Oh my flip.
Re S (A child) 2017
2017, but only published recently.
In a nutshell. Parents live in Leicester City (City) and mum is pregnant. City propose to issue care proceedings. Parents move to a new town, in Leicestershire (County). City write to County, and invite them to do something about the forthcoming baby. Discussions don’t resolve things, and so City say “we will issue care proceedings, and ask that you be designated as local authority”. No response.
Child is born in a maternity hospital which falls in Leicester City (City) and City issue care proceedings. ICO is made, child placed in foster care (which happens to be in the City, but that doesn’t matter because of s105 stop the clock provisions). Court designate County as the LA.
This is the fundamental question:-
- The question, therefore, arises as to whether, as is argued by Mr Kingerley on behalf of the respondent, a new-born child’s residence is derived solely from the mother’s place of residence, notwithstanding that the child has never been present at the place of the mother’s ordinary residence, and that there has been (and is) no intention that the child will ever be in the care of his mother.
At the appeal the two arguments are :-
City say it is County, because the child’s ordinary residence is with the mother in County.
- In C (A Child) v Plymouth County Council, whilst an interim care order was made in respect of the child in question immediately following her birth, that baby lived with her mother at various addresses in Liverpool and in Plymouth. The dispute centred around which of the two local authorities should be the designated local authority. It was in this context that, on the facts of that case, Thorpe LJ upheld the judge’s view that a new-born baby was incapable of having an ordinary residence apart from the mother, and that, therefore, the ordinary residence would be dependent upon the residence of the mother.
- This theme was picked up more recently by Ryder LJ in Medway v Kent  EWCA Civ 366 at :
- “In C (A Child) v Plymouth County Council  1 FLR 875 Thorpe LJ re-emphasised the basis of the Northampton decision which, he said, was to put an end to litigation of this kind between local authorities (see, for example at 878 and per Swinton Thomas LJ at 880). Thorpe LJ agreed with the first instance court that it was a reasonable inference of fact in the circumstances of that case that a new born baby would be unlikely to have an ordinary residence apart from her primary career and that for a child of such a tender age, the child’s ordinary residence would usually follow that of her carer.”
County say it is City, because the child’s physical presence in County is an essential ingredient of ordinary residence. The child never set foot in County, because the child was removed from hospital in City. Whilst if the child had not been removed and had gone home with mum the child would have been living in County, that doesn’t apply because it never actually happened. So the child has NO ordinary residence, and then the second limb applies, that the designated authority is the one with the background knowledge and where the circumstances that led to the care proceedings happening took place – in this case City.
[The Courts have found that habitual residence does REQUIRE physical presence at least at some point]
- The matter was thereafter heard by the Supreme Court- A v A and Another (Children: Habitual Residence)  UKSC 60,  AC1. Although there were extensive arguments before the court in relation to the requirement of presence before habitual residence can be established, the Supreme Court in fact decided the case, not on the issue of habitual residence, but upon nationality. The observations of the court in relation to presence were, therefore, strictly speaking, obiter, but, as Mr Roche rightly submits, of powerful influence upon this court. Mr Roche, therefore, relies on certain observations made in particular by Baroness Hale in her majority judgment (Lord Wilson, Lord Reed and Lord Toulson agreeing and Lord Hughes dissenting).
- Mr Roche highlights Baroness Hale’s reference to earlier cases where physical presence was assumed to be an integral ingredient of habitual residence and relies on Baroness Hale’s observations at paragraph :
- “So which approach accords most closely with the factual situation of the child – an approach which holds that presence is a necessary pre-cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child’s integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been”
- Mr Kingerley, for his part, also properly draws the court’s attention to the dissenting judgment of Lord Hughes in A v A, and, in particular, his observation at paragraph :
- “The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.”
And at :
“If current physical presence is not essential, then so also can habitual residence exist without any physical presence yet having occurred, at least if it has only been prevented by some kind of unexpected force majeure.”
- Mr Kingerley goes on to submit that to adopt the approach in A v A would undermine the concept of “rapid and not over-sophisticated review”, such as is required in a designation case since the days of the Northamptonshire case. A v A would lead, he says, to the introduction of a more complex and sophisticated test which is both unnecessary and goes against the approach of the Northamptonshire case, as confirmed by the Plymouth case.
