E (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Rimer,Mrs Justice Baron |
| Judgment Date | 22 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1773 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2012/2347 |
| Date | 22 November 2012 |
[2012] EWCA Civ 1773
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY DISTRICT REGISTRY
(HIS HONOUR JUDGE BELLAMY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Rimer
and
Mrs Justice Baron
Case No: B4/2012/2347
Mr Martin Downs (instructed by Goldkorn Mathias Gentle) appeared on behalf of the Appellant (acting pro bono)
Ms Lorna Meyer QC & Elizabeth McGrath instructed by and for the Respondent Local Authority
Elizabeth Walker (instructed by Cocks Lloyd Solicitors) appeared on behalf of the Children's Guardian
This appeal raises a short point of construction. It is this. Where a minor is accommodated voluntarily under Section 20 of the Children Act 1989, is the court prevented by Section 100 of the same Act from making the child a ward of court? The question arises from the judgment of HHJ Bellamy sitting in a difficult and exceptional case on its facts in the Coventry County Court as a deputy judge of the division.
The judge had to make a choice between no order, a care order, as sought by the local authority, and a wardship order. In his admirably clear judgment he considered the wardship option in paragraph 193 when he said:
"Another option considered is to make [E] a ward of court. S.100(3) prevents the local authority from making [E] a ward of court without the leave of the court. The parents do not need the leave of the court to issue wardship proceedings. However, if they were to issue wardship proceedings they would face the not inconsiderable obstacle of s.100(2) which provides that,
'No court shall exercise the High Court's inherent jurisdiction with respect to children —
(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;
(b) so as to require a child to be accommodated by or on behalf of a local authority."
In the following paragraphs he considered reported cases, namely Re K (Children) [2012] EWHC, a decision of Hedley J at first instance, and the decision of this court in the case of Re F Mental Health Act Guardianship [2000] 1 FLR 192. He took up the considerations of merit in paragraph 205 when he said:
"Against that background, and for the same reasons that Hedley J gave in Re K (Children), I believe that in this case wardship has more to offer than a care order. It would make both the local authority and the parents accountable to the court. It would enable the court to oblige the local authority to keep the court and the parents informed about its progress in arranging therapy and about the progress of therapy once begun. It would enable the court to ensure that the parents receive the information proposed under the care plan. Were it necessary to do so, it would enable the court to regulate the parents' contact with [E], with Ferngate and with [E's] school. Were it not for s.100(2)(b) I would have no hesitation in making [E] a ward of court.
206. However, with regret, and notwithstanding the examples of Re K and Re F, I am not persuaded that I have the jurisdiction to use wardship in the circumstances of this case. I have already ruled out the option of making no order. I am left, therefore, with no alternative but to make a final care order. I do not consider that to be the best outcome for [E] but I am satisfied that it is a better outcome than making no order."
Not surprisingly, given the views expressed by the judge in those paragraphs, he gave permission to appeal. The appellants were for a considerable time in person in the preparation of their appeal and, considering the very narrow scope of the appeal, we are fortunate indeed that very recently Mr Downs accepted the task of presenting their case on a pro bono basis. His addendum skeleton argument, which is of very recent preparation, puts his essential submission in the first four paragraphs.
Having set out the terms of Section 100(2), which I have already cited, he submits that it cannot be the case that that Section rendered it impossible for an order in wardship to coexist with accommodation of the child pursuant to Section 20. Were it otherwise, he says, then subsections (8) and (9) of Section 20 would not make specific provision for the circumstance. This is seen in subsection (9)(b), which refers to:
"a person who by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children."
He also refers to the practice direction which is numbered 12(b) and which bears the heading "Inherent jurisdiction (including wardship) proceedings", and it is stated to supplement FPR Part 12, Chapter 5. Within it, in fact by paragraph 1.3, the Practice Direction...
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