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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Northampton County Council v London Borough of Islington [1999] EWCA Civ 3031 (21 July 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/3031.html Cite as: [1999] EWCA Civ 3031, [2000] 2 WLR 193, [2000] BLGR 125, [2000] LGR 125, [1999] 3 FCR 385, [1999] Fam Law 687, [2001] Fam 364, [1999] 2 FLR 881

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE HALL)

		Royal Courts of Justice Strand London WC2
		21 July 1999

LORD JUSTICE THORPE:

This is the first of a number of first instance decisions on the proper construction of sections 31(8) and 105(6) of the Children Act 1989 to reach the Court of Appeal. Before approaching the difficult points of construction argued before us I will record the relevant history.

KC originated from London and his wife H from Northampton. They had three children, N, H and J. This appeal is almost exclusively concerned with N who was born on 10th April 1987 The separation of the parents took place in 1996 and thereafter N's care fluctuated between his father in London and his mother in Northampton. There were considerable doubts as to the ability of either to protect N from harm. When in his father's care it seems that he was exposed to sexual abuse by his first cousin in 1996. In the same year his mother commenced cohabitation with a Schedule 1 offender with whom she had had previous association. In October 1996 the mother had secured N's return to Northampton by a ruse, however his future was intended to be secured by an order made in the Northampton County Court on 23rd January 1997. The order was made by consent. On an undertaking by the father to use his best endeavours to ensure that N was not left alone in the company of his first cousin, a residence order was made to his father and a contact order to his mother. Pursuant to that order he returned to live with his father in London. Although this is not to be found from the order itself, one of the foundations of the consent order was that he and his father should not live in the flat of his paternal aunt and his first cousin in Islington. However, as Judge Hall subsequently found, between January and July 1997 he lived with his father in the home of his aunt and first cousin in Islington, regularly attending school in the borough. Furthermore the father applied for housing accommodation in Islington which would have enabled them to live separate from the abusive household. Islington Social Services were first involved with a referral on 4th February 1997 when concerns were expressed at the risk of sexual abuse. The father told the investigating social workers that he was sharing a home with his sister out of necessity but was observing the terms of his undertaking. There were further referrals in March and April and in April and May both Northampton Social Services and the mother wrote to Islington to express concern. On 3rd July the father was interviewed by Islington social workers and the police when he asserted that the abuser had moved elsewhere in order that he and N could remain with his sister. On 10th July N was assaulted by his father and aunt for having disclosed his cousin's abuse and on the following day Islington social workers moved N to the security of a children's home in Croydon. On 16th July the father wrote to the mother from Islington saying that he no longer wished to care for N and a fortnight later he wrote again to say that N had been taken into care. Islington rejected the mother's offer to care for N and on 3rd September commenced care proceedings. The application was issued in the Inner London Family Proceedings Court but because of the involvement of two local authorities, one outside the Inner London catchment area, the case was transferred to the Family Division and investigated by Holman J. He expressed considerable concern that Northampton had taken no steps to protect N's sisters, still living with their mother and a Schedule 1 offender. It seems that in consequence Northampton issued care proceedings in respect of the two younger children and Islington's application in respect of N was transferred to the Northampton County Court to be consolidated with the proceedings relating to his sisters.

The consolidated applications came before His Honour Judge Hall on 18th November 1998. In the fifteen months since N had been taken into care he had been accommodated throughout at the children's home in Croydon. The application for a care order in respect of N was not opposed. Neither parent was in a position to do so. Since N's reception into care the father had refused to reveal his home circumstances beyond saying that he was living in London with a new girlfriend. Islington and Northampton had agreed a care plan which Islington would present to the court. Paragraph 4 was in these terms:

"It is the proposal of this local authority that N remain at Ingleside Childrens Home in Croydon on an interim basis until a long term fostering placement is found for him. N will need to be placed in an alternative long term family in Northampton."

Accordingly at the hearing Judge Hall made the care order in respect of N and an interim care order in respect of his sisters. The local authority designated in the interim care orders was Northampton. There was no other contender. However the local authority to be designated in the care order gave rise to the only contested issue in the case. Where there is more than one candidate for designation contests are common since the consequence of designation is generally labour and expense to the selected local authority. The provision determining designation is section 31(8) of the Children Act 1989, which is in these terms:

"(8) The local authority designated in a care order must be-

(a) the authority within whose 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."

