R v Gwynedd County Council ex parte B
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE WOOLF,LORD JUSTICE STUART-SMITH |
| Judgment Date | 27 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0327-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0323 |
| Date | 27 March 1991 |
[1991] EWCA Civ J0327-10
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)
(MR. JUSTICE EASTHAM)
Royal Courts of Justice.
Lord Justice Balcombe
Lord Justice Woolf
Lord Justice Stuart-Smith
91/0323
MISS KATE THIRWALL (instructed by Messrs. Bridge McFarland of Lincoln) appeared on behalf of the Appellant (the foster parents).
MR. ROGER McCARTHY (instructed by Messrs. Sharpe Pritchard, London agents for Mr. A. Ellis Hughes, County Secretary and Solicitor) appeared on behalf of the First Respondent (the Council).
THE HON. I.J. PEDDIE (instructed by Messrs. Clement Jones of Gwynedd) appeared on behalf of the Second Respondent (Mrs. J., the natural mother).
On the afternoon of Friday, 8th March, 1991 we heard an appeal from an order made earlier the same day by Mr. Justice Eastham dismissing the appellant's application for judicial review. We dismissed the appeal, with no order as to costs, saying that we would give our reasons later. This we now do.
Carol Ann Jones was born on 12th January 1977. She was the child of the respondent, Mercedes Perez Raman Jones ("the mother") and her husband, who died on 16th November 1981. Unfortunately Carol suffered from Down's Syndrome and she also had a systolic heart murmur. Her parents were unable to look after Carol and on 7th February 1977, when she was three and a half weeks old, she was placed voluntarily in the care of the respondent Gwynedd County Council ("the council"), the local authority for that part of North Wales in which Carol and. her parents were living, under section 1 of the Children Act 1948. The council in turn placed Carol with the appellants, Mr. and Mrs. Barton, as foster parents. At the time Mr. and Mrs. Barton were also living in North Wales with their son, born in 1974. In 1978 they adopted a six-month old boy born in January of that year. In 1979 the Bartons with their family (including Carol) moved to Lincoln and in January 1981 a daughter was born to them.
On 23rd January 1981 the council assumed the parental rights and duties with respect to Carol under section 2 of the Children Act 1948 as amended by the Children Act 1975: now section 3 of the Child Care Act 1980, of which the relevant parts came into force on 1st April 1981. Under the transitional provisions of the 1980 Act Carol was thenceforward deemed to be in the care of the council under section 2 of the 1980 Act—see section 89(1) of, and paragraph 1 of Schedule 4 to, the 1980 Act.
When Carol's natural father died in November 1981 he was buried in North Wales.
The mother visited Carol twice a year while she was living in Lincoln. The council also consulted the mother about certain matters in Carol's life—e.g. the grant of a passport—although they were under no obligation to do so, and the fact that they did so can have no relevance to the matters to which this appeal relates.
Carol died on 3rd March 1991 as a result of her heart defect. Her foster parents wanted her to be buried in Lincoln where she had lived as part of their family for the greater part of her life and where she had many friends. The mother wanted her to be buried in Holyhead in the family plot where her father was already buried. The council took the view that their parental rights and duties with respect to Carol ceased on her death, that the mother therefore had the right and the duty to bury Carol, and that it was inappropriate for them to exercise their power to bury Carol under section 25 of the 1980 Act.
On 7th March 1991 the President gave the foster parents leave to challenge the council's decision by way of judicial review, and their motion for that relief came before Mr. Justice Eastham on the morning of 8th March, with the result I have already indicated. The learned judge held that the council's parental rights and duties with respect to Carol came to an end on her death and that the council's decision not to exercise their power under section 25 was not Wednesbury unreasonable.
The argument before us turned entirely upon the issue whether the council's parental rights and duties terminated upon Carol's death. If they did, then Miss Thirlwall, counsel for the foster parents, accepted that the council's decision not to exercise their powers under section 25 could no longer be challenged.
Although Carol was received into care under the 1948 Act, that Act was repealed by the 1980 Act and, under the transitional provisions already mentioned, Carol was at the time of her death deemed to be in the care of the council under the 1980 Act. Accordingly it is to the provisions of that Act that I now refer.
The relevant provisions of the 1980 Act are:
Section 2, which is the section under which a child is in voluntary care.
Section 3, which provides for the assumption by a local authority of parental rights and duties with respect to a particular child in their care under section 2. Those rights and duties are defined for this purpose by section 85(1) of the Children Act 1975—see Schedule 1 to the Interpretation Act 1978—as all the rights and duties which by law the mother and father have in relation to a legitimate child, subject only to certain exceptions in relation to adoption under section 3(10) of the 1980 Act. "Child" is defined by section 87(1) of the 1980 Act as a person under the age the 18 years and a person who has attained that age and is the subject of a care order.
Section 5 provides for the duration and rescission...
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