R v Birmingham Juvenile Court ex parte G and Others (Minors) and R (A Minor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE DILLON,LORD JUSTICE RUSSELL |
| Judgment Date | 12 May 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0512-3 |
| Docket Number | 89/0502 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 1989 |
[1989] EWCA Civ J0512-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(THE PRESIDENT, sitting as an additional Judge of the Queen's Bench Division)
Royal Courts of Justice.
Lord Justice Purchas
Lord Justice Dillon
and
Lord Justice Russell
89/0502
MISS E. PLATT, Q.C. and MISS M. HODGSON (instructed by Mr. A. Walker, the Clerk to the Justices) appeared on behalf of the Birmingham Juvenile Court (Appellants).
MR. J. POSNANSKY (instructed by Messrs. Sharpe Pritchard, London agents for Mr. G.W.T. Pitt, Birmingham Local Authority) appeared on behalf of the Local Authority (Appellants).
MISS D. SEDDON (instructed By Messrs. Plunkett Lohmus of Birmingham) appeared on behalf of Mrs. "G" (Respondent).
MISS B. SLONINICKA (instructed By Messrs. Bean Macdonald of Birmingham) appeared on behalf of Mr. "G" (Respondent).
MRS. H. GRINDROD, Q.C. and MISS J. HALL (instructed by Messrs. Penningtons Ward Bowie, London agents for Messrs. Young & Lee of Birmingham) appeared on behalf of the Guardian ad litem.
The court has before it two appeals against orders made by Sir Stephen Brown, P., on the 6th May, 1988 for judicial review of two decisions made by the Birmingham Juvenile Court ("the juvenile court") on the 10th August and the 14th September, 1987. The orders for judicial review were made on the application of Alison Powell, the guardian ad litem, acting for three minors, members of the "G" family in the one appeal, and a minor of the "R" family in the other appeal, and quashed the orders made on the 10th August and 14th September, 1987 respectively and ordered each of the cases to be reconsidered by a differently constituted tribunal. Both the juvenile court and the Birmingham City Council ("the council") are appellants in each of the appeals which raise identical points of law which are of importance in the interplay of duties under what has been described as "the statutory code" (see A. v. Liverpool City Council [1982] A.C. 363).
The background to the applications can be shortly stated for the purpose of considering these appeals. The "G" family consisted of three little girls, aged 4 years and 5 years, two of whom were sisters and the third was a cousin. The family lived together with their mothers, who were sisters, in a flat rented by one of them. The circumstances in which the children were living and the immoral conduct of at least one of the mothers gave rise to considerable concern. In May 1987 it was noticed that two of the girls had vaginal discharges. On examination it was shown that one child, aged 4, had gonorrhoea and that the other, her sister aged 5, had a slight infection. The third child had previously received treatment for gonococcal gonorrhoea which, it is thought, she had caught from her mother as a result of poor hygiene. On the 3rd June, 1987 the council issued proceedings in the juvenile court under section 1(2) of the Children and Young Persons Act 1969 ("the 1969 Act").
The "R" family consisted of a little boy, now just under 3 years of age, who lived with his two half-sisters in a family home. At the end of January 1987 the council obtained place of safety orders in respect of all three children following the complaint of an assault by the father upon one of the half-sisters. The council initiated an application for a care order under the 1969 Act in the juvenile court in February 1987.
On the making of the place of safety orders Damien and one half-sister, Samantha, were committed to the care of a foster mother while Claire, the victim of the assault, was placed at Selly Oak Hospital. On the 5th February, 1987, on the application of the council, the juvenile court made interim care orders under section 2(10) of the 1969 Act in respect of all three members of the "R" family. On the 5th March, on further application by the council, the juvenile court continued the interim care orders and made orders under sections 32 (A) and (B) of the 1969 Act, as amended, as a result of which Alison Powell was appointed guardian ad litem. On the 2nd April Mrs. R., the mother, indicated that she would oppose the application for an interim care order when the matter returned to the court on the 29th April, 1987. On this occasion the juvenile court made an order in respect of Claire but adjourned the applications for interim care orders for Samantha and Damien. On the 10th August, 1987 the council applied to withdraw their application for a care order in respect of Damien. The order that had been made in respect of Claire continued.
