Re E. (S. A.) (A Minor) (Wardship: Court's Duty)
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Scarman,Lord Roskill,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 19 January 1984 |
| Judgment citation (vLex) | [1984] UKHL J0119-1 |
| Date | 19 January 1984 |
| Court | House of Lords |
[1984] UKHL J0119-1
House of Lords
Lord Diplock
Lord Scarman
Lord Roskill
Lord Bridge of Harwich
Lord Brandon of Oakbrook
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it, and for the reasons he gives I would allow this appeal and make the order proposed by him.
My Lords,
I would allow this appeal. The respondent, the Essex County Council, instituted on the 21st September 1982, wardship proceedings in respect of a boy who was then 6 years 8 months old. The boy is now 8 years old. His father and mother were made defendants in the proceedings. The mother has taken no part in the case: she left home on Boxing Day 1977, since when she has not concerned herself with the care or upbringing of the boy. The father, who is the appellant in your Lordships' House, has fought the case. Both he and the respondent authority accept that the boy should remain until his future is settled and secure a ward of court. The respondent seeks an order that the boy be committed to its care and control and that leave be given to prepare him for adoption and to place him in a home with a view to adoption. The father strongly opposes the adoption proposal and seeks an order that care and control be committed to him. In effect, he is asking that after a long period in which the boy has been (with his assent) in the care of the respondent Council he should be able to resume parental care and control.
The matter came before Mr. Justice Wood in August 1983. Eight days were occupied taking evidence, oral, documentary, and by affidavit. The judge reserved his judgment, which he delivered on the 26th August. He examined and analysed the evidence in great detail. He made clear findings of fact in the areas of dispute. He saw and heard the father give evidence over a period of two days and reached an assessment of his character. A report by a court welfare officer, Mr. Hatton, was available: it had been made pursuant to an order of the court made by the Registrar before whom in accordance with usual practice the matter had first come after issue of the originating summons. Mr. Hattonwas called as a witness, and it is clear that the judge attached great weight to his evidence. The judge's decision was to reject the adoption proposal, to commit the child to the care and control of his father, to place him under the supervision of Mr. Hatton, to give Mr. Hatton and the parties liberty to apply, and to retain the matter to himself.
The Council appealed. The Court of Appeal (Dunn and May L.JJ.) also went into the case with very great care. They concluded that the risk of break-down in the care and upbringing of the boy if he were to be entrusted to his father was so great and the need for an immediate decision enabling the boy to enjoy a permanent settled home was so urgent that it was plain that the judge was wrong in rejecting the adoption proposal and in returning the boy to his father.
The father appeals with the leave of this House. At first sight the appeal would seem (and so it appeared to the Appeal Committee who granted leave) to raise the well-known but always difficult question as to the circumstances in which an appellate court is justified in substituting its judgment for that of the trial judge. But when in the course of the hearing of the appeal your Lordships came to study the full history of the case and, in particular, the report and evidence of Mr. Hatton, it became clear that neither the trial judge nor the Court of Appeal had considered a third possible course of action in place of the two courses (adoption or father resuming parental control) between which both courts believed they had to make a choice. The third option is that a period of access, including staying access, should be granted to the father at the discretion and under the supervision of Mr. Hatton, the court welfare officer, so that an area of uncertainty might be clarified, the uncertainty being whether father and son, whose attachment for each other was a feature of the evidence and the subject of a specific finding by the judge, could develop a sound relationship enabling a stable home situation to be established by the natural parent.
Neither party directed any attention in their submissions to the possibility of a trial period of access before reaching a final decision between the courses of adoption or father's resumption of parental control. No doubt in most cases it does suffice for the court to confine its attention to the questions raised by the parties. And no doubt this usually suffices in wardship cases as well. But a court exercising jurisdiction over its ward must never lose sight of a fundamental feature of the jurisdiction that it is exercising, namely, that it is exercising a wardship, not an adversarial, jurisdiction. Its duty is not limited to the dispute between the parties: on the contrary, its duty is to act in the way best suited in its judgment to serve the true interest and welfare of the ward. In exercising wardship jurisdiction, the court is a true family court. Its paramount concern is the welfare of its ward. It will, therefore, sometimes be the duty of the court to look beyond the submissions of the parties in its endeavour to do what it judges to be necessary. When a local authority or a parent persuades the court that it should make a child its ward, the court takes over the ultimate responsibility for the child. No doubt, it will only be in exceptional cases that the court decides upon a course not advocated by any party to the proceedings. Moreover in a case where a child has been in the care of a localauthority for a considerable period of time and the child has been placed successfully, as in...
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