How Dorset feel – to treat me like you do?

Or, Wakefield its a beautiful morning, if you are more Boo Radleys than New Order.

Another day, another case about designated authority.   This one answers the question “Does the stop the clock provision apply under a Supervision Order?”

Stop the clock, I’ve found the clue!

(Stop the clock is the colloquial term family lawyers use for the provision of section 105(6) of the Children Act 1989 which in very broad terms is the care order gets made to the LA where the child is living UNLESS the child is living somewhere because the LA put the child there. It is probably the most litigated provision in the Children Act 1989, leading to case after case where the Judge sighs in exasperation and says in judicialese  “I’m sure Parliament did not intend for Local Authorities to spend quite so much time squabbling about this”  .   For the avoidance of doubt, these squabbles are almost always local authorities wishing that they were not going to be liable for all of the costs of looking after the child and trying to argue that it should be the other local authority – though in this case, the LAs break that mould and are actually reasonable and grown-up with each other. Hooray!)

section 105(6) of the Children Act 1989:

1. 1. 1. “In determining the ‘ordinary residence’ of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place—

(a) which is a school or other institution;

(b) in accordance with the requirements of a supervision order under this Act;

(ba) in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008; or

(c) while he is being provided with accommodation by or on behalf of a local authority.“

https://www.bailii.org/ew/cases/EWCA/Civ/2018/900.html

Re C (Children) [2018] EWCA Civ 900 (07 March 2018

Stop the clock DOES actually apply where a Supervision Order is made with a CONDITION that the child reside in a particular area  (and I’ll be honest, I didn’t know that.  It is clear from a close reading of the statutory provision, but it had just never occurred to me that it would ever happen)

5. It is plain, from a reading of those provisions, that a supervision order may contain a requirement under paragraph 2(1)(a) for the supervised child “to live at a place or places specified in the directions for a period or periods so specified”. There is also the facility for the court to impose an obligation on the responsible person (for example the father in this case to comply with directions. It seems, therefore, apparent that the provisions in paragraphs 2 and 3 of Schedule 3 of the Children Act may include a requirement in an appropriate case for a child to reside at a particular location. That that is so has long been established in case- law and, in particular, the decision of Hollings J in the case of Croydon LBC v A (No.3) [1992] 2 FLR 350.

It seems that at final hearing, that provision was dusted off and plonked in front of a Judge, who ruled  (wrongly, but understandably) that Wakefield was the right authority to hold the Care Order, because the children had moved to Dorset AFTER the making of a Supervision Order (before things went wrong) and the stop the clock provisions meant that it stayed as Wakefield.

However, just making the Supervision Order in and of itself didn’t stop the clock, there had to be a condition attached to the Supervision Order saying that the children were to live in Dorset with their father to stop the clock.

Wakefield appealed, and Dorset took a very wise view of the appeal.

9. The appeal that is now brought by Wakefield can be described in short terms, I having now laid the ground. The point simply is the supervision order made in these proceedings was not one that can be said to fall within the definition in section 105(6)(b) because there are no “requirements” made within the supervision order made under the Act. Having looked at the orders as I have described, that plainly is correct. This was a bald supervision order with no additional adornments, directions or requirements added to it. The basis of the order was that the children were to live in Dorset, but I accept, as the local authority submits, the purpose of the supervision order was to support that placement rather than to require it or to dictate that the children should remain living there. Thus it is plain, on my reading of the facts and of the provisions that it is not possible to hold that this case falls within section 105(6)(b). That position is expressly accepted by Dorset County Council in a helpful position statement that they have filed with this court. In terms they say this:
11. 1. 1. “Having considered Wakefield’s skeleton argument, Dorset County Council are not contesting this appeal. In fact, Dorset consents to the appeal.”

The skeleton argument makes plain that there is now agreement between the administrative authorities of the two local authorities that the groundwork, as it were, in terms of running the supervision of the care orders will be undertaken locally by Wakefield but will be funded and reimbursed by payments from Dorset. As I have indicated, neither of the parents have made any submissions on this point and there has been no communication from those acting for the children. It seems to me that the position now put forward by the two local authorities is entirely correct and that the period during which the children resided permanently with their father under the child arrangements order from December 2016 until the middle of 2017 represented their ordinary residence and that therefore they were ordinarily resident in Dorset at the time that Dorset issued the care proceedings that were eventually determined by the judge. On that basis, if my Lord agrees, I would therefore allow the appeal and direct that the care orders made for these two children should be amended so that the local authority designated is now to be shown as Dorset.

This spirit of collaboration and working in partnership is referred to in Re Z, yet ANOTHER section 105(6) case published on Bailii on the same day, which is a nice little quirk. It flummoxed me at first, until I looked at the dates.    (Re C’s judgment was 7th March 2018, Re Z 11th June 2019, but both were published on Bailii on the same day )

Re Z 2019

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B30.html

[You don’t need to read Re Z, the only bit of interest in it is that the mother in a set of care proceedings appeared to be represented by a “Trainee solicitor” but I suspect that is because  the mother had given instructions that she agreed the making of the Care Order and did not have strong views about which LA would take it on.  Quite nice for the trainee to get their name in a published judgment so early, something I’ve never managed as a lawyer, so big up to Bhanya Rawal.  If you are someone who googles your own name, this might be a bit of a surprise as you are tagged into this.  ]