Re A (A Minor) (Care Proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Family Division |
BOOTH, J
Appeal – fresh evidence – how appellate court should deal with fresh evidence.
Care proceedings – delay – delay ordinarily inimical to welfare of child – benefits of planned and purposeful delay.
Care proceedings – guardian ad litem appointed – whether appropriate for court also to request report from welfare officer.
Care proceedings – order – court should make final decision only when all facts clearly known – where assessment of parent not completed interim decision required.
Care order – not to be made until all facts known – court's responsibility to consider all relevant facts before making order.
The parents married in 1989 and separated in August 1991. There was one child of the marriage, a girl born in May 1990. When the parties separated, the child stayed with the mother. The mother had a drink problem, being dependent upon alcohol. This led to the child being left alone and unsupervised for long periods of time. In December 1991 the local authority applied for a care order. Subsequently, the father applied for a residence order. He proposed that the child should go to live with him and a lady with whom he was cohabiting. The father was visiting the child regularly, there appeared to be a good and developing relationship between him and the child, and the local authority were in the process of assessing him and his cohabitee as full time carers of the child. At the commencement of the hearing the father applied for an adjournment but this was refused. The family proceedings court made a care order but did not formally adjudicate on the father's application for a residence order. In their reasons the magistrates stated that they could not make any decision as to the future placement of the child as that required further assessment and that they could not be sure of the father's ability to care for the child until the assessment was complete.
The father appealed.
At the hearing of the appeal fresh evidence was admitted. The father's relationship with his cohabitee had broken down but he had continued to see the child regularly and continued to seek a residence order.
Held – allowing the appeal: (1) Although the magistrates did not formally adjudicate on the father's application for a residence order, if the care order were to stand then the
father's application would be deemed to be dismissed. However, the magistrates were wrong to make a care order when the assessment of the father as a full time carer of the child had not been completed. The magistrates were required to determine the father's application for a residence order. They lacked the material evidence on which to do so. It was clear that the evidence would be forthcoming on the completion of the assessment which was in progress at the time of the hearing. The function of the court was to consider all the facts presented to it by the local authority and to make a decision finally disposing of the case only when all of those facts were as clearly known to the court as could be hoped. That stage had not been reached as the family proceedings court did not know what the result of the assessment would be. It was proper for the family proceedings court to adjudicate upon the father's application and not leave the outcome of it to the local authority. Although delay was ordinarily inimical to the welfare of the child, planned and purposeful delay might well be beneficial. The child would be quite properly protected by an interim care order. In the circumstances, the proper and most appropriate order was an interim order leading to a resumed hearing on completion of the local authority's assessment.
Observations of Ward, J in Re C (A Minor) (Care Proceedings)[1992] 2 FCR 341 at pp 353H to 354G and 357B adopted.
(2) Fresh evidence admitted at the hearing of the appeal showed that the father's relationship with his cohabitee had broken down. However, the fresh evidence did not lead to a different conclusion from that of remitting the case to the family proceedings court. Although the father's position was more difficult, he remained a loving father with a good relationship with his daughter and he remained committed to attempting to undertake her care. The court should always be slow to make a full care order which placed the responsibility for a child with a local authority. That could have great implications in this case because the local authority had indicated that they were considering placing the child for adoption. Even in the light of the new evidence there was no good reason for the court to substitute a care order for the interim care order which the family proceedings court should have made. The care order made by the family proceedings court would be set aside and an interim care order would be substituted. The local authority's application for a care order and the father's application for a residence order would be remitted to the family proceedings court as adjourned matters.
(3) The circumstances did not justify requesting a welfare officer to investigate and report in addition to the further investigation and report which the guardian ad litem would undertake.
Re S (A Minor) (Care Proceedings: Reports)[1992] 2 FCR 554 followed.
Cases referred to:Re C (A Minor) (Care Proceedings)[1992] 2 FCR 341.
Croydon London Borough v A and B[1992] 2 FCR 481.
Re S (A Minor) (Care Proceedings: Reports)[1992] 2 FCR 554.
AppealAppeal from Brentford family proceedings court.
Rodger Hayward Smith, QC and Angela Simons for the father.
Usha Teji for the local authority.
Kate Hudson for the child.
MRS JUSTICE BOOTH.This is an appeal by the father of a little girl from a care order made by the Brentford family proceedings court on 21 May 1992.
The mother, to whom the father is married, has not appeared in this court or been represented. She was, I am told, represented before the family proceedings court but did not herself give evidence or attend. The other parties to the appeal are the London Borough of Hounslow into whose care the child has been committed, and the child herself, represented by her guardian ad litem.
The facts of the matter can be briefly stated. The mother and the father were married in February 1989 at which time the mother had two children by different men – a boy who is aged 14 and living with his father – and another son who was aged 11 and then living with her. That boy was in fact a child with whom the Brentford family proceedings court was also concerned but he does not figure in this appeal.
The London borough had been involved with the mother since 1987 because she had a drink problem. She was dependent upon alcohol. On 3 May 1990 the child was born. The cohabitation of the mother and the father did not last long. The father left home in August 1991 leaving his daughter and his step-son with their mother. On 23 August 1991 a place of safety order was obtained by the London borough in respect of both children. They were in care for a little while. They went back to their mother and then they were in voluntary care for a short time in October 1991 and again from 1 November until 9 December 1991. On 24 December 1991 the local authority applied for a care order at which time the child was living with foster parents.
On 6 May 1992 the father made an application for a residence order. By that time there had been five interim care orders. The child had continued to live with foster parents but the father was proposing that she should go to live with him and with a Mrs S and her two children with whom he had established a household. The father was then seeing the child regularly, taking her out from the foster home and visiting her there and there appeared to be a good and developing relationship between father and daughter. Because of that, the local authority were in the process of assessing the father and Mrs S as full time carers for the child.
That was the situation when the matter came before the justices. They heard evidence from the social worker concerned with the child, Miss Jill Curzon; from a consultant psychologist in relation to the mother's drink problem, from the father himself and from Mrs S; and also from the guardian ad litem.
The guardian ad litem had filed a report on 27 April 1992, which was prior to the father's application for a residence order. He recommended a care order but on the basis that every attempt should be made to rehabilitate the child with her mother. At the time he made that report there was no question of the father seeking her care and therefore the guardian had not investigated the father's situation or attempted any assessment. He gave oral evidence to the justices. It was by that time apparent that the mother who...
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