G v G (Devon County Council Intervening)
| Jurisdiction | England & Wales |
| Judge | MRS. JUSTICE BOOTH,LORD JUSTICE O'CONNOR |
| Judgment Date | 25 January 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0125-3 |
| Docket Number | 89/0053 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 1989 |
[1989] EWCA Civ J0125-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EXETER COUNTY COURT
(HIS HONOUR JUDGE BOOTHMAN)
Royal Courts of Justice,
Lord Justice O'connor
and
Mrs Justice Booth
89/0053
No. CCID 1002/88
MR N. WALL, Q.C. and MR D. TYZACK (instructed by Messrs Dunn & Baker, Exeter) appeared for the Father.
MR H.W. LEWIS (instructed by Messrs Ford Simey & Ford, Exmouth) appeared for the Mother.
MR G. MEREDITH (instructed by the County Solicitor) appeared for the Intervenor.
This appeal raises the question as to which court should exercise its statutory jurisdiction to commit to the care of a local authority a child who is already the subject of a matrimonial custody order made in a divorce county court.
The child with whom the court is concerned is a girl,"J", how aged eight and a half. She is the eldest of three children of the father, the appellant, and his former wife. The younger children have both been adopted outside their natural family and are not involved in these proceedings. The mother and father were married in 1974, but separated in 1983 when the mother filed a petition for divorce in the Exeter County Court. A decree nisi was pronounced on 19th August 1983. On 5th October 1983, in that suit, an order was made vesting custody and care and control of "J" in the mother with reasonable access to the father."J" then lived with the mother and saw her father regularly.
Subsequently, in 1985, it was discovered that the mother's co-habitee had abused "J" in circumstances which required the local authority, the Devon County Council, to act under its statutory jurisdiction to protect her."J" was removed from the mother's home and placed in foster care, a step to which the father agreed as he was not then in a position to offer a home to his daughter. The Devon County Council took proceedings in the Exeter juvenile court under section 1 of the Children and Young Persons Act 1969 and, on 14th October 1985, a care order was made. The father supported the local authority and gave evidence on its behalf. It is common ground between all the parties that at that time no thought was given to the subsisting custody order or to the jurisdiction of the county court to commit "J" to care under section 43 of the Matrimonial Causes Act 1973.
Thereafter, the father had regular access to "J" at first once a month, but later once every six weeks. This continued until December 1987 when the local authority further restricted the father's contact with his daughter and this led him to think that the local authority might be considering her future placement for adoption, a step which would be opposed by both parents. It was in those circumstances that, on 15th March 1988, the father applied to the Exeter County Court for the custody of "J" and, pending the determination of that application, for an order under section 43 of the 1973 Act committing her to the care of the Devon County Council. In the event that such a care order was made, he also asked the county court to define his access to "J" pending the determination of his custody application.
The father's application for "J"'s committal to care under section 43 of the 1973 Act was supported by the mother, but opposed by the County Council. At the hearing on 17th June 1988, Judge Boothman declined to make an order under section 43 on the ground that once a care order has been made under the 1969 Act, another court should not assume a general reviewing power over the local authority. The judge accepted, however, that the county court had jurisdiction to make the custody order sought by the father and if it did so, he would then be able to apply to the juvenile court for the discharge of the care order. The judge directed that if the father made that application, it should come back before him as a matter of urgency.
It is agreed by all counsel and is clearly established law that under the present care order, the local authority is not subject to the direction of any court as to the contact which the father should have with his daughter. It is only when a local authority seeks to terminate arrangements for access to a child in its care or refuses to make such arrangements that a parent may apply to the juvenile court for an access order under the provisions of the Child Care Act 1980. Although the Devon County Council has severely restricted the father's contact with "J", as indeed it has restricted the mother's contact, that amounts only to substituting new arrangements for access in place of existing ones and does not amount to a termination of access so that neither parent can apply for relief under the 1980 Act. But were an order to be made by the county court under section 43 of the Matrimonial Causes Act 1973 then, by virtue of section 43(5), the local authority would be subject to directions given by the court including directions as to access. It is, of course, this position which the father wishes to achieve.
Mr. Wall submits on his behalf that a child who has been the subject of the jurisdiction of the matrimonial court remains subject to that jurisdiction and it is that court which should, if need be, place the child in the care of the local authority. Such a child, he argues, is in a position analogous to that of a child who is a ward of court and in respect of whom no major step may be taken without the authority of the court. He submits, therefore, that the judge was wrong not to exercise his discretion to make an order under section 43 notwithstanding the existence of the juvenile court order since "J" remains and as a child of the family will remain throughout her minority subject to the jurisdiction...
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