- I accept Mr Kingerley’s submission to the extent that it would undoubtedly undermine the well-established approach to the determination of which local authority is to be designated for the purposes of a care order, if the court was expected to engage with detailed questions of fact of the type which might have been anticipated by the Supreme Court in order to determine habitual residence. It would, in my view, be both inappropriate and unnecessary to treat an application of this type in the same way, and with the same level of detail and sophistication as is sometimes found in disputes in relation to a child’s habitual residence in international cases.
- However, it is not that aspect of the judgment upon which Mr Roche relies. Rather, he relies on the fact that four of the five Supreme Court justices doubted that a child could acquire habitual residence in a country in which he had never been present.
- Since the decision in the Supreme Court, the CJEU has considered the issue of physical presence in the context of habitual residence.
- In W and V v X (Case C-499/15) the court held, at :
- “Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State.”
- A few months later in OL v OP Case C-111/17 PPU, in the opinion of the Advocate General, the question was posed at paragraph  as was:
- “… is physical presence a necessary and self-evident prerequisite, in all circumstances, for establishing the habitual residence of a person, and in particular a new-born child?”
- The Advocate General had the benefit of oral argument presented to him by, amongst others, Mr Edward Devereux QC on behalf of the United Kingdom. The Advocate General’s opinion in relation to this aspect of the matter is found at paragraphs [81-83]:
- “81.…it is not inconceivable that there may be wholly exceptional circumstances in which it might be appropriate to disregard the criterion of physical presence. However, the present case, dealt with under the urgent procedure, does not lend itself to an in-depth examination of that question of principle. Given the circumstances of this case, an answer to such a question is not needed in order to provide a helpful answer to the question submitted by the referring court.
82. However, it seems timely to observe that, in such circumstances, and taking into consideration, in particular, that habitual residence is a question of fact, it is necessary that a tangible connection be established with a country other than that where the child is in fact living.
83. Such a connection would have to be based, in the best interests of the child, on concrete and substantial evidence that could thus take precedence over the physical presence of the child. Plainly, there would not be a sufficient connection if there were some prospect that a particular Member State might become, on an indefinite future date, the place where the child would be habitually resident, unless that prospect were reinforced by other tangible links of such a kind that the prerequisite of the child’s physical presence could be set aside.”
- When the matter came before the full court, the question previously put before the Advocate General was slightly rephrased to reflect the fact that the child in question had been born by agreement between the parties in a specific country and had thereafter remained in the care of the mother for a period of months. The full court, therefore, dealt with the matter only briefly saying at paragraph [42-43]:
- “According to that case law, the habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national courts taking into account all the circumstances of facts specific to each individual case… To that end, in addition to the physical presence of a child in a member state, other factors must also make it clear that presence is in not any way temporary or intermittent and that the child’s residence corresponds to the place which reflects such integration in a social and family environment.”
- What is clear from A v A, at both the Court of Appeal and Supreme Court level and in the European jurisprudence, is that, in order to establish habitual residence, there will be an expectation that the child will have been present in the area where it is suggested that he, or she, is habitually resident.
The Court of Appeal therefore had to consider whether those judicial pronouncements on HABITUAL RESIDENCE also applied to ORDINARY RESIDENCE (so the physical presence of the child overrides the principle that a child’s ordinary residence is with the parent)
- In my judgement, the requirement of physical presence must equally apply to a determination of ordinary residence. The majority of the Court of Appeal in A v A was robust in suggesting that presence may be an absolute requirement. The Supreme Court do not specifically deal with the issue, but favour “presence”. The Advocate General in OL v OP addressed the matter head-on, as already quoted at paragraph , although the Advocate General regarded it as “not inconceivable that there may be wholly exceptional circumstances in which physical presence will not be necessary”.
So the child, who had never been in the parents home in County, did not live in County. The child had no ordinary residence, which left City both metaphorically and literally holding the baby.
Good news for LA’s who don’t have a maternity hospital in their area, bad news for those who do. (If in this example, County had done pre-proceedings work, then they would have been the designated authority on the second limb, but as they hadn’t City kept it. So it is not just ‘where was the baby physically before removal?’ but who is the authority under s31(1) (b) as you can’t rely on parents residence to establish ordinary residence with a child removed from hospital that isn’t in the same area.
s31 (1) (b) where the child does not reside in the area of the local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.
[I think it is still arguable that if there were ANY incidents that went to threshold in County, even a continuation of existing concerns, then ANY circumstances could still have caught County. If it isn’t obvious, my sympathies here, on the limited facts that are before me, are with City. Not least because in appealing this decision, County have introduced a brand new headache into what was already far too difficult]
The sooner we implement my Residence/Schmesidence Act the better