Re B (A Minor) (Supervision Order: Parental Undertaking)
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1995 |
| Court | Court of Appeal (Civil Division) |
NEILL, LJ AND BENNETT, J
Care proceedings – supervision order – whether county court could accept undertakings from parent.
Supervision order – care proceedings – county court judge making supervision order – mother giving undertakings – whether county court had jurisdiction to accept undertaking from parent in care proceedings.
A local authority applied for a care order in respect of a child born in December 1989. The child's mother suffered from a borderline personality disorder and found it difficult to accept help, particularly from the local authority's social services department. The child was progressing well and was attached to his mother and to his grandmother. The Judge found that the threshold criteria in s 31 of the Children Act 1989 were satisfied and that the child was likely to suffer significant harm if no order was made. The local authority's care plan proposed that the child be removed from the care of the mother and placed with short-term foster-parents and then with long-term foster-parents with or without the possibility of adoption. The Judge made a supervision order and took undertakings from the mother that amongst other things she received medical treatment as recommended by a psychiatrist and that she permitted the doctor to provide the local authority with details of her treatment.
The local authority appealed.
Held – dismissing the appeal: (1) A county court had no inherent jurisdiction to grant an injunction to protect children and therefore had no inherent jurisdiction to accept undertakings as part of a supervision order from the mother even though she had been quite willing to give them. Nor had a county court statutory power to accept such an undertaking. The mother's agreement to seek medical treatment and to release the medical notes concerning her treatment could, however, be recorded in the preamble to the supervision order so that it could be drawn to the court's attention if she failed to honour it when it was reviewed.
(2) The Judge had clearly ruled that it was not in the child's interests to be taken from his mother. The scales had not just tipped in favour of a supervision order but had come down completely against a care order. He had found that the risk of harm from a care order far outweighed the risk of harm from a supervision order. Therefore the supervision order would not be set aside but would be amended.
Statutory provisions referred to:Children Act 1989, ss 31 and 35, and Sch 3, Part I, paras 2 to 4, and Part II.
CCR Ord 29, rr 1 and 1A.
Cases referred to in judgment:D v D (Child Case: Powers of Court)[1994] 3 FCR 28.
Hussain v Hussain [1986] Fam 134; [1986] 2 WLR 801; [1986] 1 All ER 961.
Roberts v Roberts [1990] FCR 837.
S (A Minor) (Care or Supervision Order), Re[1996] 2 FCR 719.
S and D (Child Case: Powers of Court), Re[1995] 1 FCR 626.
V (A Minor) (Care or Supervision Order), Re[1996] 2 FCR 555.
Williams v Fawcett [1986] QB 604; [1985] 1 WLR 501.
Elizabeth-Anne Gumbel for the guardian ad litem and local authority.
William Holland for the mother.
LORD JUSTICE NEILL. IntroductionThis case raises an important question relating to supervision orders made by county courts pursuant to s 31 of the Children Act 1989 (the 1989 Act).
The appeal is brought by the guardian ad litem and Hertfordshire County Council (the local authority) against two orders made on 18 May 1995 by His Honour Judge Goldstone sitting in the Watford county court. It is not in dispute that the two orders are to be read together and that, so read, they constitute the supervision order with which this case is concerned.
The supervision order relates to a boy, KB, who was born on 27 December 1989. At the date of the order he was 5½ years old.
On 9 August 1994 the local authority applied for a care order in respect of K pursuant to s 31 of the 1989 Act. The care plan to which I shall have to refer in further detail later, proposed the removal of K from the care of his mother and that he should be placed with short-term foster-parents and then placed with long-term foster-parents with or without the possibility of adoption. The application came on for hearing before Judge Goldstone on 6 February 1995 and was adjourned part heard on 14 February. The hearing resumed on 16 May and concluded on 18 May.
The Judge was satisfied that K was likely to suffer significant harm if no order were made under s 31 but decided that he should make a supervision order rather than a care order. I shall have to return to the terms of the supervision order later. At this stage it is sufficient to say that the Judge when making this supervision order, which was for a period of 12 months, accepted certain undertakings from the mother and attached certain conditions to the order.
The local authority has now appealed on the basis that the supervision order made by the Judge was made without jurisdiction and that in any event it was unjustified on the evidence before the court.
The factsThe mother is now 24 years old. In 1988 she and K's father started a relationship. On 27 December 1989 K was born. In about 1991 the relationship between the mother and the father broke down. On 21 March 1991 interim custody was granted to the father on an ex parte application. On 27 March 1991 His Honour Judge Stockdale ordered that interim custody be granted to the father, together with a supervision order to the local authority and reasonable access for the mother. In May 1991 the father returned K to the mother without the intervention of the court. On 24 May 1991 the Barnet county court made a supervision order for a period of 12 months and granted care and control of K to the mother. On 26 September 1991 K was registered on the child protection register in the category of emotional abuse/grave concern and neglect. K remains on the child protection register but the category was changed to neglect in and from August 1993. On 21 September 1993 K and the mother moved to a residential family unit. On 13 January 1994 K and the mother left the family unit and returned to the mother's home.
In January 1994 K began attending a nursery school. On 19 May 1994 the mother and K were interviewed by Dr Dennehy, a well-known consultant child psychiatrist, on behalf of the local authority. She came to the conclusion that there was either no bonding or no significant bonding between K and the mother. Dr Dennehy's report strongly hinted that K should be removed from the mother permanently. She wrote:
"In view of [the mother's] inadequate co-operation, further legal action is essential to protect [K] from the grave risk of further physical abuse and neglect from the emotional abuse arising from his mother's inconsistency, rapid mood changes and sustained failure to provide adequate social training. [K] is urgently in need of a secure dependency situation within which he could develop a good self-concept and relinquish his testing behaviour before the present patterns become fixed and his educational and psychological growth further impaired."
Upon receipt of that report in June 1994 the local authority had to take stock. Their decision was to apply for a care order which they did on 9 August 1994. In the application the local authority set...
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Re K (supervision orders)
...was better for the children than no order at all. Cases referred to in judgmentB (a minor) (supervision order: parental undertaking), Re[1996] 3 FCR 446, CA. B (minors) (care or supervision orders), Re[1997] 1 FCR 309. CB and JB (minors) (care proceedings: case conduct), Re[1998] 2 FCR 313.......