Re M and Another (Minors) (No. 1) (on Appeal from the Court of Appeal (Civil Division)); Re M and Another (Minors) (No. 2) (on Appeal from the Family Division of the High Court of Justice) (Consolidated Appeals)
| Jurisdiction | England & Wales |
| Judge | Lord Brandon of Oakbrook,Lord Elwyn-Jones,Lord Griffiths,Lord Goff of Chieveley,Lord Jauncey of Tullichettle |
| Judgment Date | 28 July 1988 |
| Judgment citation (vLex) | [1988] UKHL J0728-1 |
| Date | 28 July 1988 |
| Court | House of Lords |
[1988] UKHL J0728-1
House of Lords
Lord Brandon of Oakbrook
Lord Elwyn-Jones
Lord Griffiths
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
My Lords,
The appellant in these consolidated appeals ("the father") came originally from the Yemen and is of the Muslim faith. Between the early 1970's and 1980 the father and the first respondent ("the mother") lived together in Cardiff without being married. They had three children: two boys, R. and M., now aged 12 and 9 respectively, and a girl, H., now aged 7. In 1980, when the mother was pregnant with H., the relationship between her and the father deteriorated. In December 1980 the mother married another man, and when H. was born she was given the surname of the mother's husband, although it is recognised that she was not his child. The mother's marriage only lasted a few months, after which it broke down finally.
Because R., M. and H. were illegitimate the parental rights and duties with respect to them were under section 85(7) of the Children's Act 1975 vested in the mother alone to the exclusion of the father.
In 1982 the father went temporarily to the Yemen. On 29 July 1982 the second respondent, the South Glamorgan County Council ("the authority"), at the request of the mother, received all three children into voluntary care under section 2(1) of the Child Care Act 1980 ("the Act of 1980"). The father, being away in the Yemen, was not aware of this having happened. In December 1982 the mother took back the care of R. from the authority, as she was entitled to do under section 2(3) of the Act of 1980. M. and H., however, remained in the care of the authority.
On 3 November 1983 the authority, by a resolution passed by them under section 3(1) of the Act of 1980, assumed parental rights and duties with respect to M. and H. They did so on the ground specified in section 3(1)( b)(v), namely, that the mother had so consistently failed without reasonable cause to discharge the obligations of a parent as to be unfit to have the care of the two children concerned. The authority, as required by section 3(2), served notice of the passing of the resolution on the mother, as the person whose parental rights and duties had vested in the authority under the resolution. The authority were not required by any provision in section 3 to serve a similar notice on the father, because the parental rights and duties which the authority had assumed had not previously been vested in him but in the mother exclusively. The mother could under section 3(4) have served a counter-notice on the authority objecting to the resolution. If she had done so, the resolution would have lapsed temporarily and the authority would under section 3(5) have had to apply to a juvenile court to make an order under section 3(6) that the resolution should not lapse by reason of the service of the counter-notice. The mother, however, did not serve any counter-notice objecting to the resolution, with the result that the resolution remained in force. Subsequently the authority placed M. and H. in a Roman Catholic children's home.
The mother had access to M. and H. at the children's home until May 1984. By then the father had recently returned from the Yemen to Cardiff and learned what had happened to the three children. He accompanied the mother on the last occasion on which she had access to M. and H. in May 1984. Since then the mother has taken no interest in M. and H. and has ceased to play any significant part in their lives. As a result of her attitude the authority in 1984 and 1985 considered placing M. and H. with foster parents with a view to eventual adoption.
In March 1985 the father married a woman other than the mother. He and she had a child of their own and became tenants of a four-bedroomed council house in Cardiff. In July 1985, by arrangement between the mother and the father, the actual custody of R. was transferred by the mother to the father and his wife, of whose family he has since been a part.
