Re A and W (Minors) (Residence order: leave to apply)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE MANN,THE MASTER OF THE ROLLS |
| Judgment Date | 11 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0511-3 |
| Docket Number | 92/0452 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 1992 |
[1992] EWCA Civ J0511-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(SIR GERVASE SHELDON)
Royal Courts of Justice
The Master of The Rolls
(Lord Donaldson)
Lord Justice Balcombe
Lord Justice Mann (Not Present)
92/0452
MR. ALLAN LEVY Q.C. and MR. SIMON BRILLIANT (instructed by Messrs. Ackroyd & Aina) appeared for the Appellants (Local Authority).
MISS JUDITH PARKER Q.C. and MISS MELANIE DEN BRINKER (instructed by John Pearson Esq., Morden) appeared for the Respondent (Mother).
MR. JAMES MUNBY Q.C. and MISS ALISON BALL (instructed by the Official Solicitor) appeared for the Respondent (Foster Mother).
This appeal is by the London Borough of Merton, with the leave of the judge, from an order made by Sir Gervase Sheldon, sitting as an additional judge of the High Court, on 20th December 1991, whereby he granted to Miss Jeanette Elizabeth Roberts, who had been the foster mother of four children in the care of Merton, leave to apply for a residence order in respect of those children. Merton's appeal is supported by Angela Bleach, the mother of the children. The appeal raises questions under the Children Act 1989 which have not been previously considered by this court. All subsequent references to the Act or to statutory provisions are to the 1989 Act and its provisions unless otherwise stated.
In the course of this judgment I have found it convenient to refer to the mother, the children and the foster mother by name. I would propose that the order of this court should contain the usual direction that any report of this case should not reveal these names nor contain any other particulars calculated to lead to the identification of the children.
Mrs. Bleach has six children in all: Barry born 14th March1975 and now aged 17; Paul born 21st December 1976 aged 15; Danielle born 5th June 1978 aged 13; Toni born 2nd January 1980 aged 12; Alan born 23rd April 1981 aged 11; and Kris born 21st November 1982 aged nine. Barry, Paul and Danielle are her children by her first husband, from whom she was divorced in 1976 and who has since played no part in the children's lives. Toni, Alan and Kris are her children by her second husband who committed suicide in 1983. She has since been married again and divorced and now has a co-habitee of three years' standing. This appeal concerns the four younger children, although the two elder boys played a part in the events which led up to the present situation.
After unsettled early histories all six children came into the care of Merton in June 1989. Danielle, Toni and Alan were placed with Miss Roberts on 15th June 1989 and Kris, following his discharge from hospital after a road accident, on 30th June 1989. All the children were at that time highly disturbed and were placed with Miss Roberts on a long term fostering basis. Barry and Paul were also placed with Miss Roberts on 6th August 1989. Full care orders under section 1 of the Children and Young Persons Act 1969 in respect of all six children in favour of Merton were made on 7th November 1989.
The judge described Miss Roberts and her home in the following passage from his judgment:
"She is an unmarried middle-aged lady who, after having worked for some while as a district nurse and in health care nursing, in 1968 began fostering children. Since then with the encouragement of a number of local authorities she has devoted her life, with the help of others by means of fostering and adoption, to the care of children from very disturbed and difficult backgrounds for whom in most, if not all, cases other placements were difficult to find. Thus her household, which is unusual if not unique and which is financed at least partly by a charitable trust, in July this year totalled 39 individuals including adult helpers and some 12 children under the age of 16. Clearly also she is a lady of character and determination who is, or can be, fiercely protective of her charges."
The reports prepared by Merton's social workers indicate that initially all the children made good progress with Miss Roberts and at one time their adoption by her was contemplated. However, the relationship between Merton and Miss Roberts subsequently deteriorated, and Merton became concerned about the placement of the children with her. These concerns were fuelled by allegations made by Paul and Barry who respectively ran away from Miss Roberts' home in August and September 1990. Barry's placement with Miss Roberts ended in November 1990: Paul's in May 1991.
For the purposes of this judgment it is unnecessary to set out in detail the concerns felt by Merton about the placement of the four children with Miss Roberts. A wealth of affidavit evidence filed by and on behalf of Miss Roberts strenuously denies that there is any substance in those concerns and asserts that the four children who remained with her continued to make excellent progress. There is also substantial affidavit evidence filed by Merton setting out their concerns and the reasons for them. Matters came to a head on 19th June 1991 when Merton decided to remove the four children for assessment on 26th June, whereupon Miss Roberts required that they be removed immediately. They left Miss Roberts' home on 19th June, and after a period in a children's home they have been placed with different foster parents. Paul, Barry and Danielle are together with one family, Toni and Alan were initially together although Alan has since had to be moved to a small children's home, and Kris is with a third family. All six children see their mother and each other monthly. Since leaving her home, none of the children has had any contact with Miss Roberts or the members of her "family".
On 19th July 1991 Miss Roberts applied for leave to apply for judicial review of Merton's decision to remove the four children from her, that being at the time the only procedure which was open to her. She was granted leave to make that application by Waite J. on 5th August 1991, and her substantive application for judicial review came before Sir Gervase Sheldon on 11th December 1991. To that application Merton was the only respondent. However, on 19th December 1991 the period of six months from the date when the children left Miss Roberts' home and she ceased to be their foster parent was due to expire, and Miss Roberts would then be free to apply for a residence order under section 8 in respect of the four children, without Merton's consent under section 9(3) (a). (This consent was necessary because the children had not lived with her for at least three years—see section 9 subsections (3) (c) and (4).) Since a residence order was in substance what Miss Roberts sought, it was agreed between counsel for Miss Roberts and Merton:
(a) that Merton would not object to Miss Roberts' application for a residence order being made before the expiry of the six months period;
(b) that the hearing before the judge should be treated as the hearing of that application;
(c) that if, in the event, Miss Roberts were to be given leave to apply for a residence order she would agree to the formal dismissal of her application for judicial review without any penalty as to costs; but
(d) that, if leave under the Act were to be refused, it would be open to Miss Roberts to continue the judicial review proceedings.
The mother knew of Miss Roberts' application for judicial review, but was told (correctly) that she was not directly involved with those proceedings. She was not told of Miss Roberts' application for leave to apply for a residence order and knew nothing about it until after leave had been granted.
Miss Roberts' application for leave to apply for a residence order under section 8 was governed by section 10(9) which provides:
"(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to—
(a) the nature of the proposed application for the section 8 order; (b) the applicant's connection with the child; (c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and (d) where the child is being looked after by a local authority—
(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents."
"Harm" for the purpose of paragraph (c) is defined by the combined effect of sections 105(1) and 31(9) and (10) as "ill-treatment or the impairment of health or development". "Development" is also defined as meaning "physical, intellectual, emotional, social or behavioural development" and, where the question whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could...
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