Court of Appeal rejects appeal by council over designation as local authority in respect of interim care order

The Court of Appeal has criticised litigation between two councils over which of them is responsible for the care of a baby.

Calderdale Metropolitan Borough Council and Cheshire East Borough Council each claimed responsibility for child G lay with the other.

Mr Justice Cobb, who heard the case with Lord Justice Newey and Lord Justice Nugee, decided the child was now ordinarily resident in Calderdale through his mother having become resident there.

He said the outcome meant multiple statutory duties, and significant financial responsibilities, fell to Calderdale.

“It is regrettable that the dispute over designation has hung unresolved over the management of the case for the last three months; both authorities will have expended valuable time, effort and money in its resolution,” Cobb J said.

“Many times…have courts urged local authorities to refrain from litigating these issues wherever possible, particularly given that litigation is undertaken at public expense,”

He was left “largely unconvinced” that any exceptional circumstances existed to justify legal action.

The court heard Section 31(1) of the Children Act 1989 provides “on the application of any local authority” the court may make an order “placing the child with respect to whom the application is made in the care of a designated local authority”. [emphasis in judgment]

Cobb J said the statute provides that the court will designate the authority in which the child is ordinarily resident.

Where the child does not reside in the area of a local authority, it would designate the authority within whose area any circumstances arose in consequence of the order being made.

Cheshire East in July 2024 issued proceedings seeking a care order, and interim care order, for G, a newborn baby boy.

The Family Court at Chester ordered Calderdale should be the designated local authority for the interim care order concerning G.

Calderdale argued the judge was wrong and appealed with the permission of King LJ, who also stayed the order, leaving Cheshire East as the designated authority.

The court was told G’s mother has two older children from a previous relationship and a significant family history of serious domestic abuse, substance and alcohol misuse, sexual exploitation of the mother's older child, neglectful home conditions, anti-social behaviour, resistance to working with social workers and the mental ill-health of both parents.

Pre-birth social work planning for the baby was conducted in Cheshire East, which was told the parents were in the process of moving to Calderdale.

In the early summer of 2024, the mother registered with a general practitioner in Calderdale and in early July 2024 attended an ante-natal appointment in Calderdale, where the parents made clear their intention to reside.

Five days following his birth, G was moved to a hospital in Calderdale so that the parents could be nearer to him.

In August 2024 the mother filed a witness statement which said she did not intend to return to Cheshire but would remain in Calderdale.

Calderdale argued G did not necessarily or automatically acquire the ordinary residence derived from his mother.

Even if the mother's actual residence had changed, this could not lead to a finding that she had acquired a new 'ordinary residence' with which G would be fixed as her dependant, because in this period G himself had been in accommodation - a hospital and then a residential unit - which had to be disregarded under section 105(6) CA 1989 in the assessment of his ordinary residence.

Cheshire East argued that as a newborn baby, G had necessarily acquired the 'ordinary residence' of his mother and the disregard provisions under section 105(6) CA 1989 did not apply to the mother's acquisition of a new 'ordinary residence'.

Cobb J found: “Given that in the period under review, G had been physically present in Calderdale for a period of weeks, and had been cared for in hospital by his mother for extended periods of each day, there is no reason why the general rule of acquisition of ordinary residence by dependency should not apply.”

Calderdale further submitted that G's mother had not acquired 'ordinary residence' in Calderdale at the relevant date while Cheshire East rebutted this.

Cobb J said: “In my judgment, the judge was entitled on the facts to conclude that G's mother had become ordinarily resident in Calderdale..... He was entitled further to find that G had by then acquired the ordinary residence of his mother.”

Lord Justice Nugee and Lord Justice Newey both agreed.

Mark Smulian