There is one subsection of the interpretation section of direct application to section 31(8). It is section 105(6) in these terms:

"(6) 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 or an order under section 7(7)(b) of the Children and Young Persons Act 1969, or

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

The proper construction of section 31(8) and its application to the facts of this case was argued out before Judge Hall by Miss Knowles for Islington and Mr Bennett for Northampton. The judge made it perfectly plain that he intended to make a valiant judicial effort to designate Northampton. That is a very understandable leaning. After all Islington had placed N south of London which hardly facilitated contact with his maternal family. His long term need was for a Northampton foster parent placement. Both his sisters were to be in the care of Northampton. Thus practicality and the commendable desire to promote N's welfare pointed to the same designation. But the question is did the subsection permit that outcome? Judge Hall concluded that it did. His essential reasoning is as follows:

"In all these cases the question is a matter of fact and degree and I am entitled, in my judgment, to take into account all the circumstances of the case. It is conceded that in this area the word 'ordinary' means the same as 'habitual' but, having examined all the facts of this case, the only quality that I can ascribe to this residence is 'temporary'. It was in defiance of a court undertaking and liable to be brought to an end at any moment. Despite the fact that it lasted five and a half months, I do not find that it was either ordinary or habitual. By the fact of the residence order and the move to London N in fact lost his ordinary residence in Northampton, and therefore section 31(8)(a) does not apply and I have to look at section 31(8)(b)."

He therefore proceeded to consider that subsection noting that both counsel agreed that the word 'ordinarily' should be read into the subsection immediately preceding the word 'reside'. His choice of Northampton was reasoned thus:

"The primary cause of the reception into care and the primary cause of these proceedings is what happened in Islington. The secondary cause is the nature of the accommodation and the nature of the upbringing which the mother has offered and could offer N in Northampton. Am I allowed to take by law anything else into account? It seems to me that at this stage it is perfectly proper for me to look at the welfare check list. That is what section 1 tells me to do. The London Borough of Islington and its administration have let N down. He was placed miles away from his siblings, much further than was at all sensible. If Islington was the designated authority within the care order, it would have to delegate its powers to Northampton, and Northampton would send the bill at the end of the year. I am told from the Bar that it works and I am prepared to accept that it can work. But, on the past history of this case, the shorter I can make the chain of command, I am certain the better it will be for N."

He closed his judgment with an apology to the Bar 'for not having cited at length or at all from the authorities', which were with the file.

Before considering the validity of the judge's conclusion and reasons and before recording the submission of Mr Bennett and Mrs Knowles in this court it is necessary to trace the evolution of judicial opinion in the Family Division on the construction of these undoubtedly difficult subsections. As Holman J said in North Yorkshire County Council v Wiltshire County Council (judgment handed down 28th May 1999):

"The interrelation and construction of these two short and deceptively simple subsections have given rise to much expensive legal debate and a divergence of opinion amongst High Court judges at first instance as to their meaning and effect."

The debate opens with the decision of Bracewell J in Re BC (Minor) (Care Order: Appropriate Local Authority) [1995] 3 FCR 598. She held that the disregard provisions of section 105(6) required the court to determine the child's ordinary residence under section 31(8)(a) 'by reference to where he was living before being placed in interim care'. This has been subsequently described as the stop the clock approach and has been much criticised for producing absurdity. The child living with both parents in area 'A' is taken into care and accommodated in area 'B'. During the period of accommodation the home in area 'A' is vacated, one parent moving to area 'C' and the other to area 'D'. A subsequent designation of area 'A' is unrealistic because it ignores the reality that all family connection with area 'A' has been severed in the interim.

So Wilson J rejected that construction in Gateshead Metropolitan Borough Council v L and Another [1996] 2 FLR 179. He explained his decision thus:

"I greatly hesitate to disagree with the views of a judge whose knowledge of this Act is much more profound than mine. But I do not accept that the effect of section 105(6) is to require the court to disregard matters other than the location and other circumstances of a child's placement during the specified period. The disregard is of the 'period in which he lives ......' , namely the period of his life, in the specified places. It is in this respect analogous to the disregard of any temporary absence of a child from home required by section 72(1A) of the Adoption Act 1976.

