S. v Huddersfield Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buckley,LORD JUSTICE STEPHENSON |
| Judgment Date | 14 June 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0614-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 1974 |
[1974] EWCA Civ J0614-2
In The Supreme Court of Judicature
Court of Appeal
(Appeal of defendant from Order of His Honour Judge Ould, Huddersfield County Court, dated January 23, 1974.)
Lord Justice Buckley and
Lord Justice Stephenson.
MR F. MITCHELL for MR N. CLOUGH, (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Appellant (Second Respondent).
MISS E. APPLEBY, (instructed by Messrs. Sharps, Pritchard & Co.) appeared on behalf of the Appellant (First Respondent).
MR M. MILLER. Q.C. (instructed by Mersrs. Batchelor, Street, Longstaffe, Agents for Messrs. Leaoyd Sisson & Co. of Huddersfield) appeared on behalf of the Respondents (Applicants).
This is an appeal from an interim adoption order made under the Adoption Act 1958, Section 8, by His Honour Judge Ould in the Huddersfield County Court on the 23rd January, 1974. It related to a girl who was born on the 24th March, 1965, out of wedlock. Her father is a Jamaican who has lived in this country since 1961. Her mother is an English woman. She left the father shortly after the birth of the child, leaving the child with him. The learned judge found that the mother then virtually abandoned the child and that she has had nothing to do with her since and had married another man. He said: "Although she has not consented to the proposed adoption there would be no difficulty in dispensing with her consent in the light of her abandoning all parental obligations almost from the time of the child's birth." The father took care of the child for a short time and then put her into the care of his mother and sisters. Early in 1970 the father's sister who was then looking after the child felt unable to continue to accept this responsibility on account, as she alleged, of lack of sufficient financial provision by the father.
On the 2nd March, 1970, the child was received into the care of the respondent borough council under the Children Act 1948, Section 1. She was boarded out with foster parents and for a time was cared for in one of the council's children's homes. On the 23rd June, 1971, she was boarded with the applicants as a foster child. There was at this stage no intention that the applicants should adopt her. under the recent reorganisation of local government areas the Huddersfield Borough Council has ceased to exist and its functions have been absorbed by the new Kirklees Metropolitan BoroughCouncil. Nothing turns on this. I shall refer to the Huddersfield Borough council as "the council".
In March, 1973, the father married a woman by whom he had already had a son. He then lived, and still lives, In Essex.
The applicants are a married couple living in or near Huddersfield. They married in September, 1972, and have one child of their own. The wife has two children by a previous marriage.
On the 15th May, 1973, the council passed a resolution under the Children Act 1948, Section 2, that all the rights and powers of the child's mother should vest in the council. Thereupon all the parental rights and powers of the chlld's mother vested in the council under Section 3 (2) of the Act, and the mother ceased to have any right to require the council to hand the child over to her under Section 1 (3) of the Act. The father, being a putative father only, has no relevant rights or powers in relation to the child. In October, 1973, the applicants applied for an adoption order in respect of the child in the Huddersfield County Court. It seems that at about this time the council was considering introducing the child to her father with a view to her ultimately being put into his care. In his reasons for his decision the learned judge said that the father apparently took very little interest in the child, and was content to leave the responsibility to others for a period of some two to three years, but that about the middle of 1972 he began to take a more active interest, and had thereafter shown an increasing desire to take whatever steps he could to recover his child. He has visited the child on more than oneoccasion at the applicants' home and has had the child to stay with him in Essex.
At some time in 1975 the applicants instituted wardship proceedings in relation to the child, but these were dismissed in December, 1973.
The applicants' application for an adoption order came before the learned judge on the 23rd January, 1974, when he heard solicitors or counsel for the applicants, the council and the father. Notwithstanding that the application was for an adoption order, the learned judge made an interim order only. Both the council and the father appeal from that order. Three points are taken on the appeal: first, that the learned judge had no power to make the order without either having or dispensing with the consent of the mother secondly, that the effect of the order is to fetter the powers of the council under the children Act 1948 and thirdly, that the judge gave insufficient consideration to the welfare of the child in making an interim order.
