Re M. (an Infant)

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE UPJOHN,LORD JUSTICE PEARSON
Judgment Date09 February 1961
Judgment citation (vLex)[1961] EWCA Civ J0209-4
Date09 February 1961
CourtCourt of Appeal

[1961] EWCA Civ J0209-4

In The Supreme Court of Judicature

Court of Appeal

Before

The Master of the Rolls (Lord Evershed)

Lord Justice Upjohn and

Lord Justice Pearson

and
In the Matter of an Infant

MR JOHN MAY (instructed by Messrs Preston, Lane-Claypon & O'Kelly, Agents for Messrs Southa 11 & Co., Birmingham) appeared as Counsel for the Appellant.

MR F. P. NEILL (instructed by Messrs Sharps Pritchard & Co., Agents for Mr T. H. Parkinson, Birmingham) appeared as Counsel for the Birmingham Corporation.

THE MASTER OF THE ROLLS
1

: This appeal raises an important question, namely, whether on the facts of the case the terms of the Children Act 1948 are by necessary implication such as to restrict the ancient prerogative of the Crown as parens patrias as regards infants (now exercisable by way of ward of Court procedure in the Chancery Division, the procedure invoked by the present summons) and so to justify the conclusion of Mr Justice Cross in declaring that the infant ceased to be a ward.

2

The facts of the case are as follows: the Infant, an illegitimate boy, was born on the 10th July 1952. About two years later the boy's mother rang the bell on the appellant's door and asked for information about lodgings for herself and the child. The appellant; who had never seen the mother before, out of the kindness of her heart offered; while the lodgings were found, herself to look after the child - as she supposed, for a few days. But though there was some further information about the mother, for practical purposes she then disappeared altogether from the scene. In April 1956, that is some year and a half or more afterwards, the appellant informed the Birmingham Corporation authorities of the presence with her of this child, and on the 13th of that month the child was, by virtue of the powers under the 1948 Act, formally taken into the care of the Corporation and formally boarded out with the appellant. The appellant signed, in accordance with the appropriate regulations, an undertaking to return the child on demand to the Corporation. The appellant was then married: her husband was living, and there were several children of the marriage. In April 1957 the appellant's husband died. On the 25th October 1957 the Corporation took a further step by virtue of Section 2 of the 1948 Act, that is to say, they appropriately resolved to assume in regard to the child parental rights; but its boarding out with the appellant continued as before. So we come to June 1960 in which month the Corporation requested, in accordance with the terms of the undertaking, that the foster mother should return the child to the Corporation. No reasons were given to the foster mother by the Corporation. In August 1960 the foster mother not having complied with that demand, application was made by the Corporation to Mr Justice Buckley sitting as Vacation Judge for leave to issue a habeas corpus summons and that leave was given, the hearing of the summons being later adjourned until the 19th October. Five days before that date, namely, on the 14th October the foster mother took out a summons in the Chancery Division of the High Court entitled in the Law Reform (Miscellaneous Provisions) Act 1949 asking for an order that the infant be made a ward of court and for directions as to the custody, care and control of the infant.

3

The relevant terms of Section 9 of the Law Reform (Miscellaneous Provisions) Act 1949 are as follows: "(1) Subject to the provisions of this section, no infant shall be made a ward of court except by virtue of an order to that effect made by the court". But Sub-section (2) provides: "Where application is made for such an order in respect of an infant, the infant shall become a ward of court on the making of the application, but shall cease to be a ward of court" at the expiration of the time therein stated, a period inapplicable to the present case. Sub-section (3): "The court may, either upon an application in that behalf or without such an application, order that any infant who is for the time being a ward of court shall cease to be a ward of court". I for my part reject the argument of Mr Neill that the section which I have read, being merely procedural, should be limited to apply only to some infants, a class which Mr Neill did not attempt to define but which he said must be such as to exclude in any event infants in respect of whom the local authority has exercised its powers under the Children Act 1948. It seems to me that Section 9 of the 1949 Act is quite general and clear in its terms, with the consequence that upon the issue of a summons as provided by the section, a child becomes a ward and so remains unless and until either (a) the Court sets aside the proceedings altogether – as it would in the case of an infant for whom his parent successfully claims diplomatic privilege, see Re C., 1958, 2 All England Reports, p. 656, or (b) at the expiration of the period indicated in sub-section (2) which is not relevant for present purposes, or when the Court makes an order, as was done in this case, that the infant ceases to be a ward.

4

The jurisdiction of the Chancery Division in regard to infants is ancient and has proved itself most salutary. It is a jurisdiction not from its nature and origin to be lightly cut down. On the other hand, there is no doubt that in recent years and in light of modern conditions, including the unhappy fact of there being between 20,000 and 30,000 divorces in every year, the many statutes passed by Parliament for the benefit of children are a recognition of the obligation of the State to take positive measures, and in many cases precisely formulated measures, for the care and upbringing of young children whose circumstances to-day may be unhappy but who will be the citizens of tomorrow. To a number of such statutes we have been referred, but having already alluded to the Act of 1949 I shall now confine myself to the Act of 1948, with which we are particularly concerned.

5

The main part of Mr May's argument was simple in its nature: it was that the ancient prerogative will not be held by the courts to be ousted or restricted by any statute unless the statute in question does so expressly or by clear implication of its terms. That general proposition I accept, for it is well established (see, for example, the language of Lord Justice Lindley in Wheaton v. Maple & Co., 1895, 3 Chancery at p. 64). On the other hand, the necessary clear inference may be drawn when a statute deals with a matter subject to the exercise of the Royal prerogative and provides in precise terms a new means of securing the same result. In that connection I refer to the passage in the Speech of Lord Sumner to which our attention was directed in argument. It was the Speech in the case of Attorney-General v. De Koyser's Royal Hotel, reported in 1920 Appeal Cases, p. 508, the passage which I am about to read being found at page 561. "The appellant", said Lord Sumner, "further contended that all that was done could be done, and was done, independently of any statute, by virtue of the Royal prerogative alone. I do not think that the precise extent of the prerogative need now be dealt with. The legislature, by appropriate enactment, can deal with such a subject matter as that now in question in such a way as to abate such portions of the prerogative as apply to it. It seems also to be obvious that enact-ments may have this effect, provided they directly deal with the subject matter, oven though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative. If a statute merely recorded existing inherent powers, nothing would be gained by the enactment, for nothing would be added to the existing law. There is no object in dealing by statute with the same subject matter as is already dealt with by the prerogative, unless it be either to limit or at least to vary its exercise, or to provide an additional mode of attaining the same object".

6

What then is the effect of the relevant language of the Children Act 1948? In all the circumstances of this case and its importance, I shall be excused for making some substantial citations from it. Section 1, sub-section (1), being the first section of Part I of the Act with the cross heading "Duty of local authorities to assume care of children", provides: "Where it appears to a local authority with respect to a child in their area.…(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian…and (c) that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section". Sub-section (3): "Where a local authority have received a child into their care under this section, it shall be their duty to keep the child in their care so long as the welfare of the child appears to them to require it"...

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