Re v (A Minor) (Care or Supervision Order)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
DILLON AND WAITE, L JJ
Care proceedings – application for care order – Judge making supervision order with conditions – whether jurisdiction to attach conditions to supervision order.
Supervision order – no jurisdiction to attach conditions.
The child, who was born in 1977, suffered from cerebral palsy and was severely handicapped. When he was nearly 17 he was described by a consultant paediatrician as suffering from spastic quadriplegia and learning disabilities. He attended a special school as a weekly boarder. Whilst the child's father accepted that it was good for the child to be at the school, the mother felt the school put too much pressure on the child and this had led her to keep him away from school on slight or contrived medical pretexts. The local authority became concerned that the child was not progressing; indeed he was regressing under the influence of the mother's home care. Although this was a devoted care it was felt that she allowed him insufficient stimulus and mobility. As a result, the local authority applied for a care order as the means of securing for the child, during the last year of his minority, the benefits which a continuance of weekly boarding at the special school could confer on him. The Judge found that the threshold criteria laid down in s 31 of the Children Act 1989 had been met so that the court had power to make a care order or a supervision order. However, the Judge declined to make a care order. He held that it would not be in the child's interests to make such an order as it would cause a grave risk of causing a breakdown in the parents' marriage and thus the collapse of the home the child loved and on which he was likely to be at least partly dependent when he came of age. Instead, the Judge made a supervision order subject to conditions including a condition that the child attend the special school as a weekly boarder.
The child, through his guardian ad litem, appealed with the support of the local authority.
Held – allowing the appeal: The Judge's approach to the making of a supervision order was misconceived. The Children Act 1989 made no provision for attaching conditions to a supervision order. Schedule 3 to that Act dealt with directions to be given by the supervisor and requirements which the court could impose with the consent of a "responsible person": in this case the parents. The concept of a supervision order subject to conditions could not be fitted into the framework of the legislation. The Judge had been attracted to the option of a supervision order, subject to conditions, as a means to the achievement of the same ends as a care order but in a way that would be less obviously invasive of the parents' freedom and potentially less disruptive of the marriage. The fallacy underlining that view was in thinking that a supervision order was capable of achieving the same ends as a care order. But if the mother failed to comply with the "requirements"
imposed on her by the supervision order by refusing to allow the child to attend the special school, the only recourse to procure his attendance would be to apply to the court for a care order. Given the imminence of the child's 17th birthday that would have been a wholly empty sanction, as by s 31(3) of the Children Act 1989, neither a care order nor a supervision order could be made after a child had passed his 17th birthday. In the circumstances the Judge, having been influenced by the supposed alternative option available to him of making a supervision order with conditions, had assessed the merits of making or not making a care order from the wrong perspective. It followed that the matter now became at large for the appellate court. The Judge was right to give weight to the risk of a rift in the marriage of the parents. Their separation would have serious consequences for the child. But that risk, grave though the consequences were, was of a great deal less account that the risk of serious injury which the child stood to suffer if he were to be deprived of the opportunities of all that the special school could give him during the crucial last 12 months of his minority. Accordingly a care order would be made.
Statutory provisions referred:Children Act 1989, ss 1, 31, 33, 35 and 100 and Sch 3, Part I, paras 2 and 3.
Case referred to in judgment:S(J) (A Minor) (Care or Supervision Order), Re[1993] 2 FCR 193.
Eleanor Hamilton for the guardian ad litem.
Heather Pope for the mother.
Carol Trimmer for the father.
The local authority did not appear and were not represented.
LORD JUSTICE DILLON.I will ask Waite, LJ to give the leading judgment in this case.
LORD JUSTICE WAITE.The young man who is the subject of this appeal is very nearly 17 years of age. He was born suffering from cerebral palsy and is severely handicapped. He has been described by a consultant paediatrician as suffering from spastic quadriplegia and learning disabilities. He has increased tone in all his limbs and general difficulty in co-ordination. He also suffers secondarily from flexion deformities at his knees, dislocation of his hips and deformed feet. He has a degree of kyphoscolioses. He can only articulate a few words and he communicates mainly by a mixture of speech and gesture, and through the help of an automated signing system. He is the adopted child of Mr and Mrs V (the "mother" and the "father"). They are now in their 50s.
