G v Kirklees Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1992 |
| Court | Family Division |
BOOTH, J
Care proceedings – application for leave to be joined as a party – relative wishing to obtain a residence or contact order – principles to be applied.
Child case – application for leave to be joined as a party – principles to be applied.
The mother, who was aged 15, gave birth to a child in November 1991. As the mother was homeless the local authority placed her and the baby with the mother's adult sister ("the aunt") as a foster parent. The mother and child stayed with the aunt from November 1991 to February 1992 when the mother left with the baby and went to another foster placement. When that foster placement broke down the local authority started care proceedings in a family proceedings court. The aunt applied to the court for leave to be joined as a party so she could seek a residence or contact order. The magistrates rejected her application and based their reasons on what they considered to be the best interests of the child.
The aunt appealed.
Held – dismissing the appeal: The magistrates had applied the wrong test. On an application for leave to apply for a section 8 order under the Children Act 1989 the child's welfare was not the paramount consideration. In this case the aunt sought to be joined to existing proceedings, but it was implicit in her application that she wished to apply for a section 8 order. Therefore, the criteria set out in s 10(9) of the 1989 Act were applicable. Further, the person seeking leave must establish a case that was reasonably likely to succeed. In the present case there was a continuing breach between the mother and the aunt and other members of her family. The local authority and the guardian ad litem both opposed placement with the aunt as there were concerns about her family and lifestyle. In the circumstances there was no purpose in joining the aunt as a party to the proceedings since she would have no reasonable prospect of success in obtaining the relief she sought.
AppealAppeal from Huddersfield family proceedings court.
Statutory provisions referred to:Children Act 1989, ss 1, 8 and 10(9).
Family Proceedings Courts (Children Act 1989) Rules 1991, rr 3 and 7.
Cases referred to:JR v Merton London Borough[1992] 2 FCR 174; sub nom Re A (Residence Order: Leave to Apply) [1992] Fam 182; [1992] 3 All ER 872.
F v S (Adoption: Ward) [1973] Fam 203; [1973] 1 All ER 733; 137 JP 301.
Mark Gargan for the appellant (aunt).
Eleanor Hamilton for the local authority.
John Winterler for the guardian ad litem.
Stephen Bedeau for the mother.
MRS JUSTICE BOOTH.On 18 June 1992 in the Huddersfield family proceedings court the appellant applied under r 7(2) of the Family Proceedings Courts (Children Act 1989) Rules 1991 to be joined as a party in proceedings brought under Part IV of the Children Act 1989 in relation to her nephew. The application was refused and the appellant now appeals.
The material facts are not in dispute. The child was born on 3 November 1991 to the appellant's sister (the mother) as a result of a rape perpetrated on her. The mother is now only aged 15 and after a most unsettled childhood is herself in the care of the local authority, the Kirklees Metropolitan Council. After the child's birth the mother appears to have been homeless and arrangements were made by the local authority as a matter of emergency for the appellant to be approved as a foster parent for the mother to enable the mother with the child to live in her home. The appellant is a married woman with two young children and the mother and the child stayed with her from 14 November 1991 until 13 February 1992 when the mother left and went, with the child, to another foster placement. On 25 February 1992 the appellant applied to the High Court for leave to seek a residence or a contact order in respect of the child. The appellant believed that by then the child had been separated from the mother although in fact he had not. The mother opposed the appellant's application which was refused.
The local authority were anxious to keep the child with the mother if this were feasible and they placed them together in another foster home. On 5 May 1992 that placement, too, broke down. It was in those circumstances that the local...
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