Re B. (Infants)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ormerod,Lord Justice Upjohn,Lord Justice Pearson |
| Judgment Date | 14 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0714-1 |
| Date | 14 July 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0714-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Upjohn
and
Lord Justice Pearson.
Mr A. C. Sparrow (instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr F. P. Boyce, Norwich) appeared as Counsel on behalf of the Appellants (Applicants).
Mr Arthur Bagnall, Q.C. (instructed by Messrs Piece & Sons, Agents for Messrs Russell Steward, Stevens & Hip well, Norwich) appeared as Counsel on behalf of the Respondent (Respondent).
This appeal is from a decision of Mr Justice Pennycuick dated the 15th March, 1961, refusing to continue an Order that the children of Mrs Baker, one of the Respondents, should be wards of Court. As the case stems from the persistent failure of Mrs Baker to provide for her children, or such of her children as are of compulsory school age, efficien full time education suitable to the age, ability and aptitude of those children either by regular attendance at school or otherwise, it is essential that I should refer to the relevant sections of the Education Act, 1944.
Section 36 of the Act, which states the duty of the parent, is as follows:"It shall be the duty of the parent of every child of compulsory school age to cause him to receive efficient full time education suitable to his age, ability and aptitude either by regular attendance at school or otherwise
Section 37 then sets out the duty of the local authority in cases where it appears to them that a child is not receiving the efficient full time education prescribed by section 36, and is as follows;"(1) If it appears to a local education authority that the parent of any child of compulsory school age in their area is failing to perform the duty imposed on him by the last foregoing section, it shall be the duty of the authority to serve upon the parent a notice requiring him, within such time as may be specified in the notice not being less than fourteen days from the service thereof, to satisfy the authority that the child is receiving efficient full time education suitable to his age, ability and aptitude either by regular attendance at school or otherwise. (2) If, after such a notice has been served upon a parent by a local education authority, the parent fails to satisfy the authority in accordance with the requirements of the notice that the child to whom the notice relates is receiving efficient full time education suitable to his age, ability and aptitude, then, if in the opinion of the authority it is expedient that he should attend school, the authority shall serve upon the parent an order in the prescribed form (hereinafter referred to as a 'school attendance order') requiring him to cause the child to become a registered pupil at a school named in the order; Provided that before serving such an order upon a parent the authority shall, where practicable, afford him an opportunity of selecting the school to be named in the order, and if a school is selected by him, that school shall, unless the Minister otherwise directs, be the school named in the order".
Section 40 provides for the method of enforcing an order for school attendance, and prescribes an ascending scale of fines, and, on the third or any subsequent offence, the amount of the fine is not to exceed £10 or imprisonment for a term not exceeding one month or both such fine and such imprisonment. The section is as follows:"(1) Subject to the provisions of this section, any person guilty of an offence against section thirty-seven or section thirty-nine of this Act shall be liable on summary conviction, in the case of a first offence against that section to a fine not exceeding one pound, in the case of a second offence against that section to a fine not exceeding five pounds and in the case of a third or subsequent offence against that section to a fine not exceeding ten pounds or to imprisonment for a term not exceeding one month or to both such fine and such imprisonment. (2) It shall be the duty of the local education authority to institute proceedings for such offences as aforesaid wherever, in their opinion, the institution of such proceedings is necossarybfor the purpose of enforcing the duty imposed upon a parent by this Act to cause his child to receive efficient full time education suitable to his age, ability and aptitude, and no such proceedings shall be instituted except by or on behalf of a local education authority".
It should be noted, for it is important, that it may be the duty of the local education authority to institute proceedings for offences such as the breaches by the parent of the provisions of Section 37- It remains only, I think, to refer to the definition of"parent" contained in the definition section of the Act, which is section 114 (1) and provides as follows:"Parent in relation to any child or young person includes a guardian and every person who has the actual custody of the child or young person".
The facts in this case, so far as they are relevant, are as follows: Mr and Mrs Baker, the parents of the children in question, lived at all material times on a farm in Norfolk until November, 1953, when they separated. Mr Baker went away and Mrs Baker remained at the farm with the children. There are seven in all, but in this appeal we are concerned with three only, as they are the only ones of compulsory school age, and they are Robin, Felicity and Wendy, who are aged 14, 13 and 12 years respectively. There appears to be no doubt that Mrs Baker has persistently refused to allow any of her children to attend school. She has contended that by her own methods she is educating the children, and thay are receiving at home an efficient full time education. She has referred in her evidence in one or other of the numerous cases which has been before the Courts to the fact that she was giving to the children the "light and warmth of a natural education", and she spoke of schools sometimes as a form of imprisonment and at other times as a zoo. Be that as it may, the local authority, as was their right, and indeed as was their duty, came to the conclusion, after investigating the matter, that Mrs Baker was not affording to the three children named an efficient education as provided by the Education Act, and, in those circumstances, conceived it their duty to take such steps as they could to ensure that the children received the prescribed education. It is no part of the duty of this Court to comment on the behaviour of Mrs Baker, or to remark as to the correctness or otherwise of the decision taken by the local education authority, but it should"be noted that the judicial bodies concerned with the attendance orders, that is to say, the Magistrates, and, in due course, the Quarter Sessions, have each in their turn confirmed the view of the local education authority that these children were not receiving a proper, or indeed any, education, and, although Mrs Baker has insisted that she is bringing the children up in such a way that they will get the benefit of a natural education, the fact remains that they are learning very little as education is understood at the present time, and they are associating little if at all with other children of their own age, and indeed that they are doing a great deal of the housework and work about the farm and land where they live.
In May, 1955, a Summons was issued against Mrs Baker in the local Magistrates' Court, and she was convicted of the breach of an attendance order served upon her by the Appellants, but in July, 1955, that conviction was quashed by Quarter Sessions on the ground that the preliminaries to the order had not been carried out in accordance with the provisions of the Statute. Nothing was done after that until the 16th May, 1957, when attendance notices were served on Mrs Baker in accordance with section 37 (1) of the 1944 Act, and, as they were not complied with, on the 19th July attendance orders were served. Mrs Baker in turn failed to comply with these orders, and, on the 15th November, 1957, she was convicted again by the Magistrates. She appealed on the 16th May, 1958, to Quarter Sessions, but that appeal was dismissed. On the 28th November, 1958, Mrs Baker was again convicted for a similar breach of the orders in question, and, on the 10th February, 1959, appealed to Quarter Sessions, when her appeal was dismissed, but she then appealed to the Divisional Court. The appeal was heard on the 5th February, 1960, and was dismissed. It is worth noting that the Lord Chief Justice, in giving judgment in the Divisional Court, read from the Case Stated by Quarter Sessions this finding of fact:"Having considered the evidence, observed the children and heard the Appellant's argument, we found as a fact that the Appellant had failed at all material times to cause any of the said children to receive efficient full time education suitable to their age, abilities and aptitude otherwise than at school".
On the 9th May, 1960, the Appellants took out an Originating Summons under section 9 of the Law Reform (Miscellaneous Provisions) Act, 1949, and the effect of that Summons was that the children automatically became wards of Court until such time as the matter was heard by the learned Judge. It is conceded that the only purpose of the local education authority in taking out this Originating Summons was to enforce the orders which in their discretion they deemed it proper, and indeed their duty, to make, and no allegation of any kind has at any time been made that these children are not being properly cared for other than that the parents have neglected their duties under the Education Act.
The matter came before Mr Justice Pennycuick,...
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