Re N (leave to withdraw care proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 27 September 1999 |
| Court | Family Division |
Care proceedings – Leave to withdraw – Local authority seeking to withdraw care proceedings on basis child not currently at risk – Local authority relying on current quality of care to justify withdrawal – Whether leave would be granted – Children Act 1989, s 31.
Human rights – Right to private and family life – Interference with family life – When interference necessary.
In 1996 Mr and Mrs N moved from Portsmouth to Scotland with three children from the mother’s previous marriages. Following disputes between Mr and Mrs N and the local authority in respect of schooling of two of the children, A and B, who had behavioural and educational problems, the local authority applied to the sheriff for a child protection order. The local authority alleged, and the sheriff found, that although Mr and Mrs N had told A and B that they were autistic and had removed them from mainstream schooling and enrolled them in a school for children with severe disabilities, a child assessment had found that neither child was suffering from autism; that the parents had a limited understanding of the physical, social, emotional needs of the children; and that each child had suffered a significant level of impairment to development. A and B were accordingly placed in foster care, where they blossomed and wished to remain, and both subsequently entered mainstream education. In 1998 Mrs N became pregnant and, fearing that social services might remove the baby, they decided to return to Portsmouth. The child, L, was born prematurely and the local authority obtained an emergency protection order and thereafter a series of interim care orders. On 16 November 1998 the local authority applied for a care order under s 31 of the Children Act 1989. Full psychiatric assessments of both parents were carried out and independent assessments of the parents’ capacity to parent L concluded that their care of L was exemplary and that she should remain with her parents. On 23 August 1999 the local authority, without consulting the guardian ad litem, applied for leave to withdraw their application under r 4.5(1) of the Family Proceedings Rules 1991. The matter was adjourned for consideration by the guardian ad litem. At the hearing the guardian opposed the application contending that L’s welfare demanded a full hearing of the care application, and that the history of A and B in Scotland had to be examined in order to assess the risk to L. The parents supported the position of the local
authority relying on art 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Human Rights Convention) to respect for their private and family life. The local authority and parents further argued, inter alia, that since all the evidence showed that L was not suffering any harm currently there should be a wait and see policy, and the local authority relied on the current quality of care to justify withdrawal.
Held – (1) A parent’s right under art 8(1) to respect for his private and family life was only to be interfered with where it was necessary to do so in the protection of one of the interests set out in art 8(2), which in the present case involved protection of health or morals, and fulfilled a pressing social need. There was nothing in the European Human Rights Convention which required the courts of this country to act otherwise than in accordance with the interests of the child. The doctrine of margin of appreciation was not relevant to the court’s consideration and the relevant approach was whether the guardian ad litem had shown a pressing social need for intervention by the state at that stage in family life and whether the response was proportionate to the need.
(2) The law did not counternance, where there was real risk, waiting for a potential harm to actually occur before taking action. That was not the objective of the second limb of s 31 of the 1989 Act. The background facts had to be found and then the question arose whether on those proved facts there was a real risk of harm in the future. The second limb was not only concerned with the immediate future, but encompassed the capacity of parents to provide appropriate care throughout childhood. The past was often the best predictor of the future and on the facts of the present case there was evidence to be tested which if found established would give rise to the real possibility of future harm to L.
(3) In determining the application under r 4.5(1) of the 1991 rules, L’s welfare was the paramount consideration and the checklist would be applied. If the contested allegations of the children were to be established the threshold criteria would be abundantly satisfied in respect of L, who would be at serious risk of being victimised as she grew older. The guardian ad litem had advanced solid and cogent reasons despite the views of the local authority and there was a pressing social need for state intervention now to protect L in the future. Accordingly, since there was a clear need to proceed for the benefit of L, the local authority’s application to withdraw would be refused.
Cases referred to in judgmentDawson v Wearmouth[1999] 1 FCR 625, [1999] 2 AC 308, [1999] 2 All ER 353, [1999] 2 WLR 960, [1999] 1 FLR 1167, HL; affg [1998] 1 FCR 31, [1997] 2 FLR 629, CA.
