Salford City Council v W
| Jurisdiction | England & Wales |
| Judgment Date | 2021 |
| Neutral Citation | [2021] EWHC 61 (Fam) |
| Date | 2021 |
| Court | Family Division |
Children - Care proceedings - Jurisdiction - Children living with maternal aunt but local authority not accepting children “looked after” - Maternal aunt seeking declaration of legal status of children under inherent jurisdiction - Whether court to exercise jurisdiction to make declaration of legal status - Whether jurisdiction to be exercised in Family Court or Administrative Court -
In care proceedings in respect of five children the local authority did not accept that the children were “looked after” by it and thus it considered that it had no consequent obligation to pay remuneration to the maternal aunt, the putative special guardian of the children and her husband, as former local authority foster carers pursuant to regulation 7 of the Special Guardianship Regulations 2005. The maternal aunt applied for a declaration under the inherent jurisdiction of the High Court regarding the children’s legal status, contending that a duty on the local authority, or one of its predecessors, had arisen under section 20(1) of the Children Act 1989 in respect of the children and therefore that they had been “looked after” for the purposes of Part III of the 1989 Act. All parties accepted that the court had jurisdiction to make such a freestanding declaration under its inherent jurisdiction notwithstanding that the application claimed no other remedy in the proceedings in which it was sought, but the local authority maintained that the court should not exercise that jurisdiction since the Administrative Court was the appropriate forum for challenging the decision that the putative special guardians did not meet the criteria for financial support.
On the application—
Held, adjourning the application, (1) that the general jurisdiction of the High Court as defined in section 19 of the Senior Courts Act 1981 was vested in all the judges of the High Court irrespective of the division to which they were assigned and the court had a discretionary power under its inherent jurisdiction, as subsumed and incorporated into section 19(2)(b) of the 1981 Act, to grant declaratory relief; that when considering whether to determine an application for a declaration without a claim for any other remedy in the proceedings, there had to be, inter alia, (i) a real and present dispute between the parties before the court as to the existence or extent of a legal right between them, although the applicant did not need to have a present cause of action against the respondent, (ii) each party had to be affected by the court's determination of the issues concerning the legal right in question, (iii) the court had to ensure that all those affected would have their arguments put before the court, and (iv) in all cases, assuming that the other tests were satisfied, the court had to ask if that was the most effective way of resolving the issues raised and consider the other options of resolving the issue; and that when considering whether to grant a declaration or not the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose, and whether there were any other special reasons why the court should, or should not, grant the declaration, for example if a declaration would prejudice the fairness of future proceedings (post, paras 61,62,88).
(2) That hearing the application for a declaration was the most effective way of dealing with the issue since (i) determining the application would serve a useful purpose in circumstances where the issue of financial support was relevant to the issue of special guardianship that was before the court, and (ii) proceedings were already on foot with much of the material relevant to the determination of the application already before the court, which might avoid the need for further and expensive proceedings in the Administrative Court and thereby