D v D (Child Case: Powers of Court)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Court of Appeal (Civil Division) |
BALCOMBE AND LEGGATT, L JJ AND SIR FRANCIS PURCHAS
Child case – jurisdiction – county court – no power to make orders restraining local authority or police from exercising statutory powers in respect of children.
Child case – proceedings involving issue between parents being heard by court – allegation of physical abuse of child by one parent referred to local authority by other parent – appropriate course for local authority to adopt.
Jurisdiction – county court – no power to make orders restraining local authority or police from exercising statutory powers in respect of children.
Jurisdiction – court seised of cross-applications by parents – parents for residence orders – one parent alleging physical abuse of child by other parent and involving local authority – whether county court had jurisdiction to make orders restraining police and local authority from investigating circumstances – power of court to make prohibited steps order.
Local authority – child case – issue between parents being heard by court – allegation of physical abuse – matter referred to local authority by parent – proper course for local authority to adopt in such circumstances.
Procedure – discovery – non-party – child case – no power to order discovery by non-party – proper procedure to issue subpoena duces tecum or witness summons.
The parents were married in 1983 and had three children: a boy aged nine and two girls aged six and five. The parents separated in October 1992 and were subsequently divorced. When they separated, the children remained with the mother in the matrimonial home. The father went to live with his mother in a flat which, although self-contained, formed part of the house which included the matrimonial home. The children had frequent contact with the father, but the parents' relationship was bitter.
In January 1993 the mother applied under s 10 of the Children Act 1989 for a residence order in respect of the children and for contact between the children and the father to be strictly defined. A welfare report filed on 21 April 1993 recommended that the children should reside with the mother and that the father should have the maximum contact which was practical.
Over the weekend 24/25 April 1993 the children stayed with the father. During that visit the boy told the father that he had been smacked, whacked to the floor, and kicked by the mother. The boy also alleged that the mother had slapped the two girls. On 24 April the father took the boy to his GP. The boy told the doctor that he had been kicked by the
mother and, on examination, the doctor found a 5 x 2 cm bruise on the side of the boy's chest. The father informed the police and the police contacted the social services department of the local authority. That department arranged for the boy to be examined by a consultant paediatrician whose findings as to the bruise were the same as those of the GP and to whom the boy repeated his allegation that the mother had kicked him.
Because of the boy's allegation that the mother had slapped the girls, a police officer and a social worker visited the mother. They told her that the girls should be medically examined and that until that had been done she should remain separate from them. As a result, the mother left the former matrimonial home and the children stayed with the father. Subsequent examination of the two girls revealed nothing significant.
The mother applied for directions, including an expedited hearing of her application. On 29 April 1993 the father issued an application for a residence order in respect of the three children. On the same date the social services department of the local authority sent a letter to the mother's solicitors in which it was stated that the authority and the police had found no evidence to give sufficient concern to deny either parent contact or residence with the two girls but that they recommended that the boy stay with the father until a case conference on 5 May 1993.
The mother's application for directions came before the Judge on 30 April 1993. At that hearing the Judge was strongly critical of the actions of the father and of the way the local authority and the police had acted. His order of 30 April 1993 included the following directions:
in para 2: the substantive hearing date to be 28 July, reserved to himself;
in para 3: the children to live with the mother pending that hearing; and, in para 4, the father to have contact;
in para 5: neither the local authority nor the police to take any further step in relation to the welfare of the children without referring to the court;
in para 6: all documents in the possession of the police and local authority concerning investigations made with reference to the family to be disclosed to the court and the parents' solicitors.
In a letter dated 6 May 1993 the local authority wrote to the court indicating, inter alia, their intention to undertake an assessment of the whole family under s 47 of the 1989 Act. As a result, the Judge arranged for a further hearing on 17 May 1993. The local authority were represented at that hearing but did not seek to be made party to the proceedings. After the Judge had heard submissions from counsel he confirmed his order of 30 April with minor modifications. He held that it was contrary to the welfare of the children for them to be subjected to two parallel investigations, one by the court in private proceedings and one by the local authority pursuant to s 47 of the 1989 Act.
The father, the local authority, and the Chief Constable appealed on the ground that the orders directed to the police and local authority under paras 5 and 6 of the order of 30 April as amended on 17 May 1993 were made without jurisdiction. The father's appeal also asked that the hearing of the application should be before another Judge.
Held – (1) As the Judge was sitting in a county court, his jurisdiction was wholly statutory. The only statute under which it was suggested that a court could make orders restraining a local authority or the police exercising their statutory powers in relation to children was the Children Act 1989. There was no power under that Act for a Judge in a county court to make such orders. Consequently, in this respect the appeal would be allowed and para 5 of the Judge's order would be discharged.
(2) However, although the court could not grant injunctions against a local authority or the police in relation to their statutory powers in relation to children, the court could, by making a prohibited steps order under s 8 of the 1989 Act, restrain a person with
parental responsibility for a child from exercising that responsibility in a way which could be detrimental to the child's welfare. An example of such a detrimental exercise of parental responsibility would be permitting the child to be exposed to unnecessary interviews or examinations.
Per Balcombe, LJ: It was doubtful whether a Judge of the High Court had an inherent jurisdiction to restrain a local authority or the police from exercising their statutory or common law powers: see Nottinghamshire County Council v P[1994] 1 FCR 624. Even if the power did exist, its exercise would be wholly exceptional.
(3) There was no statutory provision in the 1989 Act which enabled the court to make orders for discovery by a non-party. If a party wished to adduce in evidence documents in the possession of a non-party, the ordinary law applied and the procedure was subpoena duces tecum in the High Court or by witness summons in a county court. Even in children cases there was no general power in the court to garner documentary evidence of its own motion. On this issue the appeal would be allowed and para 6 of the Judge's order would be discharged.
(4) In view of the way the Judge had expressed himself as to the father's conduct without having heard oral evidence from either the father or the mother, the father could reasonably take the view that the Judge had already formed views hostile to him on an incomplete conspectus of the evidence. Therefore, the appeal would be allowed to the extent of discharging para 2 of the order of 30 April 1993 which reserved the hearing to the Judge and directing that the hearing be by another Judge.
(5) The Judge had ordered that the children should reside with the mother pending the substantive hearing. There were no grounds to interfere with the exercise of the Judge's discretion on the issue of interim residence.
Principles of G v G (Minors: Custody Appeal) [1985] 1 WLR 647 applied.
Per Sir Francis Purchas: (1) Apart from causing one of their staff to send the letter of 29 April to the court recommending that the boy should remain with the father, the local authority had taken no steps to acknowledge the court's jurisdiction nor to assist it in its task of dealing with the civil law dispute with which it was obviously concerned. By the letter from the social worker the local authority were attempting to persuade the Judge to take a course which it would not have been open to them to have sought by formal application to the court.
(2) This case had demonstrated the great importance of all agencies involved with carrying out their respective functions under the provisions of the 1989 Act to act in reasonable and co-operative manner. The Act aimed to incorporate the best of the wardshipjurisdiction within the statutory framework without any of the perceived disadvantages of judicial monitoring of administrative decisions. Likewise the Act did not give powers tothe local authority to interrupt or frustrate the on-going investigations which the court was empowered to make when seised of a private dispute. In the present case, as the Judge had held, it would have been contrary to the interests of the children's welfare for them to have been subjected to two parallel investigations, one by the court and one by the local authority pursuant to s 47 of the 1989 Act. Further, on the facts in this case, it was a...
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