Re N (Minors) (Parental Rights: Access)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE BALCOMBE,LORD JUSTICE LLOYD |
| Judgment Date | 16 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0216-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0161 |
| Date | 16 February 1989 |
[1989] EWCA Civ J0216-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BEDFORD DISTRICT REGISTRY
(HIS HONOUR JUDGE KINGHAM)
Royal Courts of Justice
Lord Justice Croom-Johnson
Lord Justice Lloyd
and
Lord Justice Balcombe
89/0161
MR IAN KARSTEN, instructed by Messrs Sharpe Pritchard & Co. (London Agents for R.C. Wilkinson, Esq., Bedfordshire County Council), appeared for the Appellant (Second Respondent).
MR ANTHONY HACKING, Q.C., and MR STEPHEN BELLAMY, instructed by Messrs Borneo Martell & Partners (Bedford), appeared for the First Respondent (First Respondent).
MISS CAROLINE WILLBOURNE, instructed by Messrs Pictons (Bedford), appeared for the Second Respondent (Applicant).
I will ask Lord Justice Balcombe to give the first judgment.
This is another chapter in the saga of cases which derive from the difficulties with which parents of children who have been taken into the care of a local authority are faced if they seek to challenge the decision of the local authority to deny or restrict access by such parents to children taken into care. The particular feature of this case, which we are told is unique, is that it concerns the natural father of children to whose mother he was not married, who had obtained from the county court an order giving him access to those children, which order was made before the care order was made, and it is argued on behalf of the father, and indeed was so held by the judge below, that he had a better position as a result of that access order than if there had been no such order.
As I said, although this is the first case in which the point has arisen directly, it appears that it (or a similar point) could have arisen in a recent case before this court which is reported under the initials ( G..…v. G..…& Devon County Council 1989 CA 53) but was not taken there.
The appeal is from a decision of His Honour Judge Kingham, sitting as a High Court Judge, and made on 28th September 1988 ruling on a preliminary point of law. In order to understand how the point arises and how the learned judge came to decide as he did, I must first give some of the facts.
The mother and father in this case lived together for some six years between 1979 and 1985, and there were three children of their union: a boy born on 17th October 1979; a girl born on 6th December 1980; and a younger boy born on 6th August 1982. The parents of these children were never married. They separated in July 1985 and on 19th July 1985 the mother issued in the Bedford County Court an application under the Guardianship of Minors Act for custody and control of those three children, and an application for an injunction against the father under the Domestic Violence and Matrimonial Proceedings Act 1976. There was an ex parte order with which I need not be concerned, and on 13th August 1985 on an inter partes hearing in the county court in these guardianship proceedings, Judge Counsell, by consent, granted custody, care and control of the three children to the mother, and granted to the father an order for reasonable access, and it is that order upon which the father relies in the context of what happened subsequently.
On 24th August 1985 the father was arrested and charged with the rape of the mother and was remanded in custody. In the meantime another man moved in to live with the mother and the children. On 22nd October 1985 the youngest child—that is the boy who was born in August 1982—was discovered to have non-accidental bruising and the local authority obtained a Place of Safety Order on that very day. Eight days later the same local authority obtained Place of Safety Orders in respect of the other children. The mother's co-habitee was charged with assault on the youngest child. Although both he and the mother denied that any of the children had been assaulted, he was subsequently convicted of that offence.
In the meantime the local authority started care proceedings under section 1 of the Children and Young Persons Act 1969, and on 6th November 1985 obtained interim care orders in respect of all three children. It must be recalled that whilst this was going on the father was still in custody awaiting trial on the rape charge.
On 29th January 1986 the North Bedfordshire Juvenile Court made a care order under section 1 of the Children and Young Persons Act 1969 and committed all three children to the care of the local authority, the Bedfordshire County Council. The father was called to give evidence by the local authority, and came from prison to give that evidence and supported the making of a care order, because at that time he was not in any position himself to look after the children and had been told what had happened to them.
A few weeks later, on 14th February 1986, the father was acquitted, after a trial at the crown court, on the charge of rape, and he was released from custody. He immediately went to see a social worker to ask for access to his children, but that was refused on the grounds that the children were not ready for access. Subsequent attempts both by him and through his solicitor to obtain access to the children were unsuccessful, and in the result these proceedings, which I shall have to set out in some detail, resulted. But it is right that I should say that, both before the judge in the court below and before this court, the case has been argued as a pure point of law. Although one cannot but help have sympathy for the position in which the father finds himself, in that he has been unable to get a court even to hear his claim for access to his children, we are in no position to say what might happen if that claim were heard because, as I have said, we have no knowledge of the merits of the case on either side. Therefore in dealing with it, as I do, as a pure question of law it is not to suggest either that the father may not have merits on his side, or alternatively that the local authority may not be perfectly entitled to have taken the view, which they have done, that access by these children to their father would not be in their interests. As I say, it is a pure point of law.
What then happened was that, leaving aside certain procedural difficulties that have intervened, the guardianship proceedings, which the mother had started back in July 1985 and in which the consent order of Judge Counsell had been made on 13th August 1985, were on 8th March 1988 transferred to the High Court. On 2nd August 1988 the father took out a summons in those proceedings, the local authority having been brought in as an additional party, in effect for enforcement of his access rights under the existing order of August 1985 as against the local authority. There was then directed as a preliminary point of law four questions: "Is a putative father"—and I pause there to interpolate that I prefer to use the term "natural" father because in this case there is no doubt at all that the father here was the biological father of these children—"entitled to apply for access under the Guardianship of Minors Act to children that are placed in care of the Local Authority under Section 1 of the Children and Young Persons Act 1969?
"2. If such an application can be made, can access be granted?" Here I interpolate to say that those two questions were framed before the decision of the House of Lords in a case to which I shall be referring shortly ( re. M and H) had been decided. By the time the preliminary points came before the judge, that case had been decided and reported and the answers to questions 1 and 2 thereupon became clear. The questions became unarguable because the House of Lords had decided those two questions, namely: yes, he is entitled to apply because there is jurisdiction, but the application must be refused because, as was stated by the House of Lords in re.M and H, although there is jurisdiction it is a jurisdiction which should not be exercised in any case.
It is the third question and subsequently the fourth which remain live ones: "Where an existing County Court Order grants access to such a putative father under the Guardianship of Minors Act 1981, is this Order affected by subsequent care proceedings under the Children and Young Persons Act?
"4. If not and this Guardianship of Minors Act Order continues can it be enforced or varied?" and His Honour Judge Kingham in a careful and considered judgment, after dealing with the first two questions, to which as I have said the answers by then had become clear, finally turned to the remaining questions in these words:
"The sole questions thus left for consideration is what happens to an already existing order in a County Court.
"All practitioners are familiar with the frequently used powers of the Divorce Court to revoke Magistrates Courts orders and make custody orders under the Matrimonial Causes Act. There is however no power for the Magistrates to revoke a County Court Order."
I pause there to say that that was apparently a reference to the powers of a court exercising matrimonial jurisdiction to discharge orders made by the magistrates under section 28 of the Domestic Proceedings and Magistrates' Courts Act 1978. But I do not see how it in fact affects the decision which we have to make, and Mr Hacking, who appears for the father before us, did not place any reliance on that particular aspect of the judge's decision.
The judge continued:
"In my Judgment the effect of the care order made by the Justices was to terminate the mother's parental rights given to her by Judge Counsell in his order of 13th August 1985....
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