Re "W" (A Minor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE NEILL,LORD JUSTICE OLIVER |
| Judgment Date | 17 January 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0117-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 1985 |
| Docket Number | 85/0894 |
[1985] EWCA Civ J0117-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE EWBANK) (IN CHAMBERS)
Royal Courts of Justice,
Lord Justice Oliver
Lord Justice Purchas
Lord Justice Neill
85/0894
WG. 685 of 1985
MR D. BODEY (instructed by Mr W.J. Church, Solicitor, Hertfordshire County Council) appeared on behalf of the Appellants.
MISS H. POPE (instructed by Messrs. Curwen Carter, Solicitors, Hoddesdon) appeared on behalf of the Respondents.
)
This is an appeal by the Hertfordshire County Council ("the Council") from an Order made on the 7th November 1984 by Ewbank J. sitting in the Family Division. It concerns a minor aged four to whom I shall refer as "Sarah", and raises an important point touching upon the wardship jurisdiction exercised by the Family Division. The learned Judge dismissed an application by the Council to de-ward Sarah. At the same time, he made orders in wardship committing Sarah's care to the Council under Section 7(2) of the Family Law Reform Act 1969, granting access to Sarah's aunt, uncle and grandparents, with a view to assessing whether a bond could be formed between Sarah and her extended family, giving leave to the Council to issue an application under Section 14 of the Children Act 1975("the 1975 Act"), for freeing Sarah for adoption to be heard in January 1985, together with the Originating Summons in wardship. He ordered a welfare report to be prepared for the hearing in January, and ordered that the officer making the report should also act as the reporting officer in the freeing for adoption application. It is difficult to imagine a more expeditious and efficient way of keeping all options open to ensure that Sarah's welfare is safeguarded.
But the Council object. They want to obtain a Care Order under Section 1 of the Children and Young Persons Act 1969 ("the 1969 Act"). This they will do in the Juvenile Court under Rule 13 of the Magistrates' Courts (Children and Young Persons) Rules 1970 (as amended). They can make their own arrangements free from the supervision of the Family Division, and subsequently make another application to the Domestic Court under Rule 3 of the Magistrates' Courts (Adoption) Rules 1976 (as amended) to free Sarah for adoption under the provisions of Section 14 of the 1975 Act. They say that under the authority of "A" v. Liverpool City Council (1982) AC 363, they are entitled to do this, and that the learned Judge was wrong to make the orders which he did. They may well be right.
The history discloses a tragic family story, some details of which it is necessary to rehearse in this judgment. For reasons which will become apparent, neither Sarah's mother nor father were parties to the wardship application. The first and second plaintiffs are the uncle and aunt of Sarah, being respectively the brother of Sarah's father and the sister of Sarah's mother. The third and fourth plaintiffs are Sarah's paternal grandparents. I shall refer to the plaintiffs collectively as "the relatives". The Council's Social Services Department ("the Department") have been involved with Sarah and with her mother since about 1977.
I propose to adopt the method of reference used by the learned Judge, and refer to Sarah's parents as Martin and Carol, and to her aunt and uncle as Steven and Rosemary.
Sarah has two brothers: Tony, born on the 20th August 1979, and Alan, born on the 26th October 1983. Sarah was born on the 11th November 1980. Steven and Rosemary have three children: Tara who is eight; Amanda who is six and Dan who is nearly four. This family live only two miles away from Martin and Carol and their family, but contact between Sarah and them has been limited to occasional social events, such as birthdays and Christmas parties, etc. There is no reason to think that Steven and Rosemary's family is not a satisfactory and happy one.
Martin is an engineer and has, during the past five years, been managing director of his own business which is a design and sales firm. He appears to be very hard-working and successful but there is a suggestion that this has affected his relationship with his extended family, including the relatives. Carol's father died when she was four years' of age. Her elder sister is mentally handicapped and continues to live with her mother.
In adolescence Carol was exposed to pressures thought to be too much for her, with the result that she threatened to taken an overdose on more than one occasion. In 1978 she was referred to the Department when Care proceedings were considered. There was a psychiatrist's assessment of her during this period, which indicated that she was not mentally ill although she presented as a disturbed adolescent.
