Re T (Minors) (Care Proceedings: Wardship)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE PURCHAS |
| Judgment Date | 27 October 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1027-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 October 1988 |
| Docket Number | 88/0863 |
[1988] EWCA Civ J1027-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MRS JUSTICE BOOTH
(BRADFORD DISTRICT REGISTRY)
Royal Courts of Justice
The President
(Sir Stephen Brown)
and
Lord Justice Purchas
88/0863
MR HUGH BENNETT, Q.C. and MISS ELEANOR HAMILTON, instructed by Messrs Sharpe Pritchard & Co. (London Agents for M.R.G. Vause Esq., Chief Legal and Administrative Officer, Kirklees Metropolitan Borough Council), appeared for the Appellant (Fourth Defendant).
MR MICHAEL HARRISON, Q.C. and MISS REBECCA THORNTON, instructed by Messrs Williscroft & Co., appeared for the First Respondent (Plaintiff).
MR JAMES GOSS, instructed by Messrs Ramsdens (Huddersfield), appeared for the Second Respondent (Second Defendant).
MISS ANITA RYAN, Q.C. and MR STEPHEN GLOVER, instructed by Messrs Parker Bird (Huddersfield), appeared for the Sixth Respondent (Sixth Defendant).
On the 16th June Mrs Justice Booth decided as a preliminary issue that the High Court should exercise its wardship Jurisdiction in respect of four children of one family who individually are the subjects of two sets of care proceedings brought by two different local authorities in two different juvenile courts. After hearing argument she ordered that the wardship should be confirmed. The Eirklees Metropolitan Council as the local authority concerned with three of the children now appeals against that order. The other local authority concerned, the City of Bradford Metropolitan Council, whilst not conceding the position which it adopted before the judge, nevertheless does not wish to pursue an appeal in this court.
The facts which gave rise to the hearing before the learned judge are succinctly set out in her judgment. The four children are G, a boy of 16, S, a girl of 15, L, a girl of 13 and R, a boy of 9 years of age. G, S and L are the children of the mother by her first husband, Mr T. The fourth child, R, is the child of the mother by her second husband, Mr M. In May 1987 the mother with Mr M and all her four children were living in Bradford. The girl, S, made an allegation that she had been raped. She did not at that stage identify the alleged perpetrator. However, in November 1987 she alleged that her stepfather, Mr M, the mother's second husband, had sexually abused her. As a result of her disclosures a Place of Safety Order was obtained by the City of Bradford Metropolitan Council, Social Services Department, and on the 8th of December 1987 the Bradford Juvenile Court made an interim care order placing S in the care of the City of Bradford Metropolitan Borough Council. At the end of November 1987 the mother with Mr M and her three other children moved from Bradford to Huddersfield. They thereupon came within the area of the Kirklees Metropolitan Council. As a result of the order made in Bradford in relation to S the Kirklees Social Services Department was informed of the situation. They got in touch with the family but at that stage decided to take no action. By this stage Mr M, the stepfather of S, had been charged with an offence of indecent assault upon S and was no longer living in the family home. At the hearing of this appeal this court has been told that Mr M has been convicted of indecent assault and has been sentenced to a term of imprisonment. Meanwhile S resided in a children's home in Bradford pursuant to the interim care order of the Bradford Juvenile Court. She then made an allegation that Mr M had also sexually abused her elder brother, G, and she made yet a further allegation that the maternal grandfather had sexually abused L. As a result of these further allegations Kirklees Social Services Department obtained a Place of Safety Order in respect of L and she was taken from the mother's home in Huddersfield and interviewed. She did not herself make any allegations when seen, and was permitted to return home. In March 1988 S made further allegations of sexual activity within the family which prompted the Kirklees Council to obtain Place of Safety Orders in respect of the three children, G, L and E, who then, resided in their area.
Police interviews it is said disclose that R has apparently admitted having had sexual intercourse with the two girls when he was aged seven but G had always contended that the allegations concerning him are a complete fabrication. On the 3rd March 1988 the Bradford Juvenile Court made a further interim care order in respect of S in favour of the City of Bradford Council. After making a short visit to her mother's home in Huddersfield S returned to reside in the children's home in Bradford. On the 31st March 1988 the Huddersfield Juvenile Court on the application of the Kirklees Metropolitan Council made interim care orders in respect of the three children, G, L and R. L and R are presently residing in two different children's homes. G is currently at an assessment centre.
