Re G (Minors) (Interim Care Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE STEYN,THE MASTER OF THE ROLLS |
| Judgment Date | 21 July 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0721-1 |
| Docket Number | No. CCF/M1/93/0371/F |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 1993 |
[1993] EWCA Civ J0721-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(His Honour Judge Hamilton)
Before: The Master Of The Rolls (Sir Thomas Bingham) Lord Justice Steyn and Lord Justice Waite
No. CCF/M1/93/0371/F
IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF G (MINORS)
MR. I. PEDDIE Q.C. and MRS. C. STREETS (instructed by Messrs. Sharpe Pritchard (London Agent for) R.C. Wilkinson Esq., County Hall, Bedford) appeared on behalf of the Appellants.
MR. G. BRASSE (instructed by Messrs. Neves, Luton) appeared on behalf of the 1st Respondent.
MISS C. BUDDEN (instructed by Messrs Knowles Benning, Luton) appeared on behalf of the 2nd and 5th Respondents.
MISS E. PLATT Q.C. and MISS S. WALKER (instructed by Messrs. Cooke & Sons, Luton) appeared on behalf of the 3rd and 4th Respondents.
MRS. P. CAPUTO appeared in person.
MR. A. LEVY Q.C. and MISS H O'BRIEN (instructed by Messrs. Pictons, Luton) appeared on behalf of the Guardian ad Litem.
(As approved)
Wednesday, 21st July, 1993.
The two boys who are the subject of this appeal are Adam aged ten and Ashley aged seven. Their mother suffers from difficulties in her personal life which have unfortunately left her unable to undertake responsibility for their day to day care, although she dearly wishes to remain in touch with them. The boys have different fathers. Adam's father plays no part in his life. Ashley's father (formerly married to the mother) is serving a term of imprisonment. It will be convenient to refer to him as "the father" though he is only a stepfather to Adam. Ashley has been with foster parents (whom I will call "the current foster parents") since he was placed with them in February 1991 when he was not quite five years old, and Adam has also been in their care since he was placed there more recently in August 1992.
Enough has been said already to indicate that these are boys who have suffered a good deal of instability in their young lives. It is becoming urgent to find a placement which will ensure them a stable and secure environment for their future development. Various options are currently being explored by the local authority (whom I will call "the Authority"). An upbringing by the mother or the father is unfortunately impossible. The boys will have to be given alterative carers of some kind. Who should they be? One view would favour a placement with a natural relative —the father's mother. Another would favour a completely fresh start with strangers -—a couple chosen for their potential to fulfil the special needs of these boys as long term foster parents. Yet another would favour extending the present short term status of the current foster parents, so as to allow them to become the boys' permanent carers. These competing views will all in due course be aired at the final hearing of the numerous applications now pending in regard to the boys. The pressure on the lists for family cases is, unfortunately, such that the main hearing cannot take place until the end of this year or the beginning of next. In the meantime the Authority has made arrangements for the boys to be formally assessed —a process that will include consultation with the Department of Child Psychology at Great Ormond Street —with the intention that the result of such assessment will be available to the court and parties when the hearing does take place.
The problem for the judge, and for this court on appeal, has been the question of what orders should be made to cover the position between now and the date of the main hearing. No one resists the idea in principle that the status quo should be preserved for the time being, that is to say keeping Adam and Ashley in the care of the current foster parents. The principle debate has centred on the question of what the legal framework for such an arrangement should be. The Authority say that there should be an interim care order to give them the necessary power to supervise the forthcoming assessment and to respond flexibly to the children's developing needs for, and responses to, contact with the natural family. Although they have no present intention of moving the children from the current foster parents pending the final hearing, they wish to maintain in principle the right to do so under an interim care order if there should be a significant change of circumstances. The mother and the current foster parents oppose that suggestion as involving a pre-judgment of the whole question which will be in issue at the final hearing, namely the question of whether there should be any order under Part Four at all, or whether (as they contend) the boys' future can be assured by appropriate orders under the private law provisions in Part Two of the Children Act. The judge (His Honour Judge Hamilton) favoured the latter view. In the Luton County Court on 19th February 1993 he made interlocutory orders in the proceedings in which he refused the Authority's application for an interim care order, gave the current foster parents leave to be joined as parties to the proceedings, and granted a prohibited steps order restraining the Authority from disturbing the placement with the current foster parents. From those interlocutory directions the Authority now appeals to this Court.
Before describing the course of the proceedings before the judge, it will be necessary to mention the background, including the procedural history, in a little more detail. Adam was born to the mother and a Mr. Doland on 16th March 1983. His sister, Heather, was born to them on 30th July 1984. Heather was placed informally with her maternal grandfather soon after her birth and was in due course placed for adoption in September 1989. Those plans have not proceeded; Heather is back in contact with the natural family, and one of the problematic issues that may have to be resolved in due course for the boys is the question of the links they should or should not renew with Heather. The mother had, after Heather's placement, formed an association with the father. Ashley was born to them on 1st April 1987. The mother and father were married on 20th January 1989. It was a brief marriage. The mother petitioned for divorce in February 1990 and a decree absolute was pronounced in August 1990.
Adam began to show signs of disturbance and had to be excluded from his school in January 1991. On 14th February 1991 Adam and Ashley were received into voluntary care at the mother's request. They were placed initially with separate short term foster parents; Adam with a Mr. and Mrs. W, and Ashley with the current foster parents. In the following month of March 1991 the mother made allegations against the father of kidnap and rape as a result of which criminal proceedings were started against him.
The Authority applied to be joined as interveners in the matrimonial suit between the parents (in which custody had initially been awarded to the mother). That application was heard by Mr. Recorder Hall on 9th April 1991. The hearing was attended only by representatives of the Authority. The Recorder made an order giving the Authority leave to intervene in the suit. He also made an order, purportedly under section 43 of the Matrimonial Causes Act 1973, granting the Authority, at their request, what was described as "interim care and control" of Adam and Ashley. The arrangements thereafter made for the continuing short term foster placements of the boys took place under the purported authority of that order.
On 23rd July 1992 the father was convicted on charges arising out of the mother's allegations, and for offences of dishonesty. He received a sentence of four-and-a-half years' imprisonment which he is still serving.
In early August 1992 Adam was placed by the Authority with the current foster parents where he and Ashley have remained (still on a short term basis) to this day. At a case conference held in the same month the Authority decided to assess the father's mother, Mrs. Morris ("the paternal grandmother") as a potential long term carer for both boys. Objection to that proposal was made by...
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