The question is to identify the authority within whose area B 'is ordinarily resident'. The verb is in the present tense; contrast, for example, the reference in section 29(7) of the 1989 Act to the child 'who was (immediately before [the local authority] began to look after him) ordinarily resident within ......'. If Brent's argument were correct, I would have to give an astonishing answer to that question, namely that B is ordinarily resident in Gateshead even though his family severed its connections with that borough almost two years ago. Presumably I would have to give the same answer if B's parents had died since 1992. In submitting that Re BC was wrongly decided, Mr Hayward Smith QC, on behalf of B, says that it is easy to envisage other sets of facts where the results would be still more absurd and most unlikely to have been intended by Parliament."

Of course, as is generally the case in statutory construction, to remove some perceived difficulties is only to create others in their stead. If Wilson J's construction of the disregard provision is confirmed the list of relevant developments and circumstances within the wider family may be extensive and thus an unnecessary complication of what should be a simple mechanism for designation. Furthermore area 'A' may have acquired extensive experience and understanding of the case and it would surely strike either area 'C' or area 'D' as bizarre to be designated and so fixed with professional responsibility for a child who is a total stranger to their area and to their records. However the approach of Wilson J has undoubtedly gained ascendancy. Sumner J in Newham London Borough Council v I and Brent London Borough Council [1997] 2 FCR 629 did not refer to the approach of Bracewell J but accepted the proposition formulated by Wilson J that the disregard provision did not preclude taking account of the fact that during the period of the interim care order the mother had established an ordinary residence in Brent. The variation introduced by Sumner J was the conclusion that the children had lost their ordinary residence in Newham when either they or their mother left the borough.

A much fuller authority is the decision of Mr James Munby QC sitting as a deputy judge of the Division in Re P (Care Proceedings: Designated Authority) [1998] 1 FLR 80. In that judgment he considered at length a number of issues to which I will come in due course. It was not necessary for him to consider the disregard provision, since on the facts of the case it was of no application. However in an obiter passage he clearly doubted whether he would follow the approach of Wilson J. Another case in which the disregard provision was not in direct issue was the case of Re C (Care Order: Appropriate Local Authority) [1997] 1 FLR 544 in which Wall J wisely decided to abstain on the divergence of judicial opinion. In the latest case of North Yorkshire County Council v Wiltshire County Council Holman J was not in that fortunate position. However he had the advantage of argument from Mr Hayward Smith QC who had appeared for the guardian in the Gateshead case when Wilson J requested the assistance of a leader, and of Mr Munby QC, who had, of course, grappled with most of the issues in Re P. In a characteristically full and careful judgment Holman J rejected the restrictive construction favoured by Bracewell J and followed Wilson J, rejecting in an obiter passage the variation suggested by Sumner J.

All these authorities were of course available to counsel at the hearing before this court and they both accepted the judgment of Wilson J that it was necessary to construe section 31(8)(b) as if it also referred to ordinary residence. But Mr Bennett supported the approach adopted by Bracewell J to the construction of the disregard provision. Plainly N was ordinarily resident in Islington before he was accommodated. There was no clear evidence as to his father's movements thereafter. Even had his father moved to some other London borough, that was an irrelevance since the words of the disregard focus on both a period in the child's life and the location of the place in which he lives. That only disregarded, N must be held in November 1998 to be continuing to be ordinarily resident in the area from which he was removed. That must lead to the inevitable designation of Islington under section 31(8)(a). Alternatively Mr Bennett submits that if by November 1998 N was not ordinarily resident in Islington he was certainly not ordinarily resident in Northampton, for that possibility was plainly excluded by the terms of the order of 23rd January 1997. Therefore the designation fell to be made under section 31(8)(b). In making a designation under that subsection the judge was not entitled to exercise some general discretionary review. He was limited to determining that area in which arose the circumstances leading to the making of the care order. On the facts of this case that was plainly Islington.

Mrs Knowles advanced the contrary submissions. The father had not pursued his application for housing since N's accommodation and there is no evidence that he remained in the Islington area thereafter. By November 1998 N was not ordinarily resident in any area since his residence in Croydon was put out of account by the disregard provision. Clearly he could not be ordinarily resident in Islington on that date since neither he nor his father had maintained a home within the area. Since she could not assert an ordinary residence in Northampton for N in November 1998, she supported the judge's conclusion that it was for him to make a discretionary choice. She submitted that the judge's reasons for choosing Northampton were plainly both sensible and valid.

