Re S (A Minor) and Another

Lord Justice Brandon is unfortunately unwell and cannot be here, but he has read and approved the judgment I am about to read which is, therefore, the judgment of the Court.

This is an appeal by the Avon County Council from an order made by Lincoln J. on 18th April, 1980, in wardship proceedings. Toe learned judge dismissed a summons by the appellants asking that the wardship proceedings should be dismissed in limine, and directed that they should continue and be heard on the merits.

This is another case in which a parent (or foster parent) is trying to find in the wardship jurisdiction of the High Court a means (which is not otherwise available to them) of questioning a decision by a local authority in relation to a child who is in the care of the local authority under the Children Act 1948 or, as the case may be, the Children and Young Persons Act, 1969. The position of parents in these cases is an unenviable one. They have a very limited right to challenge the assumption of control over a child under these Acts by a local authority, but no right to challenge, or refer to a court, a decision of the local authority about the management of the child, so long as the local authority remain in control. The present case concerns access to the child by the respondent mother, which the appellant authority, in their discretion have prohibited.

This court has severely fettered its discretion to use its powers in the wardship jurisdiction to interfere in cases arising under those Acts to which we will refers collectively as the "statutory code". In (An Infant) 1961. Ch.328, it was held, to quote the headnote,

"that in the absence of any challenge to the propriety of what the local authority or its officers had done as distinct from their wisdom, on the true construction of the Children Act 1948, the matter of judging what was in the best interests of the child, in the circumstances,had been placed in the exclusive jurisdiction of the local authority, and, accordingly, the child should cease to be a ward of court".

The same principle was applied to cases arising under the 1969 Act in In re (An Infant) 1970. Ch.688. In the first of these cases the local authority had passed a resolution under section 2 of the 1948 Act assuming parental rights and duties over the child; in the second, a Magistrates' Court had made a fit person order. The local authority in each case were, to use a phrase of Russell L. J. in the latter case, "firmly in the saddle". On the other hand in In re (An Infant) 1965 1 WLR.483, it was held that the jurisdiction in wardship was not ousted by the fact that the child was in the care of the local authority under section 1 of the 1948 Act ("voluntary care") because at that stage the parent or parents could require the local authority to return the child. So, the local authority was not firmly in the saddle and, moreover, might themselves need to invoke the wardship jurisdiction to supplement the provisions of the statutory code, if the interests of the child so required. And in In re (A Minor) 1978. Fam.65, it was held that if there were special reasons, the court could use its powers in wardship to take the case out of the bands of a local authority to whom a care order had been made under the 1969 Act, that is, to pursue Russell L. J. 's metaphor, to "unseat" the local authority altogether. In other words, where, for special reasons, the interests of a child can be better managed in wardship proceedings, the court can and should, assume jurisdiction. Such cases, obviously, will be unusual or exceptional.

In the present state of the authorities, therefore, there is a 'no go' area into which the court will not enter. It will not interfere with discretionary decisions of local authorities under the statutory code if there is in force either a section 2 resolution or a care order but it may displace either of these if there are special reasons why the welfare of the child requires the court to takecontrol, or there has been some Impropriety or irregularity by the local authority in the exercise of its discretion within the principles laid down in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1948 1 KB 223, which justifies the court assuming jurisdiction.

The present case, on its facts, falls very near but, in our opinion, on the wrong side of the border. We do not think that the learned judge's reasons for holding the contrary can be supported, a conclusion which we have reached with regret because, in the events which have happened, we think that the future of this child could be settled with much less emotional stress for all concerned, mother, social workers, and local authority, by a judge.

The facts, so far as they are relevant to the question raised by this appeal, can be stated quite shortly. The child in question, a boy called Clive, was born to the respondent mother on 9th October 1976. He is an illegitimate child. The mother is described as a sub-normal girl, who attended an E. S. N.. school, and was still, at that time, subject to voluntary supervision by the department of social services. The father had broken off his relationship with the mother, and the mother's mother adamantly refused to allow the mother to bring the baby home to her house. In these circumstances, on 19th October 1976, the child was taken into care with a view to adoption by the appellant authority under section 1 of the 1948 Act, and placed with foster parents. At that stage the mother was prepared to consent to adoption. He has been in foster-care ever since, the mother herself, being unable to undertake his care. It seems that the father later resumed his association with the mother for a time, and there was talk of marriage. This led to the mother withdrawing her informal consent to adoption, but the relationship again broke down.

Since November 1976 the child has been with Mr. andMrs. S. as foster parents. Both the mother and the father have had access to the child for short periods of an hour a week, curiously enough between 8 p. m. and 9 p. m. The father's access appears to have gone quite satisfactorily but there were difficulties between the mother and the foster-mother. The mother says she was under constant pressure to consent to the adoption of the child. These difficulties culminated in October 1979 in the mother consulting colicitors.

On 5th October 1979 the mother's solicitors wrote to the appellants, formally requesting the return of the child to the mother. The effect of this letter was unfortunate because it brought to an end the local authority's right to control the child under section 1 of the 1948 Act. But under section 3(a) of the 1948 Act (inserted by section 56(1) of the Children Act, 1975) the notice does not take effect for 28 days. This forced the Avon County Council to act. They could either proceed to pass a resolution assuming parental rights under section 2 of the Act, if they could bring themselves within its terms, or issue an originating summons making the child a ward of court. But far an amendment to section 2(1), by the 1975 Act, giving the local authority power to pass such a resolution in respect of a child who has been in care for the period of 3 years, it is open to doubt whether the appellants would have been in a position to pass such a resolution. Moreover, the 3 years did not expire until 19th October 1979. i. e. during the period of 28 days notice. The resolution, however, was passed on 23rd October, 1979, and the respondent mother was notified of this resolution, pursuant to section 2(2), on 1st November, 1979. She served a counter-notice under section 2(4) on 19th November, and on 3rd December the appellants laid a complaint to the Magistrates' Court at Bristol, pursuant to section 2(5). The complaint was dueto be heard on 6th February 1980. Meanwhile on 21st January 1980, the mother issued her originating...