The Court of Appeal (CoA) had to determine the habitual residence of a newborn child to determine which council was responsible for the care of a baby born prematurely.
Background:
G was born prematurely to parents with a history of substance abuse, domestic abuse and neglect. The mother has two older children born into previous relationships and a long history of engagement with Cheshire’s Children’s Services Department.
In late 2023, the parents were served with a notice of eviction and moved to a caravan in a holiday park in Calderdale, West Yorkshire. Most of the pre-birth social work planning had however been conducted in Cheshire.
G was born on the 12th of July 2024 and the Cheshire Council issued care proceedings on the same day. G spent 5 days in a hospital in Manchester, then a further 22 days in a hospital in Calderdale, where his mother cared for him daily. G was then moved to a residential unit situated between Cheshire and Calderdale for assessment with his mother under Section 38(6) of the Children Act 1989 and spent a further 15 days there.
Subsequently, an order was made designating the appellant local authority (LA) as Calderdale Metropolitan Borough Council in respect of the interim care order concerning the child. Calderdale appealed the decision, arguing that G did not acquire ordinary residence in Calderdale and that the Judge erred in law and fact.
Decision:
The CoA rejected the appeal and agreed that G was now ordinarily resident in Calderdale through his mother having become resident there. The Court was not convinced by the argument that the child did not necessarily, or automatically, acquire an ordinary residence by dependency on the mother on the basis that the child was in ‘disregarded accommodation’ under Section 105(6) Children Act 1989. The Judge noted that this provision does not negate the dependency of the child’s residence on the parents, as the provision does not apply to the mother. This was especially the case, as G was never outside of disregarded accommodations, including hospitals.
The Court reaffirmed that a child’s ordinary residence typically depends on that of the parent, especially when the case involves newborns or very young children. G’s hospital stay in Calderdale supported the mother's integration there and the Judge was entitled to find the mother was ordinarily resident in Calderdale.
However, the Court recognised that there was a legal evolution from the strict dependency rule in various case law. The Court recognised that If Calderdale succeeded in its argument, this could lead to “artificial, even absurd outcomes”.
Implications:
This detailed judgement offers good guidance on the habitual residence of a newborn. It is clear that a newborn and young children’s habitual residence is acquired by dependency and follows that of the mother, although this is not an absolute rule. The fact that a child has only spent time in hospitals which are considered disregarded accommodations under Section 105(6) of the Children Act 1989 does not necessarily obviate the facts surrounding dependency.
The Court criticised the litigation and reiterated the longstanding judicial guidance that disputes over designation should be avoided, wherever possible. The LA most closely connected to the child’s current living situation is responsible for providing the necessary services to ensure the child’s needs are effectively met.