Re H. (A Minor) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE ORMROD |
| Judgment Date | 28 October 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1028-2 |
| Docket Number | 1977 No. 0258 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 1977 |
[1977] EWCA Civ J1028-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Family Division
Birmingham District Registry
(Mr. Justice Balcombe
Lord Justice Stamp
(not present)
Lord Justice Orr
and
Lord Justice Ormrod
MR. J.D.WAITE Q.C. and MISS ELIZABETH APPLEBY (instructed by Messrs. "Sharpe, Pritchard & Co., Solicitors, London, agents for Mr. Frank H. Wilson. Solicitor, Birmingham) appeared on behalf of the Defendants (Appellants).
MR. P. de MILLE (instructed by Messrs. James Beauchamp, Solicitors, Birmingham) appeared on behalf of the Plaintiffs (Respondents).
I have asked Lord Justice Ormrod to deliver the judgment of the court.
Perhaps I ought to say that Lord Justice Stamp has seen this judgment, and that he has approved it.
This is an appeal by a local authority from an order made on 4th July, 1977 by Mr. Justice Balcombe in wardship proceedings, The respondents, who were the applicants in the court below, are the parents of a little girl now aged 3½ years, in respect of whom a care order was made in favour of the local authority by a juvenile court on 23rd August, 1976 under Sections 1 and 20 of the Children and Young Persons Act, 1969. To preserve anonymity it is undesirable to mention names or places. The parents desire to have the child returned to their care so that they may go back with her and their other two children to their native country. The local authority oppose this course because the evidence strongly suggests that the child has been seriously injured in the past by one of the parents.
The learned judge had to resolve a very difficult question of law and, assuming that it was open to him to go into them, an even more anxious and difficult question on the merits. It will be necessary to refer in more detail to the facts of the case at a later stage of this judgment. It is sufficient at this stage to say that the learned judge decided that non-accidental injury was proved but that in the peculiar circumstances of the case the parents should be permitted to take the child back to their home country.
The case is the latest of a series which has come before the courts in recent years in which it has been necessary to define the limits beyond which the High Court will not go in the exercise of the wardship jurisdiction. The primary issue in this appeal is whether Mr. Justice Balcombe was right in his decision to adjudicateon the merits of the dispute between the parents and the local authority, notwithstanding the existence of the care order. It is plain from his judgment, and from Mr. Waite's careful and sensitive argument on behalf of the local authority, that in the existing state of the law it is difficult to know where the limits lie.
The problem, which is a relatively new one, arises from the co-existence of different, partially co-ordinsted, codes of procedure for dealing with the welfare of children. The wardship jurisdiction of the High Court is by far the oldest and the widest of these, both in its scope and in the range of remedies and powers at its disposal. Whatever its historical origins it is firmly embedded in our law and its value is generally recognised. But, until recently, it was highly centralised in London, and its procedure was both more expansive and inconvenient than the alternative procedures. Its availability to litigants was therefore comparatively restricted. However, in a series of enactments Parliament has progressively removed most of the restrictions. The procedure was simplified by the Law Reform (Miscellaneous Provisions) Act, 1949, and the problem of expense overcome to some extent by the Legal Aid and Advice Act, 1949. The Family Law Reform Act, 1969; extended the powers of the High Court in two important respects Section 6 enabled the court to order periodical payments for the maintenance of the ward, and Section 7 empowered the court to commit a ward to the care of a local authority. The Courts Act of 1971 has completed the process. By transferring wardship cases from the Chancery Division to the Family Division, the availability of this procedure has been extended to all the District Registries throughout the country which handle the work of the Family Division. High Court judges and deputy High Court judges can now hear wardship cases in all the main centres.
In contrast, the other codes of procedure, under theGuardianship of Infants Acts, the Summary Jurisdiction Acts and the successive Childrens Acts, were developed on a mainly local basis, depending upon local courts and local authorities, but with variously restricted powers, The potential for conflict of jurisdiction between the various courts is obviously high and likely to increase, so long as the different procedures remain uncoordinated. The High Court must, therefore, exercise its wardship jurisdiction with great circumspection. The problem is how to circumscribe it.