The progress of the matter in relation to the "G" family followed a similar course. Orders under section 32(A) and (B), as a result of which Alison Powell was again appointed guardian ad litem, were made on the 3rd June, 1987. On the 6th July, 1987, however, without consulting the guardian ad litem, the council returned the "G" children to the day-to-day care of their mothers who had remained living in the same flat. On the 27th July, 1987 the solicitor for the council announced that he intended to seek leave to withdraw the proceedings in respect of one of the children (Barbara). The guardian ad litem expressed concern since she had not completed her enquiries. In the event, the juvenile court continued the interim care orders in the case of two of the children (Nicola and Caroline) and adjourned the application in the case of Barbara. In August Barbara developed a further attack of vaginal infection.
On the 4th September, 1987 the guardian ad litem produced her report relating to the "G" children in which she recommended that supervision orders should be continued under the provisions of the 1969 Act. Amongst the reasons for this was to ensure regular medical examination of the three girls in the "G" family all of whom had suffered, or were exposed to, reinfection of gonorrhoea or other venereal disease. The full hearing for the care orders in respect of the "G" children took place on the 14th September, 1987.
The proceedings, for the purposes of this appeal, followed a similar course on each of the two occasions when the application under the 1969 Act came before the juvenile court. The guardian ad litem had produced her report in the case of the "R" family dated the 2nd July, 1987. In that report she recommended that there should be a supervision order in relation to Damien. The risk which the guardian ad litem saw was that without the supervision order Damien would not attend the nursery and his continued presence in the home, where he had come to occupy an unacceptably large share of his mother's time and interest, would jeopardise not only Claire's return from care but the onward progress of the family which in the meanwhile had acquired a new baby. This report was available at the hearing on the 10th August, 1987 when the application for the full care order was before the juvenile court.
The recommendations from the welfare workers employed by the council in relation to the "R" family were that Claire should not return immediately home; that the family should still receive support and counselling from the welfare services, including the NSPCC, and that in respect of Damian and his half-sister Samantha the mother had given no real cause for concern in her capabilities in caring for her children. It was considered that her voluntary co-operation plus the father's support for Damian to attend nursery had been satisfactory. Although the care order for Claire was recommended to be made a full care order, the continuing supervision under a care order in relation to Damian was not thought necessary. This evidence, of course, conflicted with the views formed by the guardian ad litem. The council decided that in the case of Damien they should not seek a full care order.
A very similar position had been reached before the date fixed for the hearing of the full care order in the case of the "G" family. In a report prepared for the hearing in the juvenile court on the 14th September, which was signed by the three social workers involved with the "G" family, the council had the following conclusions before them. After referring to the undoubted medical evidence that Caroline had suffered from a sexually transmitted disease, the most likely cause being sexual abuse, and that Barbara had suffered from gonoccocal conjunctivitis resulting from poor hygiene, which enabled transmission from gonorrhoea suffered by her mother as a result of her sexual activities, the report continued as follows:
"However, following our investigations our conclusions are as follows:-
The children have never mentioned inappropriate contact with any person, other than 'Mr. D'. The children's view was supported by video sessions with anatomically correct dolls. In our view we have no reason not to believe what the children have said.
Information has been given to Birmingham Social Services Department indicating that a child formally resident in the same house as 'Mr. D' may have also been sexually abused. This has also been investigated by the Social Services Department under separate child abuse procedures. Details of this allegation were passed to the police on 26.6.87 for them to investigate.
Subsequently the police have informed Social Services Department that 'Mr. D' was arrested. However, the police have insufficient evidence to bring charges against him and he has been released.
At the case conference held on 8.9.87 it was decided that no order be sought in respect of Nicola and Caroline 'G' and Barbara 'G' on the basis that the abuse had taken...
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