Re S and D (Child Case: Powers of Court)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
BALCOMBE, STAUGHTON AND ROSE, L JJ
Care proceedings – local authority's care plan proposing rehabilitation of children with parent – Judge disagreeing with care plan – refusing to make care order but making supervision order and injuncting parent from removing children from foster-parents – whether Judge could properly make the order he did.
The mother had four young children. The father of the eldest was killed before the child was born in November 1984. In 1986 the mother began to cohabit with a man by whom she had three children who were born in May 1987, September 1988, and December 1991 respectively. The relationship of the mother and the cohabitee ended in early 1993.
The local authority began care proceedings on the basis that the mother had been unable to provide an adequate standard of parenting to protect any of the four children from significant harm. There was also evidence that the mother was suffering from Munchausen's Syndrome by Proxy.
The local authority's original plan had been to attempt rehabilitation of all four children with the mother. The care proceedings came on for hearing in May 1994. By that time, however, the local authority had abandoned their original plan for the two middle children, born in 1987 and 1988, but persisted with it for the eldest and the youngest child. The Judge held that if those two children were returned to the care of the mother they would be exposed to serious risk of harm. He therefore refused to make care orders but made supervision orders in respect of those two children. However, in an effort to ensure that the two children were not returned to the mother, he made an order injuncting the mother from removing the children from the foster home where the local authority had placed them.
The mother appealed against the injunction and the local authority cross-appealed against the refusal to make a care order.
After the decision of the Judge in May 1994 the local authority learned that the mother had given birth to another child. The father of that child was regarded by the local authority as being a risk to children. Although the mother had said she had ended her relationship with this man, the evidence of the local authority was that his role in the mother's household was uncertain. As a result of this further information, further evidence was admitted by the Court of Appeal, and the local authority stated that their plans in respect of the eldest child and the youngest child had changed. It was proposed that the youngest child should be placed for adoption and that the eldest child should be placed in long-term foster-care.
Held – allowing the appeal and the cross-appeal: (1) By s 8(1) of the Children Act 1989 a prohibited steps order was defined as an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which was of a kind specified in the order, should be taken by any person without leave of the court. By s 9(5) of the 1989 Act a court should not exercise its powers to make a prohibited steps order in any way which was denied to the High Court by s 100(2) of that Act in the exercise of its inherent jurisdiction with respect to children. By s 100(2)(b) of the 1989 Act it was provided that no court should exercise the High Court's inherent jurisdiction so as to require a child to be accommodated by or on behalf of a local authority. In the present case, although the order of the Judge was in the form of an injunction, it was in substance a prohibited steps order under s 8(1) since it prevented the mother from taking a step which she would otherwise have been entitled to take under her parental responsibility: that step being the removal of her children from accommodation provided other than under a care order by the local authority. Section 9(5) taken in conjunction with s 100(2) specifically prevented a court from making a prohibited steps order so as to require a child to be accommodated by a local authority. On that ground the Judge could not properly make the order that he did. Further, even if the Judge's order was, in substance as well as in form, an injunction, he was purporting to exercise an inherent jurisdiction to protect children which the county court did not possess: see D v D (Child Case: Powers of Court)[1994] 3 FCR 28. Indeed, even if the matter had been in the High Court, a High Court Judge could not have made the particular order made in this case as that was prohibited by s 100(2)(b) of the 1989 Act. A Judge could be faced with a situation where, if he made a care order, the local authority might implement a care plan which the Judge took the view was not in the child's interests. On the other hand, if he made no order, he might be leaving the child in the care of an irresponsible or wholly inappropriate parent. It was regrettable that the Children Act 1989 did not allow the Judge to achieve the result he considered right. In such a situation the only course open to the Judge was to choose what he considered to be the lesser of two evils.
(2) Having regard to the further evidence, it was now clear on the facts of the case that care orders in respect of the eldest child and the youngest child were fully justified and the local authority sought care orders in respect of those two children. In those circumstances, the court would make care orders in respect of those children.
Statutory provisions referred to:Children Act 1989, ss 1, 8(1), 9(5), 20(8), 31, and 100.
Cases referred to in judgments:Birmingham City Council v H[1994] 1 FCR 896; [1994] 2 WLR 31; [1994] 1 All ER 12.
D v D (Child Case: Powers of Court)[1994] 3 FCR 28.
KDT (A Minor) (Care Order: Conditions), Re[1994] 2 FCR 721.
Allan Levy, QC and Philip O'Neill for the local authority.
Elizabeth Lawson, QC and Jane Nicholls for the mother.
LORD JUSTICE BALCOMBE.I give the usual direction that if this case is to be reported, it should not be in any form which could identify the children concerned.
This is an appeal by the mother of two children, R, aged 9, and D, aged 2½, against an order made on 13 May 1994 by His Honour Judge Lewis-Bowen in
a county court injuncting the mother from removing R and D from their present home with Mr and Mrs K, or any other home.
We were told that the period of that injunction was subsequently limited by an order made under the slip rule, so as to expire on 24 June 1994, so that technically the order is no longer in force.
There is also before us a cross-appeal by the local authority against the Judge's refusal to make a care order in respect of these two children.
Before the Judge, the local authority, the mother, the father and the guardian ad litem were all separately represented. Before us, in the events which have happened, the father and the guardian ad litem now take the same view as the...
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