The first principle is clear. It has been held repeatedly that this ancient jurisdiction can only be removed or curtailed by express statutory enactment, and there is no such relevant enactment: In Re M (1961) Chancery, 328 at page 345, and In Re Baker (1962) Chancery, 201. The question therefore in each case is whether in Lord Justice Pearson's words in In Re Baker at page 223 "the scope of the proper exercise of the jurisdiction" has been restricted. He went on to say: "In the absence of special circumstances, the court ought not to exercise its powers of control in a sphere of activity which has been entrusted by statute to a local authority". The same point has been made, although the language in which it is expressed has varied, in many of the subsequent cases. The difficulty with such phrases as "special circumstances" or "special reasons" is that they quickly come to be treated as terms of art and stereotyped. So, in subsequent cases the argument tends to concentrate on whether the circumstances of the: instant case can be brought within the stereotype, notwithstanding that, when originally used, these phrases were intended to indicate, not a particular kind of departure from the norm but that the extent or degree of departure was sufficient, or insufficient as the case may be, to justify the exercise of the wardship jurisdiction. The precise phrases used in the authorities are not, therefore, very helpful. It is better to try to discern the principles underlyingthe cases. These differ to some extent, depending on the character of the conflict.
In cases of conflict arising between the High Court and a foreign tribunal the principle is now clear, The court will be guided by one consideration only, namely the welfare of the child: In Re L (1974) 1 Weekly Law Reports, 250, This decision of the Court of Appeal follows directly from the principles laid down by the House of lords in J v. C (1970) Appeal Cases, 668, which finally established that Section 1 of the Guardianship of Infants Act, 1925 is to be given full and unqualified effect, namely, that in any proceedings before any court in which the custody, upbringing etc., of an infant is in issue, the welfare of the infant is to be regarded as the paramount consideration. In an earlier case, Official Solicitor v. K., (1965) Appeal Cases, 201, it was said that this principle applied to procedural matters as well as to substantive issues.
Where the conflict arose in the past between the jurisdiction of the Chancery Division in wardship proceedings and of the Divorce Division in divorce proceedings, it was resolved on the basis of forum conveniens. Generally speaking, the court which was first seized of the matter retained it unless there was some advantage to the child in continuing the wardship, notwithstanding an order in the Divorce Division. Some form of relief, for example, might be given more effectually in the Chancery Division, or some relevant change of circumstances might have occurred: Andrews v. Andrews (1958) Probate, 119 and re Andrews (infants) (1958) Chancery, 655.
In potential conflicts between the High Court and lower courts, the High Court will not permit the wardship procedure to be used simply as a form of appeal from the lower court, and will not accept jurisdiction unless there are special or good and convincing reasons for doing so. This is based on the concept: of comity and on thedesirability of preventing multiplicity of proceedings: re P (infants) (1967) All England Reports, 229, per Mr. Justice Stamp (as he then was) and re D (1973) family Division, per Mr. Justice Bagnall. In both these cases there had been procedural muddles or irregularities in the lower court, and in the latter the mother, having been refused legal aid to appeal to the Divisional Court of the Family Division had, for some unexplained reason, obtained legal aid to take wardship proceedings. In both cases the High Court decided to exercise jurisdiction. Both these decisions could also be justified on the principles of re L, that the welfare of the child called for the intervention of the High Court under its wardship jurisdiction for some special, in the sense of unusual, reason; something, in other words, going beyond the argument that the decision of the lower court was wrong. In the matrimonial jurisdiction it has been the practice for many years for the High Court, as a matter of course, to assume jurisdiction over children who are subject to orders made in magistrates1 courts, unless the parties prefer to retain the magistrates' order; Vigon v. Vigon & Kuttner, (1929) Probate, 157.
The third group of case is those arising under the Childrens Acts; i.e., the Children Act, 1948 and the Children and Young Persons...
To continue reading
Request your trial
-
Re E (Minors) (Care Proceedings: Wardship)
... ... v. Liverpool City Council (1982) A.C. 363 meant that the High Court did not have, or at any rate should not exercise, jurisdiction in wardship in a case of this nature. What then happened, it seems, was that, as the mother was content, and indeed accepted, that the children ... 18 In Re W (A Minor) 2 F.L.R.360 Sir John Arnold at page 361 said this: "There is no challenge to the ... ...
- M. v Humberside County Council
- Re C (A Minor) (Wardship: Jurisdiction)
-
Re "W" (A Minor)
...In "A" v. Liverpool City Council (supra) Lord Roskill suggested at page 378 that the decision of the Court of Appeal in Re "H" (A Minor) (1978) Fam. 65 could be supported on the basis that it was only by the invocation of the wardship jurisdiction that the result could be achieved which was......
-
NOTES OF CASES
...wardship should have the wide role for which the appellant contended. It was reasonably predictable that the Law Lords would uphold 8 [1978] Fam. 65, 75, 76. 9 119811 2 W.L.R. 952G. In holding that access is within the local authoritv’s discretionary power, their Lordships were following Re......