Re F (A Minor) (Care Proceedings: Withdrawal)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
HOLLINGS, J
Care proceedings – application to withdraw proceedings – oral application to withdraw to be made only in the presence of all parties including guardian ad litem – magistrates to state findings of fact and reasons for decision giving leave to withdraw.
The child was born in 1980. In December 1991 the mother went to Nigeria leaving the child with the father. Following allegations by the child of physical abuse by the father, the child was accommodated by the local authority. In April 1992 the father also went to Nigeria. In May 1992 the local authority applied for a care order and in June 1992 a guardian ad litem was appointed. Interim care orders were made. In July the mother returned to England. The mother was disabled by a severe illness and was confined to a wheelchair. The matter came before the family proceedings court in September. The guardian ad litem was unable to be present. The local authority applied orally to withdraw their application for a care order. The guardian ad litem was represented by counsel who did not agree that the application should be withdrawn. The family proceedings court nevertheless gave leave for the application to be withdrawn.
The magistrates's reasons for giving leave were: (i) that no significant harm would come to the child; (ii) that they were reassured that the mother would allow the child to be accommodated by the local authority; (iii) that social work help would continue without a court order; and (iv) that the child's removal from the foster mother would be planned and in the child's best interests.
The guardian ad litem appealed.
Held – allowing the appeal: (1) The family proceedings court, when giving leave for the application to be withdrawn, had failed to comply with r 5 of the Family Proceedings Courts (Children Act 1989) Rules 1991. Under that rule, a request to withdraw an application could be made orally only if all parties, including the guardian ad litem, were present. The guardian ad litem had to be present personally and would not be deemed to be present if her legal representative was present. In this case the family proceedings court had failed to give proper notice to the guardian ad litem of the local authority's application to withdraw the proceedings. The magistrates were in error and should not have given leave for the application to be withdrawn on the material before them.
(2) On a request to withdraw an application, the matter had to be considered as carefully
by the court as any other application for an order in respect of a child under the Children Act 1989. There was a statutory duty upon the court to have regard to the welfare of the child, and this included the duty to hear expert evidence from the guardian ad litem prepared in accordance with the guardian ad litem's statutory duty, before the court could allow proceedings to be withdrawn. In this case the magistrates had failed to comply with r 21 of the 1991 Rules. Their reasons were inadequate. The reasons did not, as required, set out the magistrates' findings of fact nor did they set out the basis of the magistrates' decision by referring to those facts.
The matter would be remitted for rehearing by another court. In the circumstances the right court to rehear the matter was the county court.
Per curiam: Upon hearing of the appeal, the justices' clerk, on behalf of the magistrates, had attempted to communicate with the court to explain their decision or otherwise to amplify their reasons. It would be quite wrong to allow magistrates to supplement reasons already given by further correspondence with the court.
NoteAs to submissions supplementing magistrates' reasons, see also N v B (Children: Orders as to Residence)[1993] 1 FCR 231. Anything which supported the decision of the court must be contained in the reasons given at the time of the decision in accordance with r 21 of the 1991 Rules.
Statutory provisions considered:Children Act 1989, s 1(5) and 20.
Children and Young Persons Act 1933, s 44.
Family Proceedings Courts (Children Act 1989) Rules 1991, rr 5, 11 and 21.
Cases referred to:Croydon London Borough v A and B (No 2)[1992] 2 FCR 858; [1992] 1 WLR 984.
R v Birmingham City Juvenile Court, ex parte G and R [1989] FCR 22; [1988] 1 WLR 950; [1988] 3 All ER 726 (QBD); affd [1989] FCR 460; [1990] 2 QBD 573; [1989] 3 All ER 336 (CA).
AppealAppeal from Haringey family proceedings court.
Stephen Bellamy for the guardian ad litem.
Jane Humphryes for the local authority.
Sharon Kelly for the mother.
MR JUSTICE HOLLINGS.This...
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