For a number of years their marriage had been childless. When a son was eventually born to them, most tragically, that child died in infancy of a malignant illness which the mother felt the doctors had been far too slow to diagnose. The couple then decided to adopt a baby. In November 1977 they adopted S. He was then four months old, having been born on 5 July 1977.
They were assured that he was a healthy child, but they soon became concerned about his development. After initial medical assurances that he was a normal baby, he was diagnosed as suffering from cerebral palsy in 1978 at the age of one year. In September 1980 the mother and father adopted a second child, R, who is now 14.
No one denies that the home care given to S has been devoted. These proceedings
have arisen solely from social work doubts as to how far that care has taken a form that is appropriate to his needs. The mother's tragic experiences have placed her, in particular, under great strain; to the point that there have been anxieties from time to time as to the effect on her mental health. The marriage of the parents has also come under stress. There are many arguments in the home.
S attended, first as a day boarder and now as a weekly boarder, a special school called Hollybank. It is highly praised by all the professionals concerned in S's welfare, including the psychologist and physiotherapist, because of the stimulus which it affords him and the opportunities it provides for S to receive training in the gradual development of limited skills to improve the quality of his at present very restrictive life. The father, too, accepts that it is good for S to be at Hollybank. The mother, however, is alone in taking a different view. She feels that the school puts too much pressure on S, and that there can be no effective substitute for her own care of him. This has led her to keep him away from school on slight or contrived medical pretexts. Two of those have occurred recently in January and in March of 1993.
The local authority became concerned that S was not progressing. Indeed, he was regressing under the influence of the mother's home care. Although she was constant in her attention upon S, she allowed him in their view insufficient stimulus and mobility. Psychological opinion, and the advice of a physiotherapist, has confirmed this view. S is allowed while at home to sit passively for too long – with harmful effects not only to his physical development and the injury which his limbs and posture suffer as a result, but also upon his emotional and intellectual development, for he needs change, stimulus and companionship. Accordingly in March 1993 a child protection conference concluded that S was at risk of both actual and likely emotional abuse and neglect.
In December of that year an application was made by the local authority for public law relief under the Children Act 1989 – originally for a supervision order but later (by notice given in April 1994) for a care order. At the hearing of that application, which took place before Judge Lightfoot on 5 May 1994, the guardian ad litem supported the local authority's claim for a care order as the means of ensuring for S, during the last year of his minority, the benefits which a continuance of weekly boarding at Hollybank can confer on him, and as the means of avoiding, for that brief but crucial stage of his life, the retarding effect of simply staying at home.
The Judge...
To continue reading
Request your trial
-
Re T (Care Order)
...1 FLR 1569, [2008] 3 WLR 1316, CA. T (A Minor) (Care Order), Re[1994] 1 FCR 663, [1994] 1 FLR 103, CA. V (care or supervision order), Re[1996] 2 FCR 555, [1996] 1 FLR 776, AppealThe local authority appealed against a care order made by Judge Ibbotson on 11 July 2008 in respect of B, a child......
-
Re K (supervision orders)
...Re[1994] 1 FCR 663, CA. T (accommodation of child by local authority), Re[1995] 1 FCR 517. V (a minor) (care or supervision order), Re[1996] 2 FCR 555, ApplicationIn care proceedings in which the local authority applied for a supervision order the parent of the children accepted that the th......
-
Re v (A Minor) (Injunction: Jurisdiction)
...made a supervision order. On appeal the Court of Appeal substituted a care order: see Re V (A Minor) (Care or Supervision Order)[1996] 2 FCR 555. The young man was then aged 17 and it was appreciated that the care order would expire when he attained his majority. As a result, the young man,......
-
Re B (A Minor) (Supervision Order: Parental Undertaking)
...Order), Re[1996] 2 FCR 719. S and D (Child Case: Powers of Court), Re[1995] 1 FCR 626. V (A Minor) (Care or Supervision Order), Re[1996] 2 FCR 555. Williams v Fawcett [1986] QB 604; [1985] 1 WLR Elizabeth-Anne Gumbel for the guardian ad litem and local authority. William Holland for the mot......