Re E (Minors) (Care Proceedings: Wardship)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE DUNN |
| Judgment Date | 24 January 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0124-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 1983 |
| Docket Number | 83/0040 |
[1983] EWCA Civ J0124-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PORTSMOUTH DISTRICT REGISTRY
MR. JUSTICE BALCOMBE
Royal Courts of Justice
Lord Justice Eveleigh
Lord Justice Dunn
83/0040
MR. W. H. WEBSTER (instructed by Messrs. Coffin Mew & Co., Gosport, Hants.) appeared on behalf of the Appellant Mother.
MRS. L. H. DAVIES (instructed by the Solicitor to the Hampshire County Council) appeared on behalf of the Respondents.
I take the introduction to the facts of this case from the judgment of the learned judge almost verbatim. There are three children concerned: twin boys who were born on 27th August 1980 and who are therefore two years old, and a girl who was born on 30th November 1981 who is therefore one year old. On 19th May 1982 the Hampshire County Council, as the appropriate local authority, obtained a Place of Safety Order from the Juvenile Court and had, on 28th May 1982, initiated proceedings under section 1 of the Children and Young persons Act 1969 before the Juvenile Court, applying for a Care Order in relation to each of those children. They had been placed with foster parents. That application was due to be heard by the Gosport Juvenile Court on 9th June 1982. However, on 8th June 1982 wardship proceedings were initiated naming the mother and the father of these children as the first and second plaintiff, and the Hampshire County Council as the defendants, asking for an order that the three children be made wards of court and that care and control should be committed to the mother, with the supervision to the County Council. On 9th June those proceedings were withdrawn. The father, in fact, has taken no part in these proceedings, and Mr. Justice Balcombe made an order that he should be made a defendant rather than a plaintiff to the application.
The matter came before the District Registrar initially on 8th July 1982 when the solicitor for the County Council took the point that the decision of the Court of Appeal in the case of A. v. Liverpool City Council (1982) A.C. 363 meant that the High Court did not have, or at any rate should not exercise, jurisdiction in wardship in a case of this nature. What then happened, it seems, was that, as the mother was content, and indeed accepted, that the children should, for the time being, be where they were, the Registrar took the view that there was nothing to be gained by making a ruling on the jurisdiction question, and accordingly made an order pursuant to section 7(2) of the Family Law Reform Act 1969 that the children should remain wards of court and they should in the interim remain in the care and control of the County Council. He made provision for access by the mother, which was subsequently varied in a matter of detail in August to provide for weekly access.
It was argued in the court below and here that the present case is not governed by and is not affected by the Liverpool City Council case because, it is said, in that case an order had been made, whereas in this case there was not an order in existence committing the children to the care of the local authority, and the argument took the line of the grounds of appeal that had been argued in this court. Putting those grounds in what I might call their order of importance, the first, which is (e) of the grounds of appeal, says:
"The learned Judge was wrong in law in holding that he was bound by the decision of the House of Lords in the above case in that he failed to attach sufficient weight or give due consideration to any of the following matters:—
"(e) The fact that the procedure under the Children and Young Persons' Act 1969 does not allow the Juvenile Court (or the Crown Court on appeal) to make provision for, or control, a phased return to the parent or an experimental period of increasing contact by way of access."
I need not read out all of that ground, but it concludes with this sentence: "By reason of the foregoing it is further submitted that the learned Judge failed to give due consideration to the fear that it would be most unfair that recourse to the Wardship jurisdiction should, if necessary, be available to the First Defendant, as the local authority, (in order to overcome perceived defects in the said legislation) and not to the Plaintiff, as the children's natural mother, when the result in the latter may be in the children's best interests in the long term as opposed to long term fostering or living in a children's home under a care order."
Then the notice of appeal goes on to say: "In the further premises the learned Judge failed to give due consideration to whether or not:—
"(1) The interests of the said minors would be better served by an order which the High Court can make under Section 7 of the Family Law Reform Act. In this regard it be further alleged that the learned Judge failed to pay any or any sufficient regard to the fact that Section 21(2A) of the Children and Young Persons' Act 1969 (introduced by Section 108(4)(c) of, and paragraph 69 of Schedule 3 to the Children Act 1975) precludes a Juvenile Court from discharging a care order unless the Court is satisfied that the relevant child will receive the care and control which he requires. In expressly restricting the power of the Juvenile Court it may prevent this tribunal from taking a risk which, in the best interests of the said child or children, perhaps ought to be taken. In this case the risk would be lessened if the High Court in Wardship were able to give due consideration to and assist in the implementation of the Plaintiff's proposals for the children."
There then followed other grounds which are put forward as matters which should affect the court in the exercise of its discretion: for example, the fact that legal aid is not yet available to the parents in care proceedings, and reference is made to R. v. Worthing Justices ex parte Stevenson (1976) 2 A.E.R. 194. Then there is relied on the fact that the first defendant, who is the local authority, did not raise any objection to the issue of jurisdiction after 8th July 1982 until the date of the hearing in the High Court before Mr. Justice Balcombe; and, finally, the fact that, by submitting to the order of the learned Registrar, the first defendant elected to submit to the jurisdiction of the High Court in wardship, and it is said that Mr. Justice Balcombe was wrong in allowing the first defendant to reverse; its election as the parties were all ready for trial.
Now, the argument then can be divided really into two parts. The first part is that this court's jurisdiction is not ousted or limited by the Liverpool City Council case and that the court should exercise its jurisdiction for the reasons set out in the grounds of appeal and, as I say, argued before the learned judge. The second part is, perhaps, peripheral considerations namely, that legal aid is not available to the parents, that witnesses were at court, as indeed they were, ready to testify in the matter, that affidavits were before the court, and the fact, it is said, that the first defendant did not raise any objection to the jurisdiction and, as it is alleged, there was an election. I will return to the second part later but, in passing, would simply say that those matters do not seem to me to be matters that directly affect the welfare of the child but are urged in support of the claim of the parent to intervene.
The learned judge considered the Liverpool City Council case and I shall return to it in a moment and, whilst it was, as I understood Mr. Webster's argument, originally submitted to this court that the learned judge treated the matter as though he had no jurisdiction, Mr. Justice Balcombe did, as I read his judgment, take the view that he had jurisdiction but would not exercise his discretion as asked. At page 11 of his judgment he said this:
"If I had been satisfied that the welfare of the children in this case would be prejudiced by my not hearing the case now I would certainly have continued to hear it. But the position is that I am told that a hearing before the juvenile court could have been heard next week. That is not practicable because one of the leading witnesses for the county council is about to leave the country for a short time. Indeed, I had arranged, if this case had been proceeded with before me, to hear her evidence first; but a hearing can be arranged for early in January, dates have been put aside for it, by which time that witness will be back in this country." The learned judge went on to say: "…I have been told by the county council the existing arrangements for access will be maintained, the children will not be prejudiced."
So it seems clear to me that he considered whether or not to exercise his discretion in the way that he was asked to, and later at page 12 of the judgment he said: "If I had been satisfied that the welfare of the children would be prejudiced by the order I am proposing to make, then it would have been clearly appropriate not to accede to the application." He, in fact, made an order that the children cease to be wards of court. The proceedings in the Magistrates Court have been reinstated and we are told that they can be heard very soon indeed, I think this very week.
Now, it is quite clear, and indeed there has been no argument to the contrary in this court, that the Liverpool City Council case does not oust the jurisdiction of the High Court in wardship. Lord Wilberforce at page 373 said this: "This is not to say that the inherent jurisdiction of the High Court is taken away. Any child, whether under care or not, can be made a ward of court...
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