The Adoption Act 1958, Section 8 (2), provides that all such consents as are required to an adoption order shall be necessary to an interim order, but subject to a like power on the part of the court to dispense with any such consent. The mother did not consent to the order made by the learned judge. The formal order, which is in the form prescribed in Form No. 11 in the schedule to the Adoption ( County Court) Rules 1959, recites that "all conditions precedent to the making of such an order have been fulfilled". It contains no record of the learned judge having dispensed with the mother's consent. Enquiries which were made during the hearing of this appealindicate that it is not the practice either in the county courts or in the High Court, when a judge dispenses with a consent under this Act, for that fact to be formally recorded) in any order which is drawn up. This seems to me to be unfortunate. Dispensing with consent is a judicial act which has a dlrect bearing upon the propriety and validity of an adoption order and ought, I think, to be recorded in the court's order, either by a recital or preferably as a substanttive part of the order. It does not appear either from the learned Judge's note made at the time of the hearing, or from his written reasons for decision, which he recorded at a later date, that he did formally dispense with the mother's consent to the interim order. It is, however, clear from his written reasons that he had the provisions of Section 8 of the Act in mind. I find it difficult to suppose that. he could have overlooked subsection (2) of that section. The passage which I have already quoted from his written reasons, in which he said that there would be no difficulty in dispensing with the mother's consent, should clearly, I think, be read in reference to any full adoption order which might finally be made in the proceedings but the natural inference to be drawn from it is, in my opinion, that the learned judge was of the view that, as it would be proper to dispense with her consent on a final order, it could not be improper to dispense with her consent to the interim order. By making the order as he did, I think that inferentially the learned judge did dispense with the consent of the mother to that order. It is unsatisfactory that such a matter should be left to inference, but I do not think that we would be right in the circumstances in treating thisorder as a nullity for want of formal dispensation with the mother's consent. In any case, it seems to me that upon rehearing the matter on this appeal it must be within our powers in this court to dispense with her consent, and if necessary I should be prepared so to do.
The second point depends upon the decision of this court in ( Re: "M" (an Infant) 1961 1 Ch. p. 328). In that case, as in the present case, a local authority had passed a Section 2 resolution in respect of a child in the authority's care who was boarded out with a foster mother. The local authority required the foster mother to return the child to them, but she refused, conceiving that such a course would not be in the child's best interest. The local authority commenced proceedings for a writ of habeas corpus, but before these could come to fruition the foster mother issued a summons constituting the child a ward of court. When the matter came before Mr. Justice Cross (as he then was) he directed that the child should cease to be a ward of court. The foster mother appealed. The court affirmed the decision of Mr. Justice Cross. Lord Evershed, Master of the Rolls, having observed that the propriety of what the local authority or its officers had done, as distinct from their wisdom, was not questioned, held that the matter of judging the best interests of the child in the circumstances of the case had been placed by Parliament in the exclusive discretion of the local authority, and that in the result the prerogative of the Crown as parens patriae must be treated as pro tanto restricted. Lord Evershed held that the royal prerogative was not ousted or abrogated for all purposes, but that a judge in whom that prerogative power was vested should, acting onfamiliar principles, not exercise control in relation to duties or discretions clearly vested by statute in a local authority.
In a later case of ( Re: "K" (an Infant) and re: "M" (an Infant) Hertfordshire County Council v. "H" 1972 3 A. E. E. p. 769), where a local authority had assumed parental rights in respect of two Illegitimate children under the Children Act 1948, Section 2, a divisional court of the Family Division held that justices to whom an application for access was made by the childrens' father under the Guardianship of Minors Act 1971, Sections 9 and 14, had no alternative but to decline the application and leave the discretion with...
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