DB and CB (minors), Re[1993] 2 FCR 607; sub nom Southwark London BC v B [1993] 2 FLR 559, CA.
F (a minor) (care proceedings: withdrawal), Re[1993] 1 FCR 388; sub nom Re F (a minor) (care order: withdrawal of application) [1993] 2 FLR 9.
Hendriks v Netherlands (denial of access by father to child) (1982) 5 EHRR 223, ECom HR.
O (minors) (care or supervision order), Re[1997] 2 FCR 17, [1996] 2 FLR 755.
R v Birmingham Juvenile Court, ex p G (minors), R v Birmingham Juvenile Court, ex p R (a minor) [1988] 3 All ER 726, [1988] 1 WLR 950; affd [1990] 2 QB 573, [1989] 3 All ER 336, [1989] 3 WLR 1024, CA.
ApplicationThe local authority applied for leave to withdraw an application for a care order in respect of the child, L, under r 4.5(1) of the Family Proceedings Rules 1991, SI 1991/1247, which was supported by the parents, but opposed by the guardian ad litem. The case was heard and judgment was given in chambers. The case is reported with the permission of Bracewell J. The facts are set out in the judgment.
David Harris QC and Patricia Kelly (Blake Lapthorn, agents for the local authority) for the local authority.
Roger McCarthy QC and Janet Haywood (instructed by Lynch Hall) for the mother.
Suzan Matthews QC (instructed by Bennett Griffin & Partners) for the father.
Mark Everall QC and Andrew Houston (instructed by Bolitho Way) for the guardian ad litem.
Cur adv vult
27 September 1999. The following judgment was delivered.
BRACEWELL J.In this case the local authority seeks leave to withdraw an application for a care order under s 31 of the Children Act 1989 in respect of L, who was born on 7 November 1998. The mother and father of L support the position of the local authority. The guardian ad litem opposes the application and contends that the welfare of L demands that the full hearing of the care application commences on 4 October, as already timetabled with an estimated length of three weeks. There is within the papers a wealth of evidence filed with highly contentious issues alleged by the local authority and opposed by the parents.
Legal frameworkThe local authority require leave to withdraw their application under the Family Proceedings Rules 1991, SI 1991/1247, r 4.5(1). There is the authority of Re F (a minor) (care proceedings: withdrawal) [1993] 1 FCR 388 that the application is to be considered as carefully as any other application for an order under the Children Act 1989. L’s welfare is the paramount
consideration. In Re DB and CB (minors) [1993] 2 FCR 607, a Court of Appeal decision, Waite LJ said (at 623):
‘The paramount consideration for any court dealing with a r.4.5 application is accordingly the question whether the withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned . . . It is a matter of looking at each case to see whether there is some solid advantage to the child to be derived from continuing the proceedings.’
The application for leave to withdraw should be supported by reasons in writing (the 1991 rules, r 4.5(2)). The local authority should present evidence to support their application. The guardian ad litem should be able to make representations which she has now done in her fourth report. The guardian of course has no veto on any application by a local authority and the court may in appropriate circumstances depart from the recommendations of the guardian.
At the hearing for leave to withdraw the application on 23 August 1999 the position of the local authority then was that if leave was refused the local authority would offer no evidence, thereby pre-empting or endeavouring to pre-empt the outcome. Such tactics were deprecated in R v Birmingham Juvenile Court, ex p G (minors), R v Birmingham Juvenile Court, ex p R (a minor) [1988] 3 All ER 726, [1988] 1 WLR 950, a decision of Sir Stephen Brown P approved on appeal (see [1990] 2 QB 573, [1989] 3 All ER 336). He stated that tactics of this nature undermine the very purpose of the statute which is designed for the protection of children.
The local authority no longer hold to that position but have indicated that should their application be withdrawn they would be unwilling to call the bulk of evidence from Scotland. The guardian contends that if leave to withdraw is refused the substantive hearing should proceed and the local authority should present their evidence and make witnesses available for cross-examination. The guardian ad litem does not wish to enter the arena and in my judgment should not do so as the independent guardian of the child. Evidence filed in the case is evidence-in-chief. If the case were to proceed and the local authority declined to call evidence then, in my...
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