Re KDT (A Minor) (Care Order: Conditions)
| Jurisdiction | England & Wales |
| Judgment Date | 29 April 1994 |
| Court | Court of Appeal (Civil Division) |
Nourse, LJ and Wall, J
Care proceedings – duty of court to scrutinize proposed care plan of local authority – if court did not agree with plan it could refuse to make a care order.
Care proceedings – interim order – Judge giving direction that child be placed with parents – jurisdiction to do so queried but local authority wise to accept that court had jurisdiction.
Care order – power of court – whether court could impose conditions in a care order.
Child – care proceedings – tension between responsibilities of local authority when care order made and duty of court to regard child's welfare as paramount – court to consider welfare of child before deciding to make care order.
A boy born in March 1993 was the mother's eighth child. The other seven children were all girls. The five eldest girls were children of the mother's first marriage which broke up in November 1987. In April 1988 the mother began a relationship with another man ("the father"). The two younger girls and the boy were the children of this man. In July 1988 the mother was divorced from her first husband and she was given custody of the five children of the marriage. During the next four years there were repeated signs of injury to one or other of the children. In February 1989 (before the younger children were born) the mother's five children were placed on the local authority's child abuse register. In June 1989 the mother was cautioned for assaulting the eldest child. Subsequently, the father was given a conditional discharge for assaulting one of the children and in 1990 he was sentenced to six months' imprisonment for assaulting the eldest child. The local authority found that despite the chaotic state in which the family lived, the children obviously loved one another. The guardian ad litem saw the children before the father was released from prison in October 1990 and reported that all the children, including the eldest, who had been assaulted, appeared happy about his impending return home. He appeared to bring some cohesion to the family's life which the mother, who had a child-like nature, seemed unable to do.
Two girls were born to the father and the mother in 1989 and 1990 (and the boy was born in March 1993).
In December 1991 the youngest girl was seen to have a swelling to the temple and eye. The father was arrested. The mother and children went to stay with a neighbour. Whilst there the two eldest girls made allegations of sexual abuse by the father. The father was
charged with assault occasioning actual bodily harm to the youngest child and with indecent assault of the two eldest girls. The father was bailed subject to conditions that he did not go to the family home or contact the children. All the charges were eventually withdrawn for lack of medical evidence.
The local authority were concerned at the idea of the father returning home. They obtained emergency protection orders and subsequently interim care orders in March 1992. The seven girls were placed with foster-parents. The substantive hearing took place in June and July 1992 when the Judge found that the father had sexually abused the two eldest children. At that hearing the mother assured the Judge that her relationship with the father was over. As a result the Judge was satisfied that the children could return to a home where the abuser was not living and, inter alia, he made residence orders in favour of the mother, a prohibited steps order preventing the father from visiting the home, interim supervision orders, and a direction that the local authority carried out an assessment of each child's welfare under s 38(6) of the Children Act 1989. However, by October 1992 the mother and father were living together again and the mother was pregnant with the boy. The Judge made care orders in respect of the seven girls.
When the boy was born in March 1993 the local authority obtained an emergency protection order and subsequent interim care orders were made. The boy was placed with foster-parents. The substantive hearing came before the Judge in June 1993. The case for the local authority was that the boy should be placed for adoption and that case was supported by the guardian ad litem. The Judge held that from the evidence it was impossible to draw any firm conclusions about how the father would behave towards the boy from the evidence of how he had behaved towards the older girls. The Judge was also concerned about the mother's capacity to care for the boy. He therefore made a further interim care order and directed the local authority to carry out an assessment under s 38(6) of the Children Act 1989 while the boy was living at home with the parents. The boy then aged three months, returned home to his parents on 1 July 1993 and had remained there ever since.
The final hearing took place in November 1993. By that time the parents had married and their physical care of the boy had been excellent. The Judge found that the parents were more than capable of looking after the boy. He stated that he had heard nothing which convinced him that the father would mistreat the boy and he found that there was a real, albeit low, risk of sexual abuse. He found that the threshold criteria in s 31 of the 1989 Act had been met but that the level of risk was not such as to require the removal of the child from the family but sufficient to justify the making of a supervision order. He made a supervision order for 12 months. He also imposed conditions pursuant to para 2(1)(b) and (c) and para 3(1)(a) and (c) of Sch 3 to the 1989 Act. Those conditions were not specified in the order but were set out in a letter from a social worker to the parents.
The local authority appealed submitting that the circumstances justified the removal of the boy from his family into the care of the local authority with a view to his subsequent adoption outside the family. The guardian ad litem, who had supported the local authority before the Judge, had changed her view. She had filed a further report, which was admitted as fresh evidence, in which she described the boy as a thriving happy child who had bonded with his parents. She was therefore of opinion that a care order should be made but that the child should remain at home. Counsel for the guardian ad litem and counsel for the parents submitted that the court had power to make a care order with a condition of residence or requiring the local authority to place the child at home. Counsel for the local authority submitted that the court had no power to direct the local authority as to the implementation of their care plan or to impose conditions on a care order.
Held – (1) Where, before the implementation of the Children Act 1989, a child was committed to care under s 7 of the Family Law Reform Act 1969 by a Judge exercising the wardship jurisdiction, the Judge was able to make directions and require the case to return for further consideration by the court. The combined effect of the repeal of s 7 of the 1969 Act and the enactment of s 100(2) of the 1989 Act (which, inter alia, prohibited the exercise of the High Court's jurisdiction so as to require a child to be placed in the care of a local authority) was to make entry by way of s 31 of the 1989 Act the only route into care. The only order the court was empowered to make under s 31 was an order placing the child in care and it was clear that the court had no power to impose any conditions in a care order.
Re B (Children in Care: Contact)[1993] 1 FCR 363 followed; Re CN (A Minor) (Care Order)[1992] 2 FCR 401 approved.
(2) In the Children Act 1989 there was tension between s 31, which left the administration of a care order to the local authority, and s 1(1), which required the court to treat the welfare of the child as paramount. In Nottinghamshire County Council v P[1994] 1 FCR 624 deep concern was expressed at the absence of any power of the court to direct a local authority to take steps to protect particular children. As the court only had power to make a care order, and no power to impose conditions, the welfare of the child had to be considered before a care order was made. Section 1(5) of the Act provided that the court should not make a care order unless it considered that doing so would be better for the child than making no order at all. Further, by s 1(3) and (4)(b), where the court was considering whether to make a care order, it should have regard in particular to the matters in s 1(3) and in carrying out that exercise the court would be applying the welfare principle in s 1(1).
(3) It was the duty of any court hearing an application for a care order carefully to scrutinize the local authority's care plan. If it did not agree with the care plan it could refuse to make a care order.
Re K (Minors) (Care Proceedings: Care Plan)[1994] 2 FCR 136 approved.
(4) In the present case the Judge was plainly correct to find that the threshold criteria in s 31 of the 1989 Act had been met. He was entitled on the evidence to find both that the child's welfare required him to remain in the care of his parents and that the risk of further abuse was not so great as to displace the proposition that it was in his interest to live at home. On the material before him the Judge was entitled to make a supervision order rather than a care order.
(5) The form of a supervision order in this case was unsatisfactory. Where conditions were imposed under a supervision order, those conditions should be apparent on the face of the order.
Per curiam: When making the interim order in June 1993 the Judge had effectively directed the local authority to place the child with his parents. Counsel for the authority had reserved his position on the Judge's jurisdiction to make such an order. In the circumstances, the local authority were wise to accept the court's jurisdiction to give directions to them in the context of an interim order made under s 38 of the 1989 Act: see observations of Waite, LJ in Re G (Minors) (Interim Care...
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