Re M (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Simon,Lord Justice Laws |
| Judgment Date | 09 September 2016 |
| Neutral Citation | [2016] EWCA Civ 937 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 September 2016 |
| Docket Number | Case No: B4/2016/1870 |
[2016] EWCA Civ 937
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, FAMILY DIVISION Mrs Justice Hogg
ZW14C00228
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice McFarlane
and
Lord Justice Simon
Case No: B4/2016/1870
Ms Tina Cook QC and Mr Chris Barnes (instructed by FMW Law) for the Appellant
Mr Roger McCarthy QC (instructed by London Borough of Brent) for the First respondent
Miss Jane Rayson (instructed by Harris Temperley LLP) for the Second respondent
Hearing date: 31 st August 2016
Approved Judgment
The issue in the present appeal relates to the extent of the court's jurisdiction, if any, to make orders in wardship and/or under the inherent jurisdiction for the accommodation of a young person who is 17 years of age.
The factual circumstances of the case can be shortly stated. The subject child, a girl, T, was born in September 1998; she will therefore become 18 years of age during the next few weeks and no longer fall within the definition of a "child" for the purposes of the Children Act l989, s 105 ("CA 1989"). T, together with her two younger siblings, has been the subject of care proceedings since September 2014. Those proceedings arose as a consequence of allegations of sexual abuse made by T against her older brother. At the start of the proceedings T and her younger sister were removed to foster care under interim care orders with their younger brother following a similar course some months later.
T has the burden of suffering from a significant learning disability with her overall IQ being assessed at 41. In addition she has been diagnosed as suffering from post traumatic stress disorder as a consequence of the sexual abuse that she has alleged.
There is no jurisdiction under CA l989 to make a care order with respect to a child who has reached the age of 17 (or 16, in the case of a child who is married) (CA l989, s 31(3)). That provision applies to an interim care order just as much as it does to a final care order (CA l989, s 31 (11)). In consequence, shortly before T's 17th birthday, at which time the final interim care order expired, the local authority issued wardship proceedings making T a ward of court. Without prejudice to their ability to argue the point at the final hearing, the parents did not challenge those proceedings at that time, with the result that, upon the issue of the originating summons, T automatically became a ward of court in August 2015.
The fact finding hearing with respect to the sexual abuse allegations was conducted over a number of weeks in front of Mrs Justice Hogg in the latter part of 2015 and resulted in a full fact finding judgment handed down on 18 th December 2015. In that judgment Hogg J found that T and her sister had been sexually abused by their elder brother in the family home on numerous occasions over a significant period. She found that the parents were aware of the sexual abuse of the girls by their brother and that they had failed to protect their children by seeking to remove the brother or obtaining professional help. The judge also found that the father had "silenced" the children by instructing them not to tell of the abuse. In addition the judge found that the father drank alcohol to excess, was drunk within the home, and at times was physically abusive and frightening towards his children.
At the conclusion of the final stage of the proceedings, during which the plans for the future care of the children were considered, Hogg J concluded that it was in the best interests of all three children to remain in foster care and not to return to the home of either or both parents. In the present appeal there is no challenge to the judge's welfare determination. The narrow, but not unimportant, issue on appeal relates to the court's jurisdiction to make orders providing for T to be kept in local authority foster care in circumstances where, because she is 17 years old, the court no longer has jurisdiction to make a care order. Before turning to the judge's decision on this point it is necessary to describe the statutory context in more detail.
Statutory context
Provided that the threshold criteria in CA l989, s 31(2) are satisfied, s 31(1) establishes that the court may, following an application made by any local authority or authorised person, make an order "placing the child with respect to whom the application is made in the care of a designated local authority".
CA l989, s 105(1) provides that "child" means "a person under the age of 18". However, s 31(3) provides that:
"No care order or supervision order may be made with respect to a child who has reached the age of 17 (or 16, in the case of a child who is married)."
Where a care order has been made prior to a child's 17 th birthday, CA l989, s 91(12) provides that the care order:
"shall continue in force until the child reaches the age of 18, unless it is brought to an end earlier."
It is common ground before this court that, as T was over the age of 17 by the time the judge came to make final orders, there was no jurisdiction to make a care or supervision order with respect to her in consequence of s 31(3), notwithstanding that if a final order had been made prior to her 17 th birthday it would have continued to be in force until the age of 18 years (unless it had been brought to an end earlier).
As a consequence of the court's inability to make a statutory care order, attention focussed upon the possible availability of orders made in wardship and/or under the High Court's inherent jurisdiction, the exercise of which is substantially curtailed by CA l989, s 100(2) to (5) which provide:
"(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—
(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;
(b) so as to require a child to be accommodated by or on behalf of a local authority;
(c) so as to make a child who is the subject of a care order a ward of court; or
(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.
(4) The court may only grant leave if it is satisfied that—
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
(5) This subsection applies to any order—
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and
(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."
Finally, in terms of describing the statutory context, it is necessary to make reference to CA l989, s 20 which deals with the provision of accommodation for children by a local authority. The relevant provisions of CA l989, s 20 are:
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
(7) A local authority may not provide accommodation under this section for any child if any person who—
(a) has parental responsibility for him; and
(b) is willing and able to—
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
(9) Subsections (7) and (8) do not apply while any person—
(a) who is named in a child arrangements order as a person with whom the child is to live;]
(aa) who is a special guardian of the child; or]
(b) who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children,
agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
(10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree.
(11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section."
The judge's judgment
The main body of the judge's judgment is taken up with a detailed analysis of the evidence relating to the welfare of the three...
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