Factual matrix taken from an ongoing case:
Care proceedings issued by local authority A in respect of two children with special needs.
Mother said she had moved with children to local authority B, on the same day that proceedings had been issued.
At the initial ICO hearing local authority A’s application was supported by the father who was being denied contact by the mother in breach of a private law order in his favour, but opposed by mother and the Guardian, who did not support separation.
The mother confirmed her intention to remain within the area of local authority B.
Local authority A revised its position and sought ISOs and a designation hearing.
At the designation hearing the mother and children remained living in area of local authority B subject to ISOs in favour of local authority A, although there was a dispute about the circumstances and details of her living arrangements.
The mother had also been served with an eviction notice by the housing department in local authority A.
Mother had registered both children at a local GP, approached the Education Department in local authority B and been provided with details of appropriate schools for the children and local authority A’s SEN department had sent all their education files to their counterparts in local authority B.
Issues at the designation hearing:
Local authority A argued that mother and children were now clearly living within area of local authority B, albeit only for approximately four weeks, having registered with services locally and the children’s educational files having been transferred.
Housing in local authority A had discharged its duty to house the mother who had expressed a clear intention to remain living within the area of local authority B.
Local authority B opposed the transfer of designation and argued that the test of ordinary residence in their area had not been met.
Legal Principles:
Local Authority A submitted that the fact that designation takes place under a final or interim order is irrelevant to the establishment of designation and that the test to be applied to establish designation is the same in both cases.
Local Authority A submitted that designation under a supervision order is governed by Schedule 3 Pt II, paragraph 9, CA 1989, as follows:
(1) A supervision order shall not designate a local authority as a supervisor unless:
(a) The authority agree; or
(b) The supervised child lives, or will live within the area
and that it does not require any investigation into past events, nor is there any requirement for the decision to be predicated on habitual or ordinary residence.
Although it was only at an early interim hearing local authority B relied upon S.31 (8) CA 1989 which provides:
(8) The local authority designated in a care order must be
(a) the authority within his 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.
Relying on the dicta of Mr Justice Cobb in Re G (Designation of Local Authority) [2024] Civ 1565 local authority B submitted that the test for “ordinary residence” had not been made out for the following main reasons and that local authority A should remain the designated Authority:
The mother had only resided within the locality of local authority B for less than a month, had no legitimate tenancy and no ties or links to the area;
The children were not enrolled in school;
Whether necessary lateral checks had been made by local authority A in respect of housing, education and mother’s housing arrangements and the friend she was living with;
That even if the mother intended to remain living within local authority B’s area designation was a issue for consideration at the final hearing and should remain with local authority A throughout the proceedings;
That the short period of residence would normally result in a transfer of a Child Protection Plan and that local authority B’s protocol on transferring cases required a family to have been living in the new authority for a period of three months and be expressing a clear intention that they wished to remain permanently before an authority makes a transfer request to the other.
Local authority B also argued that local authority A had issued proceedings for care/supervision orders and that the decision to seek ISOs as opposed to ICOs did not affect the position with regard to the test for ordinary residence.
After hearing submissions the Judge had little hesitation in deciding that the designation test for an interim ISO was, as submitted by local authority A, subject to Schedule 3 Pt II, para 9 CA 1989, and was not the same as the test for the making of a final care order, as submitted by local authority B.
The Judge was satisfied that the mother had made the decision to move and was planning to remain with the children within the area of local authority B, having severed all links with local authority A, who would experience real difficulties if they retained the ISOs, and ordered that designation should pass to local authority B and the matter listed for a CMH in the nearest family court in local authority B on the earliest date available.
As far as I am aware local authority B has not appealed and the matter is continuing within their jurisdiction.
For more information about about family team please contact 01227 786331 or clerks@becket-chambers.co.uk