Tony was conceived when Carol was 16 years of age. She married Martin just before Tony's birth. There has been a normal bonding between Carol and Tony. During this time there was trouble between Carol and her sister Gillian, which resulted in Carol and Martin leaving the home of Carol's mother to find accommodation of their own. However, they continued keeping in close touch with Carol's mother.
From the outset there has been no natural bonding between Carol and Sarah. Quoting from the Welfare Report: "The natural bonding process between mother and child does not seem to have occurred, and Carol has strong negative feelings for Sarah. The situation over the last eighteen months has deteriorated to a point where the mother feels very rejecting of Sarah with feelings of wanting to hurt her".
Carol's psychiatric condition deteriorated during her pregnancy with Alan to the extent that she became so depressed that in September 1983 the family as a whole were referred to the Department by the Nursing Officer for Child Care, as a result of Sarah being kicked by Carol. From that moment Carol and the family received considerable support from her General Practitioner and Health Visitor, and were clearly the subject of attention from various members of the Department. There was a Psychiatric Report from Princess Alexandra Hospital dated the 8th October 1984 before the learned Judge, from which it is clear that, by October 1983, Carol was "…. clearly suffering from a moderately severe depressive illness (depression of her mood, with gloomy pre-occupation, excessive crying and a feeling that she did not care what happened to her or those around her)".
During the latter part of 1983 and the first part of 1984 the Department were resisting Carol's wishes to "get rid of" Sarah and were "trying by various means to help Carol overcome her rejection of Sarah but without success". On the 6th August 1984 Carol and Martin asked the Department to remove Sarah from their home. Officers of the Department discussed the implications of the request, and came to the conclusion that Sarah should be removed for her own safety and emotional needs. She had already been placed on the Department's "at risk" register after a Case Conference in April 1984. During investigations it came to light that Sarah had been bruised and bitten by Carol.
On the 9th August 1984 a Place of Safety Order under Section 28 of the 1969 Act was obtained by the Council in respect of Sarah. In view of the wishes expressed by Carol and Martin, the Council could have received Sarah into care under Section 2 of the Child Care Act 1980 ("the 1980 Act"). No reason is given in the evidence filed by the Council for their decision to make applications under the 1969 Act. On the evidence available there would not appear to be any reason for either a Place of Safety Order or a Care Order. The position could at any time be safeguarded by a resolution under Section 3 of the 1980 Act, but in view of the decision to apply under Section 14 of the 1975 Act, this would also appear to be unnecessary.
Nevertheless the Council commenced proceedings to obtain a Care Order under Section 1 of the 1969 Act. On the 14th September the Cheshunt Juvenile Court made an interim order and adjourned the application to the 2nd October. It was, from an early stage, the Council's intention to apply subsequently to the Domestic Court for an order freeing Sarah for adoption, it being the request of Carol and Martin that such an application should be made. In the meanwhile, the relatives became alerted to what was occurring, and took steps of their own. They issued an Originating Summons dated the 25th September 1984 making Sarah a Ward of Court. In this Summons Steven and Rosemary claimed that Sarah be made a Ward of Court and that they should be granted her care and control. The grandparents claimed access to Sarah.
Not unnaturally, the relatives expressed surprise and regret that they had not been approached by the Department over the question of Sarah's care. I understand this feeling, obviously held genuinely by them. On the other hand, it must be remembered that during the first half of 1984 those responsible in the Department were bending their best endeavours to support Carol and Martin and to dissuade them from rejecting Sarah. Most probably, because of a sense of guilt felt by Carol and Martin in relation to their proposed release of Sarah, they would not have reacted favourably if, on their own initiative, the Department had involved the rest of the family. Indeed, it would almost certainly have been counterproductive. However, after the decision in August 1984, in view of the provisions of Section 2(3)(b) of the 1980 Act, it is not clear why the Department did not investigate the option of placing Sarah with Steven and Rosemary.
Since the making of the interim Care Order, Sarah has been with short-term...
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