In the proceedings in each juvenile court a Mrs Jane Elizabeth Booth was appointed to act as guardian ad litem to all the children. In two affidavits which she has sworn she has made known her concern as to the difficulty which she feels she faces in dealing with two separate sets of proceedings in two different courts. It is apparent that there is a sharp conflict of interest in particular "between the child S and the child G. Indeed, G has since been ordered to be separately represented. In consequence of this he was separately represented at the hearing of this appeal. On the 7th April 1988 as a result of the difficulties which she felt she encountered Mrs Booth acting on her own initiative took the step of issuing an originating summons in wardship. Her stated purpose was to enable one court to exercise jurisdiction over the whole family. The originating summons which appears at page 1 of the bundle before the court is entitled "In the matter of S, G, L and R (I give initials in order to preserve their anonymity) between S (Plaintiff) (by her Guardian Ad Litem, Jane Booth) and the City of Bradford Metropolitan Council" and the mother, the father of S, the Kirklees Metropolitan Council and Mr M, the mother's second husband, are all named as defendants. The form of the summons then reads:
"By this summons, which is issued on the application of the plaintiff S…(by her Guardian Ad Litem Jane Booth)…the plaintiff claims against the defendant 1. That the children—(and all are named)—be made Wards of this Honourable Court during their minority
2. That the Court do make orders regarding care and control and access regarding these children."
On the 16th May 1988 the City of Bradford Metropolitan Council issued a summons seeking the discharge of the wardship in respect of S, and Kirklees Metropolitan Council also applied to discharge the wardship in respect of G, L and R. At the hearing before the learned judge they relied upon the principles established in the cases of A. v. Liverpool City Council [1982] A.C. 363 and in In re W. (A Minor) [1985] A.C. 791 each submitting that both local authorities concerned had acted in accordance with the statutory code relating to children in trouble or need and that in the light of those decisions it was neither necessary or appropriate for there to be a review of the Councils' actions by the High Court. The cases could and should be dealt with in accordance with the statutory code. For the guardian ad litem it was submitted that the court could and should exercise its wide jurisdiction to entertain the originating summons and to decide the issues relating to all the children. It was argued that the 1969 Act did not provide any means whereby one court could entertain care proceedings relating to children of the same family if they happened individually to reside in different areas. It was claimed that this constituted a lacuna in the statutory powers of juvenile courts which the High Court could and should fill by the exercise of its wardship jurisdiction.
The two authorities submitted that as "guardian ad litem" appointed under the 1969 Act Mrs Booth had no remit or authority to embark upon wardship proceedings. They pointed out that the summons was issued in the name of the child S as plaintiff "by her guardian ad litem". The child was then in fact in the statutory care of the Bradford Metropolitan Council. The District Registrar in due course ordered that she should be referred to as "next friend". Nevertheless, the learned judge decided that in the circumstances of this case the court did have power to exercise its wardship jurisdiction and that the circumstances of the case required that it should do so. She said at page 16 of the transcript of her judgment at letter B:
"Neither juvenile court has jurisdiction to transfer the case before it to the other court and neither court has jurisdiction to transfer a case to the High Court. Therefore the only means by which the guardian ad litem could achieve a hearing before one tribunal was to invoke the wardship proceedings."
She then ordered that the wardship should be confirmed.
On behalf of the Kirklees Metropolitan Council Mr Hugh Bennett, Q.C., in a careful argument submitted that the learned judge was in error in deciding that there was a lacuna in the powers of the juvenile courts under the provisions of the 1969 Act. He reviewed the structure of the Act, pointing out that section 2(2) required a local authority to bring care proceedings in respect of a child residing in its area if it should appear to it that there were grounds for bringing care proceedings. He acknowledged that by virtue of section 2(11) the juvenile court in which care proceedings were to be initiated must be the court for the area in which the child...
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