Re S (A Minor) (Care Proceedings: Reports)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Court of Appeal (Civil Division) |
FOX AND BUTLER-SLOSS, L JJ
Care proceedings – guardian ad litem appointed – duty of guardian ad litem to report to court – whether appropriate also to request a welfare report.
In February 1991 the child, now aged 3½, was committed to the care of the local authority. The local authority proposed to place the child for adoption and applied to a magistrates' court for an order authorizing them to refuse contact between the child and her father. The father wished to maintain contact with the child. A guardian ad litem was appointed. At a directions hearing in March 1992 the hearing date was fixed for 17 and 18 June 1992. The magistrates' court refused an application by the father to disclose the papers in the case to an independent social worker. The father appealed and Thorpe, J dismissed his appeal. However, the Judge observed that there were arguments in favour of contact referred to in a government publication [see Note below], and that a court welfare officer would be aware of that publication and the guidance it offered. He therefore directed that, in addition to the guardian ad litem's report, there be a report from a welfare officer.
The guardian ad litem appealed against the Judge's direction.
Held – allowing the appeal: By s 7 of the Children Act 1989 the court could ask for a welfare report in both private family proceedings and in public law proceedings. There was no doubt, therefore, that the Judge had jurisdiction to appoint a welfare officer in the care proceedings. However, by s 41 of the 1989 Act the court was required to appoint a guardian ad litem for the child unless satisfied it was not necessary to do so to safeguard his interests. In this case a guardian ad litem had been appointed. The functions of a guardian ad litem and of a welfare officer were not identical but they each had a singular duty to advise the court as to what was best for the child and to do so independently of the other parties to the proceedings. The functions and duties of a welfare officer overlapped those of a guardian ad litem. In the absence of special circumstances, to seek a welfare report in addition to a report from the guardian ad litem would be to duplicate the functions of the guardian ad litem. There were no special circumstances in this case. The guardian ad litem would be aware of recent thought as to contact and be able to bring any relevant publication to the attention of the court. The Judge was in error in directing a welfare report and his direction would be set aside.
AppealAppeal from Thorpe, J.
NoteFor guidance as to contact with a child who is being accommodated by a local authority by
voluntary arrangement or who is in the care of the local authority as a result of a court order, see the Department of Health Handbook: The Children Act 1989: Guidance and Regulations, Volume 3, Family Placements, chapter 6.
Alan Inglis for the guardian ad litem.
Tina Cook for the local authority.
Michael Warren for the father.
LORD JUSTICE FOX.I will ask Butler-Sloss, LJ to give the first judgment.
LORD JUSTICE BUTLER-SLOSS.This is an appeal by a guardian ad litem, acting on behalf of a child, from the order of Thorpe, J made on 8 May 1992, hearing an appeal from the family proceedings magistrates' court, Medway, on 18 March 1992. The Judge dismissed an appeal by the father against the refusal by the justices to disclose papers in the case to the social worker advising the father.
This appeal raises a short, but important, point and the court is indebted to counsel for the appellant, Mr Inglis, for his helpful skeleton argument and chronology produced at extremely short notice.
The guardian ad litem represents a little girl, aged 3½, who was born on 29 January 1989. On 4 February 1991 the child was made the subject of a care order under the Children and Young Persons Act 1969 and it was (and remains) the plan of the local authority to place the child for adoption.
The mother does not now seek to oppose that plan. I assume that the father opposes it, but in particular he wishes to maintain contact with the child and has made an application to that effect. The local authority has issued a counter-application that contact between the child and her father should be refused.
On 26 February two days after these competing applications were issued, the guardian ad litem was appointed by the court. He had previously been guardian ad litem in the original care proceedings, and so is well acquainted with and has obviously taken a great deal of trouble concerning the background facts in this case.
On 18 March 1992...
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