Re "M" and "H"—Minors
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE BALCOMBE |
| Judgment Date | 20 May 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0520-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 1987 |
| Docket Number | 87/0521 |
[1987] EWCA Civ J0520-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE CARDIFF COUNTY COURT
(MR. ASSISTANT RECORDER HARRINGTON)
Royal Courts of Justice,
Lord Justice Glidewell
and
Lord Justice Balcombe
87/0521
MR. MALCOLM BISHOP (instructed by N.G. Neal, Esq., Chief Solicitor, South Glamorgan County Council, Cardiff) appeared on behalf of the Appellant (Second Respondent).
MR. PHILIP DAVIES (instructed by Messrs. Edwards Geldard, Cardiff) appeared on behalf of the Respondent (Applicant).
This is an appeal by the second respondent, the South Glamorgan County Council, against an order made by Mr. Assistant Recorder Harrington, sitting in Cardiff County Court on 20th March this year, when he granted interim access to the applicant, Mr. Razaz Mohamed, to two children, F.M. and I.H., pending the final determination of the applicant's application for custody of those children.
The facts are a little complicated, but thanks to Mr. Bishop's most helpful chronology they can be recited reasonably shortly. Razaz Mohamed comes from The Yemen. He came to live in Cardiff in the 1970s. For some years in that decade he lived as man and wife with the first respondent to this application, Maria Hazam, who is respondent in name only because she has taken no part in the proceedings at all. She was then Maria Davis.
As a result of that association she bore three children of whom the applicant claims, and Maria Davis accepts and the Assistant Recorder found, that he is the father. The oldest of those three children who bears his father's name, Razaz Mohamed Junior, is now nearly 11 years of age. In this Court no issue as to him arises. The two younger children, F.M. and I.H. are a boy aged nearly 8 and a girl aged Just over 6 years.
Until about 1980 father, mother and the two boys lived together as a family. But when Maria Davis was pregnant with the little girl, the relationship between her and the applicant deteriorated. There seems, according to one of his affidavits, to have been a period when he spent some time with her and some time with his parents, who were also in Cardiff. But that relationship was terminated when on 16th December 1980 Maria Davis married a gentleman called Hazam. So she became, as she now is, Mrs. Hazam. When the younger child, I.H., was born she therefore took Mr. Hazam's surname, though it was accepted she was not his child. That marriage seems to have lasted a very short time, perhaps only a matter of months.
In 1982 the applicant went back to The Yemen for a time. On 29th July 1982 Maria Hazam, as she now was, put all three of her children into care of the County Council voluntarily, initially for a period of a month. But at the end of the month she refused to have them back and, despite the efforts of the officers of the County Council, the children remained in care. However in December 1982 she took back the oldest child, Razaz junior, but she left the other two in care.
In October 1983 Mrs. Hazam had a fourth child by another man and indeed, Jumping forward in time a bit, she had a fifth child in December 1985.
Going back to 1983, as a result of the mother's failure to take the children back out of care, on 3rd November 1983 the County Council, by a resolution made under the powers of section 3 of the Child Care Act 1980, assumed parental rights over the two children, the subject of this appeal, F.M. and I.H. However they gave Mrs. Hazam a further opportunity to restore the relationship between her and her children, but she showed little or no interest in doing so, and eventually the County Council terminated her right to access to the two children in September 1984. She has not in fact seen the children since May 1984, and the evidence shows that, apart from sending them birthday and Christmas cards, there is now no contact between mother and children. So the mother really disappears from the scene.
Meanwhile the two children have been living in a children's home, Nazareth House, which is a Roman Catholic home. I should say that the applicant is a devout Muslim.
Some time before May in 1984 the applicant returned to Cardiff. He did visit the two children at the home, on the last occasion when the mother visited them: in other words he accompanied her. Then he tried to visit them again a week later, but he turned up without appointment, failed to explain who he was and was not allowed to see them on that occasion.
On 11th March 1985 the applicant himself married a lady called Deborah Jane. They now have a child of their own and they are the tenants of a four-bedroomed council house.
Some time after the marriage, in July 1985, the mother, Mrs. Hazam, transferred Razaz Mohamed junior to her husband and his new wife, and that child has lived with them since. So the family there consists of Razaz aged 10, father and his wife and the baby.
In 1984 and 1985 the County Council were considering fostering F.M. and I.H. with a view to eventual adoption. However while they were considering this, the applicant made it clear that he wished to apply for custody of them. Eventually he made a formal application for custody of the two children on 4th September 1986. Pending the determination of that application the question of fostering them for eventual adoption has remained in abeyance and the children have stayed in the home.
Knowing of the applicant's desire to have custody of the children, in May 1985 he County Council assessed the applicant's and his wife's suitability and they arranged for them to have access to the two children on some 9 occasions in the autumn and winter of 1985/86. On most of those occasions the access was at the home. On two occasions it was at the home of the father and his wife. According to the County Council the access was by no means harmonious or successful, but that is in dispute, and we are not here concerned with the merits of the matter.
However as a result of that the County Council in January 1986 refused to agree any further access for the father to these two children, and decided to oppose his application for custody. They also decided to continue with their plans for fostering and adoption.
The custody application has not yet been heard, but pending its hearing the applicant made the application, which leads him to this Court, for interim access, and the Assistant Recorder on 20th March made an order for interim access, the details of which do not yet matter, because the operation of that order has been stayed pending the hearing of this appeal. In practical terms that means that the children have not seen their father since the early part of 1986.
Mr. Bishop for the County Council argued two alternative points before us. Firstly he aargued that the Assistant Recorder had no jurisdiction to make an order that the father should have access, and secondly, and alternatively, the Assistant Recorder erred in principle, because even if there is Jurisdiction it is one which the Court should normally not exercise in favour of granting an order for access.
It is right to say at once that neither of these arguments was advanced in the court below. So the learned Assistant Recorder did not have the benefit of any of the authorities to which we have been referred nor any of the arguments which we have heard. If he had, he might very well have come to a different conclusion. It is no discredit to him that he did not deal with the matters that are before us.
There was a question as to whether we should hear argument about Jurisdiction, since the points were not taken in the court below, particularly the argument as to whether the Assistant Recorder had erred in principle. But Mr. Davies for the father very sensibly and properly, in my view, accepted that it will be futile for this Court, being seized of the matter, not to pronounce upon the arguments that we have heard.
The origin of the jurisdiction, as I have already said, is to be found in section 3 of the Child Care Act 1980. Subsection (1), so far as material, provides: "Subject to the provisions of this Part of this Act, if it appears to a local authority in relation to any child who is in their care under section 2 of this Act—….. (b) that a parent of his—…. (iv) is of such habits or mode of life as to be unfit to have the care of the child, or (v) has so consistently failed without reasonable cause to discharge the obligations of a parent as to the unfit to have the care of the child..…the local authority may resolve that there shall vest in them the parental rights and duties with respect to that child…..". It is under that provision that the County Council has assumed the parental rights and duties in relation to these two children.
If a local authority passes such a resolution, then under subsection (2) they must serve notice in writing of the passing of the resolution on the person whose parental rights and duties have vested in them, and give to that person notice that he or she has a right to object to the resolution, which right is to be exercised within a month. If there is no objection, or if an objection is subsequently overruled, then the resolution comes into force. The mother here received notice, but did not object, and thus the resolution came into force.
"Parent" is defined in section 87(1) of the Act in terms which expressly excluded a father of an illegitimate child. So it follows that the applicant in the present case was not a person upon whom it was necessary for the County Council to serve notice of their resolution and was not a person who had any right to object to the County Council assuming the parental...
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