceedings were initiated by Company A (Cheshire East Council) on 12 July 2024 seeking a care order and interim care order for G. At a hearing on 23 August 2024, Judge Shaw of the Family Court at Chester designated Company B (Calderdale MBC) as the responsible local authority under section 31(8)(a) CA 1989, a decision Calderdale appealed with permission granted by King LJ. The appeal was stayed, leaving Cheshire as the designated authority during the proceedings.
G is the only child of the mother and father, who have a troubled history involving social services, domestic abuse, substance misuse, neglect, and mental ill-health. The parents initially lived in rented accommodation in Cheshire but faced eviction and subsequently moved to a caravan located in Calderdale, where they held a seasonal licence. The mother registered with medical services in Calderdale and intended to settle there permanently, although the tenancy in Cheshire was not formally relinquished at the time of the hearing.
Following G's premature birth in Manchester, he was moved to a hospital in Calderdale at the mother's request. The mother spent significant time caring for G there. A residential assessment of the mother and G was ordered by the court, conducted in a unit between Cheshire and Calderdale. The judge made his designation ruling after reviewing written evidence, submissions, and an agreed chronology, concluding that Calderdale was the appropriate designated local authority.
Legal Issues Presented
- Whether G had acquired a place of ordinary residence in his own right under section 31(8)(a) CA 1989, considering the 'disregard' provisions of section 105(6) CA 1989 for periods spent in hospital or local authority accommodation.
- Whether G acquired ordinary residence by dependency on his mother’s ordinary residence under section 31(8)(a) CA 1989.
- Whether the mother had acquired ordinary residence in Calderdale as a matter of fact.
- Whether, alternatively, the designation should be made under section 31(8)(b) CA 1989, based on the local authority area in which the circumstances arose giving rise to the care order.
Arguments of the Parties
Appellant's Arguments (Calderdale MBC)
- G did not acquire ordinary residence in either Cheshire or Calderdale in his own right because he had spent all relevant time in accommodation (hospital and residential unit) that must be disregarded under section 105(6) CA 1989.
- G did not necessarily acquire ordinary residence by dependency on his mother, citing evolving caselaw and arguing that physical presence in the local authority area is necessary, which was lacking due to the disregarded accommodation periods.
- The mother had not acquired ordinary residence in Calderdale as a matter of fact, given inconsistent intentions, retention of tenancy in Cheshire, the temporary nature of the caravan accommodation, and lack of community ties.
- If G had no ordinary residence, the designation should be made under section 31(8)(b) CA 1989, with the relevant circumstances arising in Cheshire due to the parents’ long history with Cheshire’s social services and the majority of threshold concerns originating there.
Respondents' Arguments (Cheshire East Council, Mother, Father, Children's Guardian)
- G, as a newborn, necessarily acquired the ordinary residence of his mother, who had established ordinary residence in Calderdale.
- The disregard provisions under section 105(6) CA 1989 do not apply to the mother’s acquisition of ordinary residence and the time G spent in hospital in Calderdale reinforced the mother’s integration into Calderdale.
- The mother had made a firm move to Calderdale, with evidence supporting her intention to make Calderdale her permanent home, including medical registration and the residential assessment.
