Re D (A Minor) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF |
| Judgment Date | 19 May 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0519-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0463 |
| Date | 19 May 1987 |
[1987] EWCA Civ J0519-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE WAITE
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Woolf
87/0463
THE APPELLANT (PLAINTIFF) appeared in Person.
MR GRAHAM PLATTS, instructed by J.W.G. MacGregor Esq. (Bolton), appeared for the First Respondent (Second Defendant).
MR GORDON MURDOCH, instructed by the Official Solicitor, appeared for the Second Respondent (Third Defendant).
(Giving the judgment of the court). This is an appeal by the parents of Kenneth against orders which were made by Waite J. on 18th December 1986 in wardship proceedings. Kenneth was born on 19th August 1973 and is therefore now 13. Unfortunately his physical growth and mental development are retarded, and it is common ground that he has special educational needs.
Kenneth's parents are the Plaintiffs. Kenneth is the first defendant and represented by the Official Solicitor. The Bolton Metropolitan Borough Council, the local authority for the area in which the parents live, are the second defendants.
Although represented by solicitors and counsel in the court below, the parents were refused legal aid for this appeal and the father therefore conducted it in person on their behalf. In doing so he showed exceptional ability, and, although he undoubtedly feels extremely deeply about the issues raised on the appeal, he advanced his submissions with exemplary courtesy and in a remarkably articulate and lucid manner.
The principle (the jurisdiction issue) on this appeal is of general importance since it concerns the extent, if any, to which the court's powers in wardship proceedings are curtailed by the statutory duties and powers of the local authority with regard to the education of children in their area. In that context the father has also been granted leave to apply for judicial review in respect of the activities of the local authority and the Secretary of State for Education and Science in relation to Kenneth's education. Although this application is not directly before us, it is therefore desirable to consider the relationship between those proceedings and the powers of the court in wardship proceedings (the judicial review issue), and we accordingly do so at the end of this judgment. Above all, and in the light of the jurisdiction issue, we have to consider whether, if Waite J. had the necessary jurisdiction, he erred in its exercise (the merits issue) so as to call for a review of the orders which he made.
The person to whom we have referred as the father is in fact Kenneth's stepfather. His natural father married Kenneth's mother after his birth, and a second son Daren was born in November 1975. But the marriage was extremely unhappy and involved scenes of violence which were probably witnessed by Kenneth. In November 1977, just three years after the marriage, the mother presented a petition for divorce and the decree absolute was pronounced about a year later.
Thereafter Kenneth's natural father played no part in his life. He was brought up by his mother and her present husband ("the father") whom she married on 10th November 1978. She is now in her early thirties and he is about 37.
The father had previously had a daughter who is now about 16 and also lives with the family. In addition, there are two young daughters who are the children of the second marriage.
It is necessary that we should say something about the father. He left school at the age of 16 and became an apprentice and then a bus conductor. But he was anxious to improve his education and returned to college for the necessary 'O' levels to proceed to higher education. He then obtained teacher training qualifications in certain technical subjects, a degree in psychology and a qualification in legal studies.
Apart from referring to this remarkable career, it is necessary to say something about the father's personality, since it has undoubtedly played a large part in the history of these proceedings. Having conducted the appeal in person, it was possible to form a much better impression of his personality than is usual on an appeal. Although, as he himself now admits, his conduct can be criticised, we have no doubt that he genuinely believed that his actions were justified throughout, and in Kenneth's best interests. His character appears to us to be admirably encapsulated in the following passage from the judgment:
"The father (like most of us) has his virtues and his failings, and the latter tend to be the obverse side of the former. He is single-minded, resolute, eloquent, emotionally committed, intellectually bright, and has a sound appreciation of the workings of our legal system. He is a powerful figure emotionally and has a tremendous determination allied to a passionate belief in the righteousness of any cause he adopts.
"The result is that his good qualities are swiftly turned, if his purposes are thwarted, to their obverse side. The single-mindedness, resolution and eloquence are liable to develop into obsessiveness, obstinacy and verbosity; and the emotional commitment and legal awareness are liable to be transferred into over-reaction and threats, sometimes implemented by litigation against those who appear to stand in his way."
We have not had an opportunity of forming our own judgment of the mother. However, the judge heard her evidence. His assessment was that she clearly admires and loves the father and has drawn strength and security from her marriage to him. But the judge added that, while she defers to him, she has a mind of her own.
With regard to both parents, it is of the greatest importance to note that Waite J. said:
"No one doubts that they are loving parents who have made—and are willing to continue making—substantial sacrifices of time, leisure and money in caring for Kenneth."
But, notwithstanding those qualities of his parents, there have undoubtedly been considerable problems in relation to Kenneth's upbringing. We turn to the history in that regard.
Kenneth started at a primary school in September 1978 when he was five. At a very early age it was noted by the school that he was backward, and special schooling was suggested even at that stage. In January 1979 the family moved to Bolton and it became clear that Kenneth was intellectually and linguistically retarded. The local education authority recommended that he should attend a special school. However, both parents were strongly opposed to this. They thought that it was most important for Kenneth's upbringing that he should go to a normal school and be educated among ordinary children. But his educational problems were unfortunately combined with physical problems. His growth was retarded, and he is of very short stature for his age. He suffers from a compulsive thirst. He is also an epileptic and has had convulsions since he was a baby, but this condition is now controlled by medication. While the relevant history has in the main been directly concerned with Kenneth's education, it is important not to lose sight of these other matters.
In Stepmber 1980 Kenneth moved to St. Matthew's Primary School. He was then seven, but he had to be placed with five year-olds. His stunted growth was also becoming apparent. From February until the autumn of 1982 he was away from the school because of an acute attack of ringworm. He returned in October 1982, but his attendance was only sporadic, and he finally left in June 1983.
In the autumn of 1983 he started at a fee-paying school, a normal school for children up to 11, but because of his difficulties he was placed in a class for six year-olds. At the end of 1983, when he was 10, his speech therapist stated that his verbal comprehension was delayed at a four to five year-old level.
In April 1984 he had to leave that school because his parents could no longer afford the fees which they had met by making considerable financial sacrifices.
The local authority, as the education authority for Kenneth, then decided to carry out the statutory assessment procedure under the Education Act 1981 with a view to placing him in a suitable special school. Because of their opposition to his going to such school the father and mother refused to co-operate and embarked on a course of conduct designed to frustrate this assessment procedure.
In July 1985 Kenneth was placed in the remedial unit of Dean School which is a general comprehensive school. In August 1985 the local authority started care proceedings in the magistrates' court seeking an interim care order under the Children and Young Persons Act 1969. By initiating these proceedings the local authority were not intending to remove Kenneth from the care of his parents. They were using the care proceedings as the only method open to them for dealing with the tactics of Kenneth's parents which were effectively stalling their attempts to assess Kenneth's needs. The response of the parents was to issue the wardship proceedings on 29th August 1985. This resulted in the care proceedings being adjourned sine die.
In addition to issuing wardship proceedings the father made an application to the Secretary of State for Education and Science seeking directions with regard to complaints made on 21st September 1983 and 20th February 1984 about the conduct of the local authority. He wanted the Secretary of State to make use of his powers under sections 68 and 99 of the Education Act 1944 and to give directions to the local authority.
Originally the Secretary of State was a defendant in the wardship proceedings and the local authority was not joined as a party. However, the local...
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