Although I have every sympathy with the judge's determination to do his best for a child who had been ill served within the care system and although I fully appreciate the practical advantages of the Northampton designation I am in no doubt that that conclusion is wrong in law. I have considered whether that conclusion can be reasoned without due consideration of any of the difficult issues that have divided the Family Division. However I conclude that this case does require a decision on the following difficult issues:

a. What is the proper construction of subsections 31(8)(a) and (b) in conjunction? Is it legitimate to construe the opening phrase of subsection (b) as though it read 'where the child does not ordinarily reside ......'?

b. What is the proper construction of the disregard section? Is the judgment of Wilson J to be preferred to that of Bracewell J?

c. Where the case falls for decision under section 31(8)(b) what is the ambit of the judicial task? Has the judge the wide discretion which emerges from the decisions in the reported cases?

For I am first of the opinion that at the date of trial N was not ordinarily resident within either Islington or Northampton. In order to make good that conclusion I must necessarily express my view on the proper construction of subsections (a) and (b) in conjunction as well as my view on the proper construction of the disregard provision. Second I conclude that in determining designation under subsection (b) the judge was constrained to designate Islington and not Northampton. That conclusion rests on the proper construction of what subsection (b) requires of the court.

Let me begin with the proper construction of section 38(6). Wilson J demonstrated why he concluded that Parliament did not mean what it appeared to have said. Unless the court inserted the word 'ordinarily' into the first phrase of section 31(8)(b) there would be cases in which the child in question fell into neither subsection (a) nor subsection (b). As he put it:

"Take B himself. He is ordinarily resident nowhere. But is he resident in the area of a local authority? The disregard provided in section 105(6) has no bearing upon this question because it relates only to ordinary residence. Incarceration does not preclude simple 'residence' - indeed it secures it - and counsel do not seek to dissuade me from the view that B must be taken for the time being to be resident in the area of Birmingham City Council, where he has lived in a secure unit for almost four months."

I agree this logic and sympathise with the attempt to find a legitimate construction to avoid that result. But is the solution adopted by Wilson J legitimate? He first acknowledged the contrary view of Singer J expressed in Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711. He then gave three reasons for his conclusion that the omission of the word ordinarily from sub paragraph (b) was a Parliamentary slip. His first was drawn from the genesis of the subsection. Its legislative predecessor was section 20(2) of the Children and Young Persons Act 1969 which, in very similar language expressed the test for designation but the residence in both subsection (a) and subsection (b) was expressed to be habitual. Then Clause 12(10) of the draft 'Children Bill' annexed to the Law Commission Report No 172 had 'reside' without adjectival qualification in both subsections (a) and (b). In relation to this genesis he said:

"The draft bill did not define or qualify the references to residence. It seems clear to me that, when Parliament resolved to bring the provision into line with the previous law, it inserted 'ordinarily' into (a) but forgot to do so into (b)."

He then turned to section 37(5) of the Act where, as in section 31(8), in subsection (a) the draftsman wrote 'ordinarily resident' but in subsection (b) wrote 'reside'. However section 116 of the Courts and Legal Services Act 1990 amended section 37(5) to write 'ordinarily' equally into subsection (b). Of that Wilson J said:

"Counsel contends that it is inconceivable that, in correcting a perceived error in section 37(5), Parliament would have accidentally failed to make any necessary correction of the analogous section 31(8). I disagree."

Having considered authorities warning judges against reading words into an Act of Parliament he concluded:

"Nevertheless for the reasons already given, I am of the firm opinion that Parliament's omission of the word ordinarily in section 38(8)(b) is not only accidental but inflicts a heavy defeat upon the intention of the Act by removing children resident but not ordinarily resident in the area of an authority from what purport to be and are intended to be comprehensive provisions for the making and designation of care orders."

This court has carried out some research into the genesis of section 31(8) and also into the subsequent amendment of section 37(5) without unearthing anything of relevance to the dilemma.

So in the end it seems to me that the principle justification for the judicial rewriting of section 31(8)(b) is to ensure that it provides a mechanism for designation in all and not just the vast majority of cases. That is a powerful consideration. Although I am doubtful of the reasoning of Wilson J I agree with him that section 31(8) must be construed to provide a test for all cases and I cannot at the moment see a better solution than that which he devised.

