Hereford and Worcester County Council v JAH
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,MR JUSTICE BUSH |
| Judgment Date | 29 April 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0429-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/1094 |
| Date | 29 April 1985 |
[1985] EWCA Civ J0429-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF THE PRESIDENT OF THE FAMILY DIVISION
Royal Courts of Justice
Lord Justice Kerr
Mr Justice Bush
85/1094
MR I.J.C. PEDDIE, instructed by Messrs Sharpe, Pritchard & Co. (Agents for J.W. Renney Esq. of Worcester), appeared for the Appellant (County Council).
MR TIMOTHY TOWNSHEND, instructed by Messrs Cozens-Hardy & Jewson (Norwich), appeared for the Respondent (Mother).
MRS M.J.B. DRAYCOTT, instructed by Messrs Alexander & Co. (Worcester), appeared for the Guardian ad Litem.
This is an appeal from a judgment given by Sir John Arnold P. on 30th January 1985. It came before him under the recent legislation amending the Child Care Act in the new Part IA, headed "Access to Children in Care", running from section 12A to 12G. In particular it arises under section 12B, headed "Termination of Access", which gives power to local authorities to terminate rights of access by a parent, guardian or custodian, but at the same time it gives the right to such persons to apply to the juvenile court to set aside that termination and grant rights of access.
The present case is undoubtedly unfortunate, and we found the matter far from easy. Before referring to the facts in detail I should briefly explain how it arises. The mother of the boy, Ashley, had access formally terminated by the local authority, the Hereford and Worcester County Council. She then applied to the local juvenile court sitting in Worcester on 14th November 1984 to set aside the decision that she should have no access to Ashley. The members of the juvenile court decided, by a majority, to grant her access once a month, thereby disagreeing with the decision of the local authority. The majority consisted of Mrs M.J.J. Harington, who was (and presumably still is) the chairman of the Worcester City Juvenile Court, and a Mr T.C. Sarker, one of the magistrates. The third magistrate, Mrs Catherine Lang Lane, did not agree with that decision.
The local authority thereupon appealed under section 12C(5) which provides that "An appeal shall lie to the High Court against any decision of a juvenile court under this Part of this Act." We have sought to ascertain what the rules are which cover that new procedure. So far as we can discover, it would appear from a note in the supplement to the Annual Practice to Order 90, rule 16, that appeals under section 12C(5) are governed by that provision. The powers of the court in that regard are similar to any appeals to the High Court under Order 55, and in particular Order 55, rule 7.
The learned President, having heard counsel for the local authority, Mr Peddie, and for the guardian ad litem, Mrs Jean Draycott, in support of the appeal against the majority decision, and Mr Timothy Townshend on behalf of the mother seeking to uphold the majority decision, concluded that the reasons given by the majority could not be supported. However, having so concluded (and there is no dispute that he was entirely right in arriving at that decision), he did not allow the appeal. He decided that the matter should be remitted to the juvenile court, and went further by expressing the view that there was no objection to the same three members of the juvenile court hearing the matter on what would in effect be a fresh trial.
Counsel for the local authority, supported by counsel for the guardian ad litem, now submits on this appeal that the President erred in what he did on the ground that, having formed the conclusion which he did, he should simply have allowed the appeal and that there should not be a further hearing. On the other hand, counsel for the mother, while not seeking at this stage to defend the majority decision of the justices, submits that the President was entitled to reach the decision that there should be a fresh hearing.
In essence, therefore the issue before this court is first, and mainly, whether the decision to order a fresh hearing instead of allowing the appeal was wrong in principle in some respect so that we should, as is submitted on behalf of the local authority and the guardian ad litem, substitute our decision for that of the majority of the juvenile court and also for that of the President who took the view that there should be a remission.
I must now briefly refer to the history of this matter, as to which there is relatively little dispute, I do so as sparingly as possible, because I have reached the conclusion that, although—with respect—I would not myself have remitted this matter, I do not consider that there are sufficient grounds for reversing the decision in favour of a fresh hearing. It is therefore undesirable that I should say more than is necessary.
Ashley was born on 24th September 1977 when his mother was 18 and unmarried; his father is unknown and has played no part in these proceedings. For some time the boy was in voluntary care and then living with his grandparents between October 1978 and February 1980, and was visited on rare occasions by the mother. In July 1980 he was placed in voluntary care at the request of the mother and was then placed with foster parents. On 18th September 1980 the local authority passed a parental rights resolution and shortly thereafter there was another visit by the mother. In December 1980 the last access visit by the mother took place. Ashley was then moved to his present foster home in Worcester, a move which appears on the whole to have been successful. I say that because the evidence shows that to some extent Ashley is a disturbed child, not easy to control, and that in itself raises problems as to what is in his best interests.
In December 1980 the mother moved to Norwich with a Mr Graveling with whom she is at present still living, so that there are obvious difficulties about access to the boy in Worcester. In October 1981 she applied for a revocation of the parental rights resolution, of which she says she had not previously heard. Whatever may be the truth about that, her application was dismissed by the juvenile court in Norwich.
In November 1982 a further request for access was refused, and it was then on 5th April 1984 that she made a formal request for access pursuant to the provisions of the Child Care Act to which I have already referred. That was refused by the local authority on 9th July 1984 and they then gave formal notice of termination of access.
This is how the present proceedings arise, and I have already referred to the hearing before the Worcester City Juvenile Court on 14th November 1984 when access on the basis of once a month was ordered by the majority, beginning in January 1985. The court refused an application for a stay of access pending appeal, but that was granted by Mr Justice Ewbank on 19th December 1984. The matter then came before the President on 30th January 1985.
He delivered a long and, if I may with great respect say so, exemplary judgment on what he saw as the defects in the balancing exercise carried out by the majority of the justices who decided in favour of access. I must read the last three paragraphs of the reasons for their conclusion which he cites in his judgment:
"Having seen and heard the parties and most carefully and closely observing the applicant's demeanour and sincerity" (that is the mother) "and also having studied the Guardian ad Litem's Report, we were of the opinion that the application for access should be allowed.
"We felt the interests of the child were of paramount importance, and that the natural mother, particularly in this case, had a right...
To continue reading
Request your trial
-
F v Metropolitan Borough of Wirral DC and Another
...of the child's welfare. For my part, I think that the President's analysis in Hereford and Worcester County Council v. J.A.H. [1985] F.L.R. 530 places the emphasis perhaps too much upon the necessity of finding a positive benefit to the child from paternal access. As a general proposition a......
-
Re W (A Minor) (Residence Order)
...the right is overborne by considerations of the child's welfare. For my part, I think that the President's analysis in Hereford and Worcester County Council v JAH, [1985] FLR 530, places the emphasis perhaps too much upon the necessity of finding a positive benefit to the child from parent......
-
Re KD (A Minor) (Access: Principles)
...proper person to come into contact with the child. But that is not the test. Mrs. Bradley refers me to the decision of Hereford and Worcester County Council v. Jarre, a decision reported in [1985] Family Law Reports, at p. 530, the decision being the decision of Sir John Arnold, President o......
-
M Petitioner v M Respondent
...to be followed." Emphasis mine 12 On the specific issue of access, this position was expounded by Sir John Arnold P in Hereford and Worcester County Council v J.A.H2 where he stated: " The function of a court trying a contested access application must always be to put the interests of the c......