Re R (A Child) (Special Guardianship Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1748 |
| Docket Number | Case No: B4/2006/1849 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2006 |
[2006] EWCA Civ 1748
Lord Justice Thorpe
Lord Justice Tuckey and
Lord Justice Wall
Case No: B4/2006/1849
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Cardinal
sitting in the Birmingham County Court
on 3 August 2006.
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Harrison QC and David Brown (instructed by Birmingham City Council legal services) for the Appellant
1 st Respondent – not represented at the appeal but was represented in the care proceedings by the official solicitor – Anthony Collins
2 nd Respondent – not represented at the appeal and was represented in the care proceedings by Tyndallwoods Solicitors
3 rd and 4 th Respondents – Jeremy Weston (instructed by Challinors Solicitors)
5 th Respondent – Peter Anthony (instructed by Glaisyers Solicitors)
Hearing date : 23rd November 2006
This is the judgment of the court
Introduction: the nature of the appeal in outline
This is the first appeal to reach this court under the Special Guardianship provisions contained in sections 14A to F in Part II of the Children Act 1989 (the 1989 Act) and the consequential Special Guardianship Regulations 2005 (SI 2005 / 1109) (the regulations). Sections 14A to F of the 1989 Act were inserted by section 115(1) of the Adoption and Children Act 2002 (the 2002 Act) and came fully into effect on 30 December 2005.
The appeal is brought by the Birmingham City Council (the local authority) against a decision made by His Honour Judge Cardinal sitting in the Birmingham County Court on 3 August 2006. It raises three questions of law which, the local authority argues, have important practical implications for this local authority and for local authorities generally in cases in which the question of special guardianship arises. They are as follows: -
(1) Is it open to an individual who needs the leave of the court to make an application for a special guardianship order to give notice to the local authority of his intention to apply for such an order under section 14A(7) of the 1989 Act prior to leave being obtained, thereby triggering a mandatory duty on the local authority to investigate the matter and prepare a report for the court under section 14A(8) ?
(2) Is it a proper exercise of judicial discretion under section 14A(9) of the 1989 Act for the court to ask a local authority to conduct an investigation and prepare a report pursuant to section 14A(8) (a request which the local authority must obey) ; (a) when leave to make an application for a special guardianship order has not been obtained; and / or (b) without considering whether or not a prospective application for a special guardianship order has any realistic prospect of success?
(3) Where the court makes a request under section 14A(9) is it at the same time open to the court to define (and thereby limit) the scope of the local authority's obligation to investigate and report under section 14A(8) and the regulations?
Mr Michael Harrison QC, who appeared in this court for the local authority, invited us to answer the first two questions in the negative. He would like us to answer the third question in the affirmative, but reluctantly submits that we cannot, as a matter of law, do so.
The facts
The factual context in which the appeal arises is not contentious, although the outcome of the case was, when we heard the argument, disputed. We can, accordingly state the facts shortly. The local authority has brought care proceedings under Part IV of the 1989 Act in relation to a female child M, who was born on 17 September 2005, and who is thus now aged 15 months. It is common ground in those proceedings that the threshold criteria under section 31 of the 1989 Act are satisfied, and that neither of M's parents is capable of caring for her. The local authority's case before us was that the court should, in due course, make a final care order, and that M should be placed with adoptive parents who are not members of her family. M is currently in the interim care of the local authority, and living with foster parents.
The mother's case was that M should live with her parents, the child's maternal grandparents, whom, for the purposes of this judgment, we will call "the grandparents". The grandparents, who had party status in the care proceedings, wished M to live with them under a special guardianship order. The court can only make such an order in the grandparents' favour, however, if the grandparents have obtained leave (the word used in the applicable provisions of section 10 of the 1989 Act) to make an application for it. As at the date of the judge's order on 3 August 2006 the grandparents had neither obtained such leave, nor had they made an application to apply for leave.
Pursuant to section 14A(6) (b) of the 1989 Act, the court can also make a special guardianship order of its own motion, if it considers that such an order "should be made". However, for reasons which will rapidly become clear, that sub-section is not directly in play in the instant case.
The historical position was that there had been previous care proceedings concerning another child of the same parents called P, who was made subject of a care order in August 2005 and remained in his father's care. The father, however, made it clear that he was not in a position to care for both children.
The appeal
The local authority appeals against paragraph 4 of an order made by His Honour Judge Cardinal on 3 August 2006 in the care proceedings. The judge was giving directions, for which the solicitor instructed by the child's guardian had applied. There was no formal application for any relief relating to special guardianship before the judge. The context for the directions appointment was a request by the guardian that the grandparents should confirm in writing their commitment to a previously ordered assessment of their capacity to parent M.
Paragraph 4 of the judge's order requires the local authority to undertake an assessment of the grandparents under section 14A(9) of the 1989 Act, even though they had not, at that point, obtained the court's leave to make the application. The local authority's case, quite simply, is that, on 3 August 2006, and in the circumstances we have already set out, the judge was not entitled, as a matter of law, to require the local authority to undertake that assessment.
The hearing before the judge on 3 August 2006
One of the consequences of the case being before Judge Cardinal on 3 August 2006 for directions and without any formal application having been made by the grandparents, was that he did not give a formal judgment, nor was he invited to do so by any of the parties. It also appears from the transcript that counsel for the local authority was taken by surprise when counsel for the grandparents announced that, subject to obtaining public funding, the grandparents intended to make an application for a special guardianship order.
The grandparents' position on 3 August 2006 was that they had previously, on 8 June 2006, obtained the court's permission to instruct an independent social worker, Mr. Nigel Sharratt, to conduct an assessment of their capacity to parent M. Unfortunately, although Mr. Sharratt had been ordered to file his report by 24 July 2006, he had not done so, apparently because the papers had gone astray. It appears that it was both the delay in filing Mr. Sharratt's report, and concern about the grandparents' commitment to the assessment which, quite properly, had triggered the guardian's application for directions.
Counsel for the grandparents was, however, able to inform the judge on 3 August 2006 that Mr. Sharratt's report was imminently expected, and that it would support the grandparents' case. The grandparents, he argued, were indeed committed to caring for M. He stated that they intended to apply for a special guardianship order under section 14A to C of the 1989 Act, although he accepted, as was self-evidently the case, that they both required and did not have the leave of the court to apply for such an order.
The judge's order, accordingly, is prefaced by the following recitals;
(1) Upon hearing counsel for the (local authority) and the (grandparents) and solicitors for (M and her parents) ;
(2) AND UPON the undertaking by counsel on behalf of (the grandparents) to file and serve an application for a special guardianship order within 7 days (sic), subject to being granted public funding to make such an application;
(3) AND UPON solicitors for (the grandparents) urgently referring the matter to a circuit judge in the event of failure to lodge any application for a special guardianship order within 7 days;
(4) AND UPON the local authority indicating that it may dispute the nature and extent of any report and assessment and its obligations under section 14 A of the (1989 Act) (as amended by the (2002 Act)) the matter is listed in accordance with paragraph 5 of the order set out below.
Items (2) and (3) of the recital should, of course, have read "an application for permission to apply for a special guardianship order". This, for reasons which will become apparent is, in our judgment, a significant error.
Paragraphs 1 and 3 of the order deal with various extensions of time. Paragraph 2 requires the...
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