Turning to the second question, the attraction of the construction favoured by Bracewell J is its simplicity. The ordinary residence immediately preceding the commencement of the period of disregard is deemed to continue uninterrupted. The court is relieved from what may be a contentious and disputed investigation of what other circumstances have changed within the period of disregard. Any construction of section 105(6) can be said to produce anomalous results. We should not be over impressed by anomaly arguments where the court's function is simply to determine which authority is to be designated in the care order. I am convinced that section 31(8) was never intended to be a gateway to extensive judicial investigation of a number of relevant facts and circumstances as the prelude to the exercise of some discretionary choice. It was surely intended to be a simple test to enable the court to make a rapid designation of the authority upon which is to fall the administrative, professional and financial responsibility for implementing the care order and the care plan. Where the child has connections with more than one area ordinary residence determines on the basis that almost every child will have an ordinary residence, if not a presence, in some local authority area. In the rare case where a child lacks an ordinary residence in a local authority area the court designates the area in which occurred the events that carried the application over the section 31 threshold.

On that approach I lean towards Bracewell J's inclination to hold that the area of ordinary residence immediately prior to the commencement of the stay to be disregarded should be notionally extended throughout that stay. I would not say that developments affecting the family during the period to be disregarded cannot in any case be considered. But I would say that such cases should be exceptional.

I turn now to the third question. The Family Division judges have construed subsection (b) to vest in them a broad discretion to designate any local authority area that might loosely be said to be in the frame. Wilson J in Gateshead put it thus:

"B does not ordinarily reside in the area of an authority and so I must designate the authority 'within whose area any circumstances arose in consequence of which the order is being made'. The words 'any circumstances arose ....' are very wide. Parliament might have chosen narrower words, such as 'the circumstances substantially arose ....', which would often have given rise to a difficult inquiry. As they stand, the words seem to me to recognise that the circumstances which cause a care order to be made in respect of a child of B's age will often be multifarious and will have arisen at numerous different stages of his life. I consider that, in principle, where (b) applies, more than one local authority may well qualify for designation and that in that event the court can choose which to designate."

Mr Munby QC in Re P accepted the approach of Wilson J and indeed extended the field of choice when he said:

"The 'circumstances .... in consequence of which' a care order is made, as those words are used in section 31(8)(b), are not confined to, though they will always include, the circumstances of that period of the child's own life which is relevant to the 'threshold' inquiry under section 31(2) and circumstances in the child's life which 'arose' in the places where he lived during that period. In an appropriate case, the 'circumstances .... in consequence of which' a care order is made will include any circumstances, whenever and wherever they arose, whether before or after the child was born and whether or not arising in any place at which the child has ever lived, which go to the inability of the child's parent to give him that quality of care which is referred to in section 31(2)(b)(i). Furthermore, the 'circumstances .... in consequence of which' a care order is made will embrace the actions of any local authority, not otherwise brought within the ambit of section 31(8)(b), which itself institutes or carries on care proceedings or which becomes in some other way sufficiently involved in care proceedings for it properly to be said that a care order has been made, wholly or in part, 'in consequence of the actions of that authority'."

I have reached the conclusion that this liberality only invites unnecessarily extensive issues. The more multifarious the circumstances, the more local authorities there will be in the frame with the opportunity for and likelihood of, unnecessary contests. The circumstances to which the judge should have regard are the primary circumstances that carry the case over the section 31 threshold. That may be a positive act or series of acts, such as sexual or physical abuse. If there has been extensive abuse there will usually be an ultimate or an outstanding episode that triggered local authority intervention. The judge will have no difficulty in locating that event. In other cases the foundation for the care order may be negative conduct such as neglect, consistently poor parenting or a failure to provide emotional support. Even in chronic cases without any acute episode it will usually be simple enough for the judge to discern the place or, if more than one, the principal place at which the failure occurred. In my opinion the judge's function is to carry out a rapid and not over sophisticated review of the history to make a purely factual determination. It is a question of fact and not of discretion.

In summary my view of these three interacting subsections is that they should be given that construction that achieves the result for which I conclude they were designed: that is a simple mechanism to determine the question of administration. If that involves a degree of artificiality and the import of legal fiction any misgivings can be met by recognising the limited purpose and effect of the court's function. After all it must be assumed that all local authorities are equally competent, professional and committed in the discharge of responsibilities cast upon them by the making of a care order. Over the course of years the swings and roundabouts principle is likely to even out any seeming disadvantage to an individual authority by designation in a particular case. These subsections are not about child protection or the promotion of child welfare. They are to be read as a simple test, to be operated by the court in what should be the unlikely event of dispute, to determine which local authority is to be responsible for the care plan and its implementation.

