Re A (Supervision Order: Extension)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOFFMANN,SIR TASKER WATKINS,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 10 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1110-17 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. FAFMI 94/0516/F |
| Date | 10 November 1994 |
[1994] EWCA Civ J1110-17
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(ON APPEAL FROM THE HIGH COURT)
(FAMILY DIVISION)
(Mr. Justice Singer)
Before: Lord Justice Butler-Sloss Lord Justice Hoffmann and Sir Tasker Watkins
No. FAFMI 94/0516/F
In the Matter of
MISS L. GODFREY QC and MISS D. GRESTY (instructed by Messrs. Lister Croft, Pudsey) appeared on behalf of the Appellants.
MISS S. FARRAR appeared on behalf of the 1st Respondent
MR. M. BENNETT QC and MR. R. BICKERDIKE appeared on behalf of the 2nd Respondent.
LADY JUSTICE BUTLER SLOSS: This is an appeal by a mother from the decision of Singer J on the 22nd March 1994 allowing an appeal from the decision of the Leeds and District Family Proceedings Court on the 7th February 1994. The child concerned in these proceedings is C aged 11, born on the 24th February 1983. She lives with her mother where she has always lived and there is no suggestion, whatever the outcome of this appeal, that she should be removed from her home. She has however certain problems and those problems have been exacerbated by the failure of her mother to co-operate with the local authority plans for the child including attending at outpatient clinics for paediatric assessment and therapy. On the 27th September 1992, the local authority made an application under the provisions of s31 of the Children Act 1989 for a supervision order in respect of C. The threshold criteria were clearly met for a s31 order and the Family Proceedings Court made a supervision order to run for 12 months. The social workers came to the conclusion that an extension of the supervision was needed in the interests of the child and within the 12 months applied to the court for an extension of the order under the provisions of s35 and schedule 3, part II, paragraph 6(3) of the Act. These are specified proceedings for the purposes of s41 and a guardian ad litem was appointed. The guardian attended court and recommended that a care order should be made in place of the supervision order. This was resisted by the mother and at that time by the local authority in the mistaken belief that they would not be able to leave the child with her mother if a care order was made.
The Family Proceedings Court held that they had no jurisdiction to make a care order on an application for extension of a supervision order. On the hearing of the appeal before the judge it was conceded that the justices' reasons for their decision were unsustainable. Singer J held that, on the hearing of an application to extend a supervision order, the threshold criteria which had originally been found to be met were to be considered at the time of the extension application. Such reconsideration imported the provisions of s31. In deciding whether to make an order under s31 a court had the power to make a care order on the application for a supervision order. Consequently he found that the court might, having applied the criteria in s1 as well as the criteria in s31(2), make a care order although the application before the court was only for an extension of the supervision order.
The mother has appealed from that decision and is supported in the appeal by the local authority. Miss Godfrey QC for the mother has argued that an application to extend a supervision order is a different kind of order from the original application under s31. The threshold criteria which have to be met for the original order remain the basis for the continuation of an existing order and it is not necessary to prove that the threshold criteria still apply at the hearing of the extension application. She drew a distinction between a fresh application and an extension application and in the latter case the proving again of the threshold criteria was neither necessary nor appropriate. It was sufficient for the local authority to demonstrate that the s1 welfare criteria were met in order to justify an extension of the order.
She relied upon a number of indications in the Children Act in support of her argument, such as the different route by which an application to extend a supervision order has to travel using a separate application form, the treating of an application under Schedule 3 part II paragraph 6 as specified proceedings under s41(50(i) rather than as proceedings for making or refusing to make a supervision order under s41(5)(h)(i). She also relied upon s39, the discharge and variation of care orders. The section is silent as to whether the threshold criteria are or are not to be considered at the time of an application for discharge or variation. But s39(4) and (5) make specific provision for the substitution of a supervision order for a care order. Subsection (5) states:-
"When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require s31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded."
It is clear that Parliament in enacting the Children Act recognised circumstances when under Part IV it was not necessary to prove again the threshold criteria for a supervision order.
Mr Bennett QC for the guardian ad litem awas conceded that the justices' reasons for their decision were unsustainable. Singer J held that, on the hearing of an application to extend a supervision order, the threshold criteria which had originally been found to be met were to be considered at the time of the extension application. Such reconsideration imported the provisions of s31. In deciding whether to make an order under s31 a court had the power to make a care order on the application for a supervision order. Consequently he found that the court might, having applied the criteria in s1 as well as the criteria in s31(2), make a care.
Mr Bennett argued that the requirement for reasonable grounds for believing that the s31(2) threshold criteria were to be met before an interim order was made, which might be made pending the making of an extended order, could not be greater than the requirements for the substantive application. He also argued that Parliament could not have intended to require a local authority who failed to apply for an...
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