F v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE WARD,LORD JUSTICE NEILL |
| Judgment Date | 10 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0217-1 |
| Docket Number | No. 93/0755/F |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 1994 |
[1994] EWCA Civ J0217-1
In the Supreme Court of Judicature
Court of Appeal (Civil Division)
On Appeal from: Leeds County Court
From: His Honour Judge Hutchison QC
Lord Justice Neill
and
Mr. Justice Ward
F (A Minor)
MR. S. BROWN QC and MS J. HAYWARD (MS. C. GRAVES on 17/2/94) (instructed by Messrs. J. Delaney & Co., Leeds) appeared on behalf of the Appellant.
MR. M. HARRISON QC and MR. R. BICKERDIKE (MR. R. BICKERDIKE on 17/2/94) (instructed by The Solicitor to Leeds County Council, Civic Hall, Leeds) appeared on behalf of Leeds County Council.
MS. R. THORNTON (MR. R. BICKERDIKE on 17/2/94) (instructed by Messrs. Blacks, 28 Park Square, Leeds) appeared on behalf of the Guardian Ad Litem.
This appellant was only 17 years old when she gave birth to her daughter L. The tragedy of what the judge rightly regarded as a heartbreaking case is crystallised in the stark fact that the baby was removed from this young mother within hours of her birth. His Honour Judge Hutchinson in Leeds made a Care Order in respect of L and gave leave to the Local Authority to refuse to allow contact between the child and her parent. This is the mother's appeal against those orders.
There are three grounds of appeal which in summary are:-
1. That the learned judge was wrong to regard L's welfare alone as his paramount consideration when he ought also to have taken into account the paramountcy of mother's welfare since at the time she too was a child whose upbringing was in question.
2. That the learned judge failed to make any express finding of fact as to the nature or extent of any harm likely to be suffered by the baby in the future and, if the Section 31 Children Act 1989 “care threshold” had been crossed, he failed to consider whether an interim order should not be made in order to allow a period of assessment of the mother's ability to care for her baby.
3. That the learned judge was wrong to treat the cessation of contact as following automatically from the making of the care order. This was not pursued at the hearing of the appeal, it being conceded here as it was conceded below that in the sad circumstances of this particular case that conclusion was inevitable if a final care order was to be made. Whose welfare is paramount?
The learned judge directed himself as follows:
“I must constantly remind myself that it is the interests of the baby, not the mother, with which I must concern myself.”
That was how he interpreted Section 1(1) of the Children Act 1989 which provides:
“When a court determines any question with respect to … the upbringing of a child … the child's welfare shall be the court's paramount consideration.”
As Birmingham City Council v H (No 2) (1983) 1 FLR 883 had not by then been fully reported, the judgment of the Court of Appeal would seem not to have been referred to him. That case differed from this in two respects:-
1. The mother here was not (or more accurately) was no longer in the care of the Local Authority whereas the mother in Birmingham was and was indeed the subject of the proceedings being heard with those in respect of her son.
2. The issue there concerned contact to the child in care not the making of the care order itself. These may not be distinctions of any great significance. Shortly stated, the Court of Appeal there held not only that a question of contact with the child mother related to the upbringing of the baby, but also that a question of contact with the baby related to the upbringing of the child mother; that it was impossible to give paramount consideration to each; and that accordingly a balance had to be struck between the potential benefit to one and the potential detriment to the other as neither one could enjoy priority over the other.
The Birmingham case went on appeal to the House of Lords and we heard argument in our appeal before their Lordships had expressed their opinions. Counsel elected to submit further written submissions without oral argument and we are grateful to them for the help they have given us.
The House of Lords resolved the problem by an analysis of the relevant section, which in that case was section 34 of the Children Act 1989, which deals with “parental contact” etc with children in care. In considering the issue under section 34(3) on an application by certain categories of persons (including parents) the court “may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.” Lord Slynn of Hadley said ( Birmingham City Council v H (1994) 2 WLR 31 at 37):
“For this purpose,“the child” is the child in care in respect of whom an order is sought by one of the four categories of person. That child is the subject matter of the application. The question to be determined relates to that child's upbringing and it is that child's welfare which must be the court's paramount consideration. The fact that the parent is also a child does not mean that both parent's and child's welfare is paramount and that each has to be balanced against the other. Under subsection (3) the question to be determined does not relate to the applicant's upbringing even if the applicant is a child. …
In this application (under subsection (2)) the child in care may apply and, if that child is the applicant, it is that child's welfare which is directly involved and which is paramount even if the other “named person” is also a child. The welfare of any other “named person”, even if a child, is not also paramount so as to require a balancing exercise to be carried out.
It may be doubted whether a parent was ever intended to be included within the category of “child” in section 34(2) even if the parent is also a child … By subsection (4) the court may make an order, if the child in care or the authority makes an application, authorising the authority to refuse to allow contact between the child in care and a person belonging to one of the four categories of person mentioned above who are named in the order. Thus the court may authorise refusal to allow contact between the child in care and the parent. The child in respect of whose upbringing a question is to be determined by the court is the son or daughter of the parent named in the order and it is that child's welfare which is to be paramount. The fact that the parent is also a child does not require the balancing exercise to be carried out since no question is to be determined as to the parent's upbringing.”
The correct approach, therefore, is to identify which child is “the subject of the application” and which child it is whose welfare is “directly involved.”
The wording of section 31 makes the answer perfectly plain. Section 31 provides that:
“(1) On the application of any local authority or authorised person, the court may make an order - (a) placing the child with respect to whom the application is made in the care of a designated local authority…”
There is only one child with respect to whom the application is being made and that is the baby not the child mother. The baby is directly involved as the subject of the application and is the only child to be named in the order. It follows that no question relating to the mother's upbringing arises and so the court is not required by section 1(1) to treat the child mother's welfare as the paramount consideration. Section 31(2) serves to emphasise that conclusion. That the focus of the enquiry is on the manner in which the parent is bringing up the child is implicit in section 31(2) in the requirement that the court has to be satisfied that the child concerned (the baby) is suffering, or is likely to suffer, significant harm and that the harm, or likelihood of harm, is attributable to the care given to the child (the baby) or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him. “Upbringing” is defined by section 105(1) to include “the care of the child” and it is only the baby and not the child mother whose care - and therefore whose upbringing - give rise to a question for the court to determine. His Honour Judge Hutchinson was right to treat the interests of the baby and not the mother as the only interests with which he had to concern himself. Thus the first ground of appeal fails.
Significant harm? The salient features of the unhappy history of this case can be quite shortly stated. S, the mother, was 17-and-a-half at the time of the trial, having been born on 5th August 1975. She herself had been taken into care as a baby and at 8 months old had been placed with foster parents who...
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Re S (Minors) (Proceedings: Conflicting interests)
...[1977] AC 602; [1977] 2 WLR 79; [1977] 1 All ER 45. F (A Minor) (Contact: Children in Care), Re[1994] 2 FCR 1354. F v Leeds City Council[1994] 2 FCR 428. G (Children's Cases: Instruction of Experts), Re[1994] 2 FCR H (A Minor) (Parental Contact), Re[1993] 1 FCR 904. M (Minors) (Care Proceed......