Re W. (A Minor) (Wardship: Jurisdiction)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scarman,Lord Diplock,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Brightman |
| Judgment Date | 02 May 1985 |
| Judgment citation (vLex) | [1985] UKHL J0502-2 |
| Date | 02 May 1985 |
| Court | House of Lords |
[1985] UKHL J0502-2
Lord Scarman
Lord Diplock
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Brightman
House of Lords
My Lords,
In 1981 your Lordships House unanimously declared the limits to be accepted by the High Court upon the exercise of its inherent wardship jurisdiction in respect of children either ordered or received into care by a local authority under the statutory code for the care of children in need or trouble. Parliament by a series of statutes, the detailed provisions of which are often difficult but the purpose of which is clear, has entrusted the responsibility for the care of such children to local authorities subject to safeguards (some of them judicial in character) specified in the legislation. The case in which the limits upon the High Court's intervention were set was A. v. Liverpool City Council [1982] A.C. 363. In that case a local authority had obtained a care order in respect of a child pursuant to section 1(2)(a) and (3) of the Children and Young Persons Act 1969 when the mother commenced wardship proceedings, being dissatisfied with the local authority's decision as to her access to the child. The mother failed; the judge discharged the wardship proceedings; and the House held that the judge was right to have done so. Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code.
Such hopes have not been fulfilled. In this appeal the House is faced with a submission that the limits set in the Liverpool case are guidelines rather than boundary lines, that the categorisation in the speeches of Lord Wilberforce and Lord Roskill in that case of situations where the High Court may exercise its wardship jurisdiction notwithstanding the existence of care proceedings is not exhaustive, and that there remains a residual category of exceptional cases (to which it is said the present case belongs) which will require the intervention of the High Court.
My Lords, the submission is misconceived. The ground of decision in A. v. Liverpool City Council [1982] A.C. 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to R.S.C. Order 53: but no abuse of power has been, or could be, suggested in this case. The whole object of the appellants in instituting wardship proceedings in respect of the child in this case was to secure that the High Court would be in a position to review the decisions of the local authority on the merits of the case.
In the Liverpool case Lord Wilberforce put the point succinctly at [1982] A.C. 363, 372: "Parliament has by statute entrusted to the local authority the power and duty to make decisions as to the welfare of children without any reservation of a reviewing power to the court." At p. 373 he indicated where the line had to be drawn between the wardship jurisdiction of the High Court and the statutory responsibilities of the local authority:
"This is not to say that the inherent jurisdiction of the High Court is taken away. Any child, whether under care or not, can be made a ward of court by the procedure of section 9(2) of the Law Reform (Miscellaneous Provisions) Act 1949. In cases (and the present is an example) where the court perceives that the action sought of it is within the sphere of discretion of the local authority, it will make no order and the wardship will lapse. But in some instances, there may be an area of concern to which the powers of the local authority, limited as they are by statute, do not extend. Sometimes the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continued with a view to action by the court. The court's general inherent power is always available to fill gaps or to supplement the powers of the local authority: what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority."
Lord Roskill was to the same effect. He analysed the existing case law, which revealed a development over a period of twenty years in line with the principle enunciated in A. v. Liverpool City Council [1982] A.C. 363. His Lordship did, however, comment at p. 379 that, while the exercise of the wardship jurisdiction must be closely circumscribed no useful purpose would be served in attempting to define limits "for cases of this class vary infinitely." This dictum has been seized upon by the appellants as suggesting the existence of exceptional cases in which the High Court may rightly intervene to review decisions of the local authority on their merits. I do not understand Lord Roskill to have meant anything of the sort. His dictum was, and remains, a valuable reminder that since the inherent wardship jurisdiction of the High Court has not been taken away by statute the limits to its exercise cannot be more precisely defined than that they must be such as to preclude the court from interfering on the merits with decisions which Parliament has enacted are within the province of the local authority.
Neither Lord Wilberforce nor Lord Roskill discussed the case of M. v. Humberside County Council [1979] Fam. 114, though it was cited. In that case, at p. 123, Sir George Baker P. contemplated the possibility of exceptional cases requiring the intervention of the High Court. He returned to the point in In re J. (a minor) (Wardship: Jurisdiction) [1984] 1 W.L.R. 81, 87. I do not doubt that the Humberside case and the post- Liverpool case of In re J. were rightly decided on their facts: but, in so far as they contain dicta suggesting that there is an exceptional class of case in which, though Parliament has entrusted decision on the merits to the local authority, the High Court may intervene to review the merits, the dicta are a false guide to the true principle of the law.
I conclude, therefore, that the submission that the Liverpool case did no more than set guidelines to the exercise of wardship jurisdiction by the High Court must be rejected. The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or a reviewing power over the merits of decisions taken administratively by the selected public authority.
The second submission on behalf of the appellants is that upon a correct understanding of the facts and the law this is a case where the local authority's powers are inadequate to enable full faith and credit to be given to the overriding principle of the law (whether applied judicially or administratively) that in matters of custody, control and upbringing the welfare of the child must be the first and paramount consideration. The High Court, it is submitted, has the necessary powers: it can, therefore, exercise its wardship jurisdiction. If this should be a correct understanding of the facts and the law, the appellants would be in a position to submit that the case falls within the limits set by the House in A. v. Liverpool City Council [1982] A.C. 363.
In the circumstances of this case the submission, when particularised, becomes that it is in the interest of the child that careful consideration should be given to keeping her within her natural family even though she cannot remain with her parents and to granting care and control to her uncle and aunt and access to her grandparents. It is said that there are inadequacies in the statute law related to care proceedings in the juvenile court and in the statutory provision enabling a child to be freed for adoption which can be overcome by making the child a ward of court.
I shall refer to the child as Sarah. She was born on 11 November 1980, the second child of her parents. Their first-born was a boy. From very early days the mother had an emotional problem with her daughter towards whom she developed an aversion. This was in marked contrast to her love for her son. The father, it would seem, did not suffer in the way the mother did: but, being anxious for the future of his married life, he came to share the feeling that Sarah (without any cause offered by the child) was an obstacle to the future happiness of the family. The parents' attitude towards her became intensified with the birth of their third child, a boy, on 26 October 1983. He, like his elder brother, had a loving relationship with his parents. But during the year following his birth the two parents unhappily, but as they genuinely felt inevitably, came to reject Sarah. The mother could no longer trust herself to care for the child and her daily needs, and fell mentally ill. In August 1984 her feelings towards Sarah erupted into an incident of minor violence: she bruised and bit her little girl....
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