Berkshire County Council v D-P
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE WOOLF |
| Judgment Date | 19 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0319-1 |
| Docket Number | 86/0265 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 1986 |
[1986] EWCA Civ J0319-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Stephen Brown
Lord Justice Woolf
86/0265
MR. N. A. MEDAWAR Q.C. and MISS B. I. SLOMNICKA (instructed by D. C. H. Williams, Esq., Shire Hall, Reading) appeared for the Appellants.
MR. J. B. S. TOWNEND Q.C. and MR. C. A. CRITCHLOW (instructed by Messrs. Rowberry Morris & Co., Reading) appeared for the First Respondent.
MR. PAUL REID (instructed by Messrs. Blandy & Blandy, Reading) appeared for the Second Respondents.
I shall ask Lord Justice Stephen Brown to deliver the first judgment in this matter.
This is an appeal from a decision of the Divisional Court of the Family Division of 4 February of this year. On that occasion the Divisional Court allowed an appeal by way of case stated from a decision of the Justices at Reading on 1 August 1985 whereby they made a care order in respect of a little girl Victoria in favour of the Berkshire County Council.
The facts giving rise to these proceedings are sad but may be shortly stated. They concern a little girl called Victoria, who was born prematurely on 12 March 1985. She was born to a mother who was addicted to heroin or a substitute and, as a result, she was born in a condition where she herself was addicted to that drug and was suffering serious withdrawal symptoms. She was taken to a special care baby unit at the Royal Berkshire Hospital, her health having deteriorated after her birth. She spent some six weeks in hospital and, in the interim, the local authority, the Berkshire County Council, placed the child on the abuse register. They called a case conference to consider the circumstances of this little baby and they decided to seek a care order from the Juvenile Court under the provision of the Children and Young Persons Act of 1969.
Those proceedings were commenced on 25 April and subsequently successive interim care orders were made. It was arranged that the child should be separately represented by a guardian ad litem, who was appointed from a panel kept by the Juvenile Court. On 19 May 1985 the little girl was discharged from intensive care at the hospital to foster parents.
It is part of the chronology of events that the mother, who was unmarried at the time of the birth, married the father on 21 June 1985. The Reading Juvenile Court commenced the hearing of the application by the Berkshire County Council for a care order on 23 July and that hearing continued until it was completed on 1 August when the Juvenile Court made a care order in favour of the Berkshire County Council.
The guardian ad litem appealed by way of case stated from the decision of the Justices to the Divisional Court of the Family Division. The Family Division, as I have indicated, allowed that appeal and the County Council, the first respondent in the proceedings before the Divisional Court, is the appellant before this court.
The facts found by the Justices and stated in their case were as follows:
"(a) the child…was born to (the mother)…on the 12th March, 1985 at the Royal Berkshire Hospital, Reading.
(b) at the time of her birth the child was suffering from symptoms caused by withdrawal from narcotics.
(c) the mother had been a registered drug addict since 1982 and had been taking drugs for approximately 10 years.
(d) the mother continued to take drugs, both by oral means and by injection, from the time when she knew that she was pregnant to the time when the child was born.
(e) during the pregnancy the mother took drugs in excess of those which were prescribed for her by a registered medical practitioner.
(f) the mother knew that by taking drugs whilst pregnant she could be causing damage to her child.
(g) the child was kept in intensive care at hospital for several weeks immediately following the birth. A place of safety order was obtained by Berkshire Social Services on the 23rd April, 1985 and successive interim care orders were in force from the 15th May, 1985 to the date of hearing.
(h) the child had not been in the care or control of the mother or the father…since her birth.
(i) the medical condition in which the child was born was a direct result of deliberate and excessive taking of drugs by the mother during pregnancy.
(j) the mother, and the father too, continued to be addicted to drugs and remained so on the final day of the hearing of this case."
The Justices accepted that the particular circumstances which gave rise to the physical condition of the baby could not recur after the child had been born, but in paragraph 7(b) of the case they stated:
"However, we took the view that a child's development is a continuing process which encompasses the past and the present and we considered that events in the past life of this child, even during the time when it was a foetus in the womb, were relevant. For this reason we considered we were entitled to have regard to the mother's abuse of her own bodily health during pregnancy when deciding whether the condition in Section 1(2)(a) of the Children and Young Persons Act 1969 was proved in respect of the child born of that pregnancy.
We were satisfied that this child's proper development was being avoidably prevented or neglected or her health was being avoidably impaired or neglected or she was being ill-treated. In so deciding we accepted that we should not look at the future development of the child.
We further concluded that this child was in need of care or control which she was unlikely to receive unless an order was made and we made a Care Order to the Respondent in respect of the child."
The appeal to the Divisional Court raised the construction and application of section 1(2) of the Children and Young Persons Act of 1969. Section 1(1) provides:
"Any local authority, constable or authorised person who reasonably believes that there are grounds for making an order under this section in respect of a child or young person may, subject to section 2(3) and (8) of this Act, bring him before a juvenile court.
(2) If the court before which a child or young person is brought under this section is of opinion that any of the following conditions is satisfied with respect to him, that is to say—
(a) his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or …and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, then, subject to the following provisions of this section and sections 2 and 3 of this Act, the court may if it thinks fit make such an order."
The submissions made to the Divisional Court of the Family Division, which they accepted and upheld, concerned the application and construction of section 1(2)(a). The submission which received approval was that, in this particular case, the only evidence before the Justices as to the cause of the condition of the child related to events which had taken place before its birth; that there had been no opportunity for the mother to care for the child since the birth and accordingly no conduct on her part which could be said to have avoidably impaired the health or prevented the proper development of the child. Accordingly, applying the strict wording of section 1(2)(a) in its present tense, the condition was not satisfied which is the primary condition to the application of the section which enables a court to proceed to make a care order.
It is not in dispute, nor was it in dispute before the Divisional Court, that the child is in need of care or control. Submissions were made to the effect that this was a case in which the court should consider wardship proceedings as being the appropriate procedure. The Divisional Court came to the conclusion that the submissions made on behalf of the guardian ad litem and the mother, who was given leave to intervene before the Divisional Court, were made out and, accordingly, allowed the appeal.
Before this court Mr. Medawar for the local authority submits that the Divisional Court fell into error. In his submission, it looked too narrowly at the application of section 1(2)(a) and in effect overlooked the complete findings of the Justices, including the continuing addiction of the parents. Mr. Medawar submitted that, in this case, the facts found by the Justices supported their conclusion that the proper development of the child was being prevented and her health was being impaired and that this was avoidable. He submitted that this was attributable to conduct which was the deliberate conduct of the mother and, looking at the situation as a continuing state of affairs, it was appropriate to take into consideration the matters which had in fact taken place whilst the child was still in her mother's womb. He submits that the decision of the Divisional Court has in effect divided the process of the child's development artificially: that is to say...
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