Re T (A J J) (an Infant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE WIDGERY |
| Judgment Date | 19 June 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0619-2 |
| Date | 19 June 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0619-2
In The Supreme Court of Judicature
Court of Appeal
(Appeal from Judgment of Mr Justice Ungoed-Thomas)
Lord Justice Russell
Lord Justice Widgery and
Lord Justice Cross
Mrs CM. PUXON and Miss M. HIGGINS (instructed by Messrs Lovell, Son & Pitfield, Agents for Messrs Roper & Roper, Bridport) appeared on behalf of the Appellants (Plaintiffs).
Mr J.D. WAITE and Miss E. APPLEBY (instructed by Messrs Sharpe, Pritchard & Co., Agents for K.A. Abel, Esq., Dorchester) appeared on behalf of the Respondents (First Defendants).
Mr J.W. MISKIN, Q.C. and Mr S.B. THOMAS (instructed by Messrs Batchelor, Fry, Coulson & Burder) appeared on behalf of the Respondents (Second Defendants).
This is the judgment of the Court.
We decided to hear this appeal in camera with a view to protecting the infant from harm, and we now give our judgment in open court taking every care that we can to avoid identification of the persons concerned. No doubt diligent investigation would enable anyone interested to tear aside the veil. But it must be borne in mind that the infant is a ward of court under the judge's order, and if anyone is minded to question or interview the infant they may well be at risk of being in contempt.
The first question on this appeal is whether as a matter of law the Chancery judge in wardship proceedings can substitute his own views, as to the best course to be adopted in relation to the care and control of an infant, for the views of a local authority, when a fit person order has been made and remains in existence in respect of the infant by a juvenile court in favour of the local authority as the fit person, and the course proposed by the local authority is proposed pursuant to the powers and duties conferred and imposed in the event of such an order by the relevant statutory provisions. If the answer to that question is in the negative, then no purpose is served by investigation by the Chancery judge of the facts of the case. Since in our judgment the answer is in the negative, only the barest statement of facts will be necessary.
Fit person orders are made under section 62 of the Children and Young Persons Act 1933. That section empowers a juvenile court, if satisfied that a child or young person brought before it under the section is one in need of care and protection, to commit the child to the care of any fit person, whether a relation or not, who is willing to undertake the care of him. The court under the section may take a number of other steps, including sending to an approved school: but the committal to care is the only one now relevant. Children and young persons in need of care or protection were at the relevant time definedin section 61 as amended by subsequent legislation: they included those whose parents are unfit to exercise care and guardianship, those falling into bad associations, exposed to moral danger or beyond control: we need not list all the circumstances envisaged in the definition: the relevant definition upon which the fit person order was based in this case was that the infant was neglected in a manner likely to cause her unnecessary suffering. Section 76(1) of the Act provided that the local authority is deemed to be a fit person, and that accordingly a fit person order may be made in favour of the local authority which may undertake the care of the child. On the 20th September 1962 the juvenile court made a fit person order in favour of the relevant local authority on the ground stated, in respect of the infant in this case, who was born on the 19th October 1960.
Section 75(4) of the Act provides that the person in whose favour a fit person order is made shall, while the order is in force, have the same rights and powers and be subject to the same liabilities in respect of the child's maintenance as if he were his parent, and that the child shall continue in his care notwithstanding any claim by a parent or any other person.
Section 13 of the Children Act 1948 (replacing section 84(3) of the 1933 Act) empowered a local authority to discharge its duty to provide accommodation and maintenance for a child committed to its care under a fit person order by boarding him out with foster parents. In the present case the local authority did this with the present appellants.
A fit person order may be varied or revoked by a juvenile court: see section 84(6) of the 1933 Act, as amended by the Children and Young Persons Act 1963.
By section 5(1) of the Family Allowances and National Insurance Act 1956 it was provided that where a fit person order has been made in favour of a local authority then "if it appears to the local authority that it will or may be for the benefit of(the child) so to do" the local authority may allow, until the, local authority otherwise determine, the child to be under the charge and control of a parent of the child. Sub-section (2) of the same section provided that if having so allowed the parent to have charge and control of the child it appears to the local authority that the fit person order is no longer necessary and might properly be revoked, the local authority shall apply under section 84(6) of the 1933 Act for such revocation. Since the hearing by the judge section 13 of the Children Act 1948 and section 5 of the Family Allowances etc. Act 1956 have been replaced by a new section 13 of the 1948 Act: see the Children and Young Persons Act 1969, section 49 and Schedule 6. The new section 13 provides that the local authority shall discharge its duty to provide accommodation and maintenance for a child in its care under a fit person order by boarding him out or making other suitable arrangements, and also empowers the local authority in the course of discharging its duty to allow the child, either for a fixed period or until the local authority otherwise determine, to be under the charge or control of a parent.
In the present case the local authority required the foster parents, in accordance with the statutory undertaking necessarily given by them when the child was given to their charge, to return the child. The purpose and intention of the local authority was to act under section 5(1) of the 1956 Act, and is to act under the new section 13 of the 1948 Act, and to allow the child to be in the charge and control of her mother, for a trial period in the hope that a full mother and daughter relationship may be established, it appearing to the local authority that it will or may be for the benefit of the daughter so to do. The foster parents, taking a different view, refused to comply with their undertaking, and made the child a ward of court. The judge decided, following the principles set out in Re "M" (1961 Chancery, page 328) that the Chancery Court would not intervene to assert its wardship jurisdiction in a case such as this whereParliament had confided to the local authority full competence and authority to decide upon the care and control of the child. The judge did in fact receive full evidence on the matter, because it was suggested that there had been some impropriety or breach of statutory duty or lack of bona fides on the part of the local authority in arriving at its conclusion under section 5(1) of the 1956 Act, a suggestion which he summarily rejected. Moreover having received full evidence he delivered judgment, in case it should be considered (contrary to his view of the law) that the Chancery Court should impose its own opinion of the best interests of the child, on the merits of the case, and was in agreement with the view of the local authority. Accordingly he rejected both on the law and on the facts the contention of the foster parents that the child should remain in their care and control. He did not end the wardship.
We have not set out fully the statutory provisions governing the powers and duties of a local authority in whose favour a fit person order has been made. Suffice it to say that further provision is made for matters of detail in Part II of the Children Act 1948, including section 13 already mentioned, specifying the duties of the local authority and conferring on the Home Secretary a rule making and supervisory capacity. That Part II applies equally to children taken into care by a local authority under the 1948 Act. Re "M" was a case of such a child, and in considering whether the principles of that decision are applicable to a fit person order under the 1933 Act it is of course highly relevant to notice similarities in the statutory codes applicable to the two cases.
We therefore proceed to notice the statutory provisions under the 1948 Act additional to the common ground under Part II thereof. By section 1 of the Children Act 1948 where it appears to a local authority that a child has no parent or guardian or has been abandoned or is lost: or that the child's parents or guardian are incapable of providing for the child's properaccommodation maintenance and upbringing: and further that the intervention of the local authority under this section is necessary in the interests of the welfare of the child: then it becomes the duty of the local authority to receive the child into their care, and so to keep the child as long as the welfare of the child appears to require it. That section does not however authorise the local authority so to keep the child if a parent or guardian desires to take over the care. Under section 2 a local authority can pass a resolution in respect of a child so taken into care conferring on the local authority all the rights and powers of the parents or guardians...
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