I turn to apply that approach to the present case. The most difficult question for me is whether Mr Bennett should succeed in his primary submission that even on 18th November 1998 N was ordinarily resident in Islington. The judge found as a fact that until 23rd January 1997 N was ordinarily resident in Northampton. That was not necessarily a secure finding but it has not been challenged in this court. Having found that between January and July 1997 he and his father were living in Islington he inevitably found that 'by the fact of the residence order and the move to London N in fact lost his ordinary residence in Northampton'. Five months of settled residence supplemented by clear plans for a continuing future in Islington were plainly enough to constitute the acquisition of an ordinary residence in that area. The judge escaped that conclusion by highlighting the insecurity of an arrangement whereby N and his cousin were under the same roof. The judge said in a passage preceding that which I have already cited:

"If the facts of that domestic situation had been exposed, in my judgment, there would have been several potential consequences: (a) committal for contempt, (b) criminal proceedings and (c) Children Act proceedings either by the mother or by the local authority."

My first comment is that the judge has somewhat elevated the vulnerability of the arrangement. The undertaking was not to reside at an address other than his sister's but only to 'use his best endeavours to ensure that N is not left alone in the company of TH at anytime'. The fact that the arrangement was highly irresponsible and perhaps enough in itself to disqualify the father from future care, the fact is that even now there is no unequivocal evidence that N was sexually abused by his cousin between January and July 1997 and it was the beating that N received from his father and aunt that triggered the reception into care. I am in no doubt that as a matter of law N was ordinarily resident in Islington immediately preceding his accommodation. But was the effect of section 105(6) effective to ensure that he still held that ordinary residence fifteen months later? To answer the question in the affirmative undoubtedly imports a fair degree of artificiality. After all the ordinary residence of a child of N's age is a dependant one and in this case that means dependant upon the ordinary residence of either his mother or father, the only available carers outside the care system. The mother's consent to the father becoming the long term carer in January 1997 was in part a recognition of her disqualification by settled cohabitation with a Schedule 1 offender. After his performance between January and July it would seem quite unrealistic to regard the father as capable of resuming care. Islington's application for a care order in respect of N was not contested by either parent. So there is a high degree of artificiality in attaching a continuing dependant ordinary residence to either parent. I would be less concerned by the lack of evidence as to the father's whereabouts over the ensuing fifteen months. Islington were perhaps understandably unable to prove the negative but such evidence as exists suggests that the father remained throughout in London. It is therefore having regard to the conduct of his parents and the circumstances of the family that I conclude that by 18th November 1998 N was not ordinarily resident in either Islington or Northampton.

However if N was not ordinarily resident in Islington by 18th November 1998 then very plainly the circumstances in consequence of which the care order was made on that date arose in Islington. Judge Hall himself recognised as much when he said:

"The primary cause of the reception into care and the primary cause of these proceedings is what happened in Islington. The secondary cause is the nature of the accommodation and the nature of the upbringing which the mother has offered and could offer N in Northampton."

However Judge Hall and I part company over what follows in the passage which I have cited

Whilst I have every sympathy with the judge's approach, it is not one either contemplated or permitted by subsection (b). Section 1 applies to the determination of issues relating to the upbringing of children. It does not apply to settling disputes as to designation between reluctant local authorities. Equally the judge's estimation of the performance of Islington between July 1997 and November 1998 was irrelevant to the subsection (b) exercise. Nor did subsection (b) permit the judge to have regard to administrative arrangements that might be made between local authorities post designation. Once he had correctly found the primary cause of the reception into care in my opinion he had no alternative but to designate Islington.

As a footnote it is just worth recording that the time that this case has taken to come to appeal has not been entirely fallow. After its designation Northampton commendably endeavoured to implement paragraph 4 of Islington's care plan. They have located a suitable foster parent family in the county and N's arrival has only been delayed by delay in the departure from that family of a child whose place N will fill. Mr Bennett tells us that N's move will hopefully be accomplished next month.

I would allow this appeal and substitute Islington for Northampton as the designated local authority in N's care order.

LORD JUSTICE PILL:

I agree and wish to express agreement in terms with Thorpe LJ's conclusion that the relevant subsections were designed to provide a simple mechanism by which to determine the question of administration.

LORD JUSTICE BELDAM:

I also agree.

ORDER: Appeal allowed.