Re F (in Utero) (Wardship)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE BALCOMBE,LORD JUSTICE STAUGHTON |
| Judgment Date | 04 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0204-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0086 |
| Date | 04 February 1988 |
[1988] EWCA Civ J0204-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION.
MR JUSTICE HOLLINGS.
Royal Courts of Justice,
Lord Justice May
Lord Justice Balcombe
and
Lord Justice Staughton
88/0086
MR B. JUBB (instructed by Mr R.E Pugh, Borough Secretary) appeared on behalf of the appellants (plaintiffs).
MR A. LEVY (instructed by The Treasury Solicitor) appeared as amicus curiae.
The question which arises on this appeal is whether the court has power to make an unborn child a ward of court.
On the 15th January 1988 Mr Justice Hollings held that the court did not have that power and dismissed the appellant's ex parte application for leave to issue an originating summons to ward a child with whom his or her mother was then pregnant. The likely date of birth of the child was the 23rd or 24th January 1988. The learned Judge gave leave to appeal.
We heard the appeal on the 16th January 1988. The appellant local authority was represented before us. Mr Levy also appeared, instructed by the Official Solicitor, acting as an amicus curiae on the learned judge's direction. We were grateful for his attendance. At the end of the argument we dismissed the appeal and said that we would give our reasons later. This we now do.
It is unnecessary to go into the facts of the case in any great detail. The mother is some 36 years of age. Since about 1977 she has unfortunately suffered from severe mental disturbance, accompanied by drug abuse from time to time. She gave birth to a son on the 31st December 1977. Due to her mental condition the local authority was even then much concerned for the infant boy. There were Juvenile Court proceedings and a care order was made. From time to time there were attempts at rehabilitation between the mother and her son. Then in 1982 she disappeared with the young boy and lived a nomadic existence with him in a number of European countries until she was discovered in Turkey in February 1983. On her return to this country the boy was placed with foster parents and wardship proceedings were begun in 1985. The substantive hearing of these was on 6th February 1986. On that occasion Mrs Justice Booth terminated access for the mother, gave care and control to long-term foster parents and leave to start adoption proceedings.
The mother's life style and mental condition has continued as before. She last saw her psychiatrist on the 4th December 1987. The Social Services Department of the local authority have been in touch with her throughout and she was seen from time to time after early December 1987 at her flat within the Borough. However, early in January 1988 the local authority was told by neighbours of the mother that she had not been seen for a few days. The authority tried to locate her without success. They entered her flat and found that she had left it, leaving in it several things that she had earlier bought for the forthcoming baby. The local authority have no knowledge of the mother's present whereabouts. She has no means of support other than Social Security. The local authority have a very understandable concern for the welfare of the unborn child.
On these facts, which I have only briefly outlined, I have no doubt myself that if the court had power I would give leave to issue the necessary originating summons and make the unborn child a ward of court. As I have said, however, the sole question in this appeal is whether we have the power to do so.
The learned Judge accepted that wardship proceedings are unlike other civil proceedings. There is no lis between the parties concerned. In wardship proceedings the court is exercising a parental jurisdiction in which the paramount consideration is the child's welfare. But in the case of an unborn child the only orders to protect him or her which the court could make would be with regard to the mother herself. Thus in the first place there would have to be an order authorising the Tipstaff to find the mother. Then perhaps an order that she should live in a certain place and probably attend a certain hospital. All of these would be restrictive of the mother's liberty. Further, there could well be medical problems which would have to be solved: the mother might wish one course of action to be taken; it might be in the interests of the child that an alternative procedure should be followed. Until the child is actually born there must necessarily be an inherent incompatibility between any projected exercise of wardship jurisdiction and the rights and welfare of the mother.
This Mr Jubb for the appellant local authority accepted in the course of the hearing before us. But, as I have indicated, he stressed that wardship proceedings are indeed unlike any other civil proceedings. He referred us to the dictum quoted by the learned Judge from the judgment of Lord Esher, M.R in Hassan v. Gyngall (1893) 2 Q.B 232, at page 239:
"Wardship was a parental jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown as being the guardian of all infants in place of the parents, as if it were the parent of child, thus superseding the natural guardianship of the child."
The judge also quoted a passage from the speech of Lord Scarman in Re E. [1984] 1 W.L.R., 158, where he said:
"A court exercising jurisdiction over its ward must never lose sight of a fundamental feature of the jurisdiction, namely, that it is exercising a wardship, not an adversarial jurisdiction. Its duty is not limited to the dispute between the parties. On the contrary, its duty is to act in the way best suited in its judgment to serve the true interests and welfare of the ward. In exercising wardship jurisdiction the court is a true family court. Its paramount concern is the welfare of its ward."
In these circumstances, counsel submitted that the court at the present time should not be averse to extending the wardship jurisdiction in a proper case. Any argument that an extension to cover the circumstances of the instant case might open the floodgates to many similar applications, counsel suggested, could and should be countered by the court going no further than being prepared to ward a viable child en ventre sa mere, that is to say a child of not less than 28 weeks. In addition, Mr Jubb submitted that the inter-operation of the provisions of Order 90, Rule 3 (2) of the Rules of the Supreme Court and the Practice Direction reported at [1982] 1 W.L.R 118 made it clear that the factual inability to make an unborn child a party to wardship proceedings was no reason why these should not be started.
Counsel further contended that one could distinguish the recent cases which attracted some publicity of Paton v. British Pregnancy Advisory Service Trustees [1979] 1 Q.B. 276 and C. v. S. [1987] 2 W.L.R 1101. The first case was concerned with a claim by a husband to restrain his wife and the trustees of a charitable organisation from causing or permitting an abortion to be carried out on the wife without the husband's consent. The claim failed on the ground, as Sir George Baker, P., held, that an unborn child had no rights of his own, nor had the husband, to sue for the relief claimed. In any event, the learned President pointed out that it would have been quite impossible to enforce any order which the court might have made had it been minded to do so. The second case involved a claim brought by a putative father of a foetus of 18/21 weeks en ventre sa mere for an injunction restraining the mother and the local health authority from performing an abortion on the former. The ratio of the decision both at first instance before Heilbron J. and in the Court of Appeal was that it had not been shown that the projected abortion would amount to any criminal offence and that, therefore, the plaintiff was not entitled to relief. Heilbron J. also held that the father had no locus standi in the proceedings, either as father or husband or as the next friend of the unborn child. Mr Jubb submitted that these cases should be distinguished on the grounds that they were not concerned with any wardship jurisdiction and that in each there was quite clearly a lis between the parties.
Counsel accepted that there is no authority directly on the point which arises for our decision but very properly drew our attention to the dictum of the learned President in Paton's case at page 279D:
"The first question is whether this plaintiff has a right at all. The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia and, I have no doubt, in others."
Heilbron J. expressly agreed with this view in her judgment in C. v. S. and herself at page 1112H said:
"As to the position of the second plaintiff and his claim that the unborn child has the locus standi to make this application, Mr Wright produced a wealth of authorities from far and wide, some of which he cited. His research and that of his junior was extensive, hut it would serve no useful purpose, nor do I propose, to refer to most of them, for they did appear to he somewhat remote from the issue as to whether or not the unborn child could he a party to this motion…..
The authorities, it seems to me, show that a child, after it has been horn, and only then, in certain circumstances, based...
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