The father, following his marriage and the establishment of his new home, informed the authority that he wished to take over from them the care of M. and H., so that they could live with him and his wife and become part of their family. On being informed of this the authority arranged for the father and his wife to have access to M. and H. on nine occasions in the autumn of 1985 and the winter of 1985-86, mostly at the children's home, but on two occasions also at the home of the father and his wife. The purpose of the authority in arranging this access was to enable them to assess the suitability of the father and his wife for having the care of M. and H. on a permanent basis. According to the authority the access was by no means harmonious or successful. This is disputed by the father but your Lordships are not here concerned with the merits of the matter. As a result of the view taken by the authority they refused from January 1986 any further access for the father to M. and H., and decided to continue with their plans for fostering and adoption.
The father still wished to take over the care of M. and H. from the authority, but the Act of 1980 provided no means by which he could challenge before a court the decision which the authority had made. The authority had power under section 5(3) to rescind the resolution previously passed by them under section 3(1), and then under section 2(3)( b) to arrange for the father, as a relative of M. and H. within the definition of that expression in section 87, to take over the care of them. In the authority's view, however, that would not have been in the best interests of M. and H. The mother, as the person who would, but for that resolution, have had the parental rights and duties with respect to M. and H., had the right under section 5(4)( b) to apply to a juvenile court for an order that the resolution should be determined so as to cease to have effect. The father, however, never having had any parental rights and duties with respect to M. and H., had no such right. Further, while the mother, if she had had access to M. and H. terminated or refused by the authority contrary to her wishes, could have applied to a juvenile court for an access order under sections 12B and 12C (as added by section 6 of, and Schedule 1 to, the Health and Social Services and Social Security Adjudications Act 1983), because she was their parent, the father, being neither a parent or guardian of M. and H. as these two expressions are defined in section 87, nor their custodian, had no such right.
In this situation the father on 4 September 1986 issued an originating summons in the Cardiff County Court, in which he was named as applicant, the mother as first respondent and the authority as second respondent. The summons was headed "In the matter of the Guardianship of Minors Acts 1971 and 1973," and in it the father applied for the legal custody of, and access to, R., M., and H. Since the father already had actual custody of R., the reference to him in the summons was only a formality and can for present purposes be disregarded. Affidavits were filed on behalf of both the father and the authority, which opposed the application, but the mother has taken no part in the proceedings at any stage.
On 20 March 1987 Mr. Assistant Recorder P. J. Harrington made an order in the Cardiff County Court for interim access for the father to M. and H., pending a report by the court welfare officer which he directed to be obtained. The authority subsequently appealed against that access order to the Court of Appeal by leave of that court.
The appeal was heard by the Court of Appeal (Glidewell and Balcombe L.JJ.) [1987] 3 W.L.R. 759 on 20 May 1987. Counsel for the authority conceded that the assistant recorder had jurisdiction to make the order under sections 9 and 14 of the Guardianship of Minors Act 1971. He contended, however, that the assistant recorder was bound to exercise his discretion by refusing to make the order by reason of the principles laid down by your Lordships' House in A. v. Liverpool City Council [1982] A.C. 363 and In re W. (A Minor) (Wardship: Jurisdiction) [1985] A.C. 791 ("the A. and W. cases"). The Court of Appeal accepted this contention and by order dated 20 May 1987 allowed the appeal and set aside the access order. The court further ordered by consent that the father's application for legal custody should be transferred to the High Court, Family Division, Cardiff District Registry. It is right to record that the contention on which the authority succeeded before the Court of Appeal had not been advanced before the assistant recorder, so that he cannot be criticised for deciding the case before him without taking it into account.
The transferred application for legal custody was heard by Booth J. at Cardiff on 9 and 10 July 1987. It is not clear to what extent counsel for the authority pressed the contention that there was no jurisdiction to make the order sought, in addition to the contention that, if there was such jurisdiction, the court was bound by the A. and W. cases to exercise its discretion by refusing to make such order. In any case Booth J., in a reserved judgment delivered on 30 July 1987, held that she had jurisdiction to make an order giving legal custody to the father, but was bound by the A. and W. cases to exercise her discretion by refusing to do so. She went on to grant a certificate under section 12 of the Administration of Justice Act 1969 for the purpose of a leapfrog appeal to your Lordships' House.
The Court of Appeal had refused the father leave to appeal against its order...
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