- The lack of secure accommodation in Calderdale was the "ultimate or outstanding" circumstance triggering local authority intervention, validating designation under section 31(8)(b) CA 1989.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re P (Care Proceedings: Designated Authority) [1998] 1 FLR 80 |
Definition and approach to 'ordinary residence' and designation of local authority under CA 1989. |
Used to frame the factual determination of ordinary residence without excessive sophistication. |
| Northamptonshire CC v Islington London Borough Council [1999] EWCA Civ 3031; [2001] Fam 364 |
Ordinary residence of a child is dependent on the ordinary residence of the parent; date for determining ordinary residence is date of hearing. |
Followed as binding authority on dependency and designation principles. |
| C (A Child) v Plymouth County Council [2000] 1 FLR 875 |
A newborn child’s ordinary residence is necessarily dependent on the mother’s residence. |
Applied and qualified to reflect that the dependency rule is usually but not invariably true. |
| London Borough of Redbridge v Newport City Council [2004] 2 FLR 226 |
Date of hearing as the relevant date; ordinary residence and habitual residence are akin concepts. |
Guided the court’s timing and conceptual approach to ordinary residence. |
| Re D (Care Proceedings: Designated Local Authority) [2012] EWCA Civ 627; [2013] Fam 34 |
Ordinary residence of a child depends on the reality of the mother’s residence; disregard provisions apply to the child, not the mother. |
Supported rejection of arguments applying disregard provisions to mother’s residence. |
| Re W (A Child) (Designation of Local Authority) [2016] EWCA Civ 366; [2017] 1 FLR 1511 |
Confirmed dependency-based ordinary residence applies generally; qualified Plymouth’s formula. |
Used to clarify the dependency test and its application. |
| Re S (A Child) [2017] EWCA Civ 2695 |
Physical presence is a requisite for establishing ordinary residence; habitually resident and ordinarily resident are akin. |
Supported the necessity of physical presence but court found G had physical presence despite disregard provisions. |
| Re B (A Child) (Designated Local Authority) [2020] EWCA Civ 1673; [2020] 2 FLR 745 |
Provides guidance on preparation of agreed chronology and factual matrix for designation hearings. |
Followed procedural guidance for evidence and submissions. |
| Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 |
Habitual residence depends on physical presence and integration into family life. |
Referenced for the principle that physical presence is necessary for residence. |
| A v A (ZA & NA v PA) [2012] EWCA Civ 1396; [2013] Fam 232 and [2014] 1 FLR 111 (Supreme Court) |
Physical presence is generally necessary for habitual residence; dependency usually but not invariably applies. |
Used to qualify the dependency rule and emphasize physical presence as a prerequisite. |
Court's Reasoning and Analysis
The court conducted a detailed statutory and case law analysis focusing on the interpretation and application of sections 31(8) and 105(6) CA 1989. It first considered whether G had acquired ordinary residence in his own right. The court accepted the disregard provisions applied to periods spent in hospital and local authority accommodation, concluding that G had not acquired ordinary residence independently during those periods.
Next, the court examined the principle that a newborn child’s ordinary residence is generally derived from the mother’s ordinary residence. The court acknowledged recent caselaw qualifying the strictness of this rule but affirmed its general applicability. It rejected the appellant’s novel argument that the disregard provisions should apply to the mother’s acquisition of ordinary residence, emphasizing that these provisions relate only to the child.
The court also rejected the argument that physical presence was lacking, noting that G had been physically present in Calderdale for several weeks and cared for by his mother, thereby satisfying the requirement for physical presence in the area of ordinary residence.
Regarding the factual question of the mother’s ordinary residence, the court found that despite some inconsistencies and the temporary nature of some arrangements, the evidence supported a finding that the mother had established ordinary residence in Calderdale by the date of the hearing, with a firm intention to remain there.
Because the court was satisfied that G was ordinarily resident in Calderdale by dependency on his mother, it did not need to definitively resolve the alternative argument under section 31(8)(b) CA 1989. However, the court noted that this provision is broadly framed and that the judge’s back-up reasoning was consistent with the statutory purpose.
The court also commented on the broader context, urging local authorities to avoid protracted disputes over designation due to the strain on public resources and emphasizing that designation decisions are not final and may be revisited if circumstances change materially.
Holding and Implications
The court DISMISSED THE APPEAL, affirming the designation of Company B (Calderdale MBC) as the local authority responsible for the care order concerning G.
This decision confirms that, for designation purposes under section 31(8) CA 1989, a newborn child’s ordinary residence is generally derived from the mother’s ordinary residence, which is a factual determination based on the mother’s actual residence and intentions. The court reaffirmed that the disregard provisions in section 105(6) CA 1989 apply to the child’s accommodation only, not to the parent’s acquisition of ordinary residence. The judgment underscores the importance of physical presence in determining ordinary residence, while recognizing the statutory scheme’s flexibility to ensure practical and just outcomes.
The ruling has direct implications for the financial and statutory responsibilities of the designated local authority. No new precedent was established beyond clarification and application of existing principles. The court emphasized that designation is not immutable and may be reconsidered if circumstances change.