C v Berkshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 1987 |
| Date | 1987 |
| Year | 1987 |
| Court | Family Division |
HEILBRON AND BUTLER-SLOSS, JJ
Care – children in care of local authority under order of juvenile court – mother allowed access – local authority deciding that rehabilitation of children to mother impossible – local authority giving notice terminating access – mother applying to juvenile court for access – local authority commencing freeing for adoption proceedings in county court – whether juvenile court should adjourn mother's application for access until after the hearing of the freeing for adoption hearing.
In April 1985 two children, a boy then aged 2 and a girl then aged 4 months, were taken into care. In August 1985 care orders were made on the ground set out in s 1(2)(a) of the Children and Young Persons Act 1969. The children were placed with foster parents. The mother was allowed access to the children. There was no evidence as to the extent of that access nor as to its effect upon the children. The local authority, being of opinion that rehabilitation of the children was not possible and that the children should be placed for adoption, gave formal notice on 16 May 1986 to the mother under s 12B of the Child Care Act 1980 terminating access. On 29 July 1986 the local authority's adoption and fostering panel approved the decision to apply to free both children for adoption. On 11 Sepember 1986 the mother applied under s 12C(1) of the 1980 Act for access to the children. The matter first came before the juvenile court on 23 September when a guardian ad litem was appointed under s 12F(3) of the 1980 Act and the hearing adjourned until 17 November for the guardian ad litem to investigate the circumstances and prepare a report for the court. On 20 October, the local authority commenced proceedings in a county court for an order to free the children for adoption. When the matter came before the juvenile court again on 17 November, the guardian ad litem had prepared a report. The solicitor for the local authority applied for the hearing to be adjourned pending the hearing in the county court for an order to free the children for adoption. He informed the magistrates that a hearing for directions in the county court was imminent, having been fixed for 17 December 1986. The solicitor instructed by the guardian ad litem to represent the children supported the local authority's application to adjourn. Counsel for the mother opposed the adjournment and submitted that the magistrates should hear and adjudicate upon the mother's application for access. After hearing these submissions, but without hearing any evidence or reading the guardian ad litem's report, the magistrates were of opinion that they would be unable to come to a proper decision as to access until the appropriate tribunal had decided whether the local authority's view that rehabilitation of the children with the mother was not possible and that adoption was the proper alternative. Therefore, as the hearing of the application in the county court to free the children for
[1988] FCR 161 at 162
adoption was imminent they adjourned the mother's application for access sine die.
The mother appealed.
Held – dismissing the appeal: The magistrates were entitled, in the exercise of their discretion, to adjourn the hearing of the mother's application for access, provided they exercised their discretion judicially. It was not necessary for the magistrates to hear evidence provided their decision to adjourn was based on sufficient and relevant information. In this case, the magistrates had formed their decision to adjourn on the basis that the question of access would inevitably be an issue in the application to free for adoption and that the hearing of that application was imminent. In the freeing for adoption proceedings the Judge would have to consider whether the mother was withholding her consent unreasonably and it would be necessary for the Judge to decide whether or not the mother had a future with the children and whether or not access was in the children's best interests. Where, as in this case, the local authority was not acting in a way that was manipulative and causing unnecessary delay, and where the freeing for adoption application was imminent, the magistrates' court was not precluded from adjourning a parent's application for access until after that hearing. In the circumstances, therefore, the magistrates' decision to adjourn pending the hearing of the freeing for adoption application was a proper exercise of their discretion.
Per curiam: It was important to avoid delay when dealing with matters concerning young children and it was desirable, where possible, for one tribunal to hear all matters affecting the children.
Alyson Halkyard for the mother.
Barbara Slomnicka for the local authority.
Andrew Tidbury for the children.
MRS JUSTICE HEILBRON.This is an appeal brought under the terms of s 12C(5) of the Child Care Act 1980, regarding two children, a boy born on 27 July 1983, now aged three years and four months, and a girl born on 25 December 1984, who will be two years old on Christmas Day. The appellant is their mother.
On 22 April 1985, an interim care order was made by the justices in care proceedings and there followed on 19 August 1985, a full care order based on the ground contained in s 1(2)(a) of the Children and Young Persons Act 1969, namely that the child's proper development is being avoidably prevented or neglected, or his or her health is being avoidably impaired or neglected.
Certain access has taken place at the foster home where the children resided, details of which are not before the court, but on 16 April 1986 the local authority decided to terminate access, and on 16 May formal notice of termination was given to the appellant by the local authority, under s 12B of the Child Care Act 1980. There was one further period of supervised access to the mother on 19 May 1986.
On 29 July the local authority's fostering and adoption panel, approved the decision for an application to be made to free both children for adoption.
Concern as to the exercise of the local authority powers with regard to termination of access, led to the enactment of ss 12A to 12G in the Child Care Act 1980, added, by way of amendment, by s 6 of and sch 1 to the Health and Social Services and Social Security Adjudications Act 1983. Those provisions apply, inter alia, to children
[1988] FCR 161 at 163
in care by virtue of a care order under the Children and Young Persons Act 1969. In such cases the local authority now serves a notice of termination (or...
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