Re H. (Minors) (Local Authority: Parental Rights)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE,LORD JUSTICE NICHOLLS |
| Judgment Date | 11 April 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0411-1 |
| Docket Number | 89/0344 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 April 1989 |
[1989] EWCA Civ J0411-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SLOUGH COUNTY COURT
(HIS HONOUR JUDGE MARDER)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Balcombe
Lord Justice Nicholls
89/0344
Mr. R. J. SEABROOK Q.c. and Miss S. E. SMITH (instructed By Messrs. Winter-taylors, High Wycombe, Bucks.) Appeared For The Appellant (father).
Mr. B. P. JUBB (instructed By Messrs. Kidd Rapinet, Maidenhead, Berks.) Appeared For The Appellant (mother).
Miss A. M. RYAN Q.C. and MISS MHAIRI McNAB (instructed By Messrs. Griffiths Robertson, Heading, Berks., Agents For The County Secretariat, Berkshire County Council) Appeared For The Respondent (local Authority).
I will ask Lord Justice Balcombe to deliver the first judgment.
This is an appeal with the leave of the judge from a decision of Judge Marder given in the Slough County Court on 25th October 1988 on a preliminary point of law on an application by a local authority to free two young children for adoption. There is also before us by amendment an appeal by the putative father of these children against a refusal of the judge to grant him custody of those children under the Guardianship of Minors Act 1971.
The facts are these. In the spring of 1981 the parents of these two children met and began to live together but they never married. On 18th October 1982 a boy was born and on 27th December 1983 a girl was born, so the boy is now six and a half years old and the girl is a little over five. They lived together as a family unit until February 1985 when the father left the home, and on 24th March 1985 the mother left the children in the care of her parents, who contacted the local authority's Social Services Department. On 25th March 1985 a place of safety order was made in respect of both children.
On 23rd May 1985 the local authority's application to the Juvenile Court for a care order was refused, but then the children were received into voluntary care at the request of the mother under section 2 of the Child Care Act 1980. In December 1985 the mother gave a 28 day notice for the return of the children to her but she withdrew that notice on 6th January 1986. On 27th August 1987 the local authority passed a parental rights resolution in respect of the mother's rights under section 3 of the Child Care Act 1980. It will, of course, be appreciated that as at that time the father had no parental rights as such because he and the mother had not married.
In the meantime, the children, who have been in the care of foster parents, were visited regularly by the father, with rather less regularity by the mother, and, indeed, by other relatives as well. But the local authority, for reasons which no doubt seemed good to them, decided that these children needed a more permanent base and, therefore, as a preliminary to that, gave notice to the father on 4th November 1987 that his access to the children would be terminated as from January 1988. Similarly, in December 1987 the mother's access was also terminated.
In February 1988 the children were introduced to prospective adopters, but that particular introduction broke down and the children went back to the original foster parents. On 17th March 1988 the local authority made an application to the local county court to free both children for adoption. On 24th May 1988 the father made an application under the Guardianship of Minors Act for custody and access to both children. The significance of that application will become apparent in a moment. Then in September 1988 introductions began for the children to a new adoptive family and on 1st October 1988 the children were placed with that new adoptive family. As far as I am aware, they still are there.
The local authority's application to free the children for adoption and the father's application under the Guardianship of Minors Act for custody and access came before Judge Harder at the Slough County Court on 25th October of last year.
With those introductory facts I turn now to consider the relevant statutory provision, which is section 18 of the Adoption Act 1976. Subsection (1) of that section is to the following effect:
"Where, on an application by an adoption agency"
—I pause there to interpolate that a local authority is included in that phrase—
"an authorised court is satisfied in the case of each parent or guardian of the child that—
(a) he freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or
(b) his agreement to the making of an adoption order should be dispensed with on a ground specified in section 16(2),
the court shall make an order declaring the child free for adoption."
As far as the mother is concerned—who is the only person at that stage who could be called a parent—the local authority was and is applying that her agreement should be dispensed with.
Then I turn to subsection (7) as it was originally drafted:
"Before making an order under this section in the case of an illegitimate child whose father is not its guardian, the court shall satisfy itself in relation to any person claiming to be the father that either—
(a) he has no intention of applying for custody of the child under section 9 of the Guardianship of Minors Act 1971, or
(b) (b)if he did apply for custody under that section the application would be likely to be refused."
One needs to consider that subsection in conjunction with the definition section of the Adoption Act, namely section 72, and the definition of the word "guardian", which under paragraph (b) of the definition as it was originally drafted read:
"'guardian' means—…(b) in the case of an illegitimate child, includes the father where he has custody of the child by virtue of an order under section 9 of the Guardianship of Minors Act 1971, or under section 2 of the Illegitimate Children (Scotland) Act 1930."
So it can be seen how the provisions of section 18, dovetailed. If the father had a custody order under the Guardianship of Minors Act, he was deemed to he the guardian and, therefore, his consent to the order freeing the child for adoption was either needed or had to be dispensed with under section 16(2). But if, at the time of the application, the matter had not proceeded that far because he had no order under section 9 of the Guardianship of Minors Act, subsection (7) provided that the court must first satisfy itself that he either had no intention of applying for custody or, if he did apply for custody, it would have been likely to be refused. That was how the section stood as at the date of the hearing before Judge Marder.
He was also referred to a recent decision of the House of Lords in In re M. and H. (Minors) (Local Authority: Parental Bights) (1988) 3 W.L.E. 485. I think I need refer only to the relevant part of the headnote:
"Held, dismissing the appeals, that the jurisdiction of the court under section 9 of the Guardianship of Minors Act 1971, to entertain applications by the mother or the father of a minor for the legal custody of, or access to, such minor, was not limited to applications by one parent against the other but extended to applications by one parent against a third party, including a local authority having the care of the minor pursuant to a resolution made under section 3(1) of the Child Care Act 1980; but that, though the court had jurisdiction to entertain the father's applications for access and custody, it could not exercise that jurisdiction to review the merits of decisions made by the local authority in pursuance of their statutory powers to make decisions about...
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