H v Stockport Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 1989 |
| Date | 1989 |
| Year | 1989 |
| Court | Family Division |
WARD, J
Access – child in care – application for access by parent – hearing adjourned for five months for guardian ad litem's report – parent applies for interim access – whether court had power to grant interim access.
Care – child in care – access – application for access by parent – hearing adjourned – whether court had power to grant interim access.
In March 1988 two children were committed to the care of the local authority under s 1 of the Children and Young Persons Act 1969. In May 1988 the local authority gave the mother notice terminating access under s 12B of the Child Care Act 1980. The mother immediately applied for an access order under s 12C of the 1980 Act. The matter came before the juvenile court in June 1988. A guardian ad litem was appointed and the hearing was adjourned until November 1988 to give the guardian ad litem time to investigate the circumstances and report to the court. The mother asked the court to make an interim access order but the court refused on the ground that there was no statutory authority to make such an order.
The mother appealed.
Held – dismissing the appeal: The jurisdiction to make orders as to access to children in care was obtained in Part IA (ss 12A to 12G) of the Child Care Act 1980. Those provisions did not contain any reference to interim access orders. That, in itself, might not necessarily prevent a magistrates' court from making an interim access order. Other statutory provisions entitled the court to make such order as to access as it thought fit: see s 9(1) of the Guardianship of Minors Act 1971 and s 8(2) of the Domestic Proceedings and Magistrates' Courts Act 1978. Further, there were express statutory provisions to make interim access orders: see s 2(4)(b) of the Guardianship Act 1973 and s 19(1)(ii) of the 1978 Act. By s 12C of the 1980 Act, however, the court was empowered only to make "an order" which could be subject to such conditions which the court might specify under s 12C(3). Those conditions were in terms which related to the nature of the access granted but did not provide for the making of an interim access order. Therefore, the magistrates were right to find that they had no power to make an interim order for access.
John Bonney for the mother.
Martin Allweis for the local authority.
Lindsey Kushner for the children.
[1990] FCR 65 at 66
JUDGMENT MR JUSTICE WARD.This is an appeal by the mother of two children the elder born on 25 February 1983 and the other born on 8 March 1984.
On 31 March 1988, at the instance of the respondent to the appeal, the Stockport Metropolitan Council, those children were made the subject of care orders in the juvenile court under s 1 of the Children and Young Persons Act 1969.
On 5 May 1988, notice of termination of access was given by the local authority to the mother under s 12B of the Child Care Act 1980 and the mother responded by the issue of complaint against the local authority and asked the Stockport juvenile court to grant her access under s 12C of the Act.
At the same time, she applied to discharge the care order itself and both the complaint and access came before the juvenile court on 29 June 1988. The guardian ad litem was appointed to represent the child, and the guardian was named.
This appeal arises out of the refusal of the juvenile court on 29 June 1988, to make an interim order for access pending the return of the hearing of the complaint which was adjourned until 7 November 1988, to enable the guardian ad litem to report. The application to discharge the care order was adjourned to an earlier date, namely 2 November on the basis that if it was successful, there would be no need to apply for access at all.
Although the appeal is out of time, the delay is satisfactorily explained and I give leave to appeal, notwithstanding the lapse of time.
Access was refused without any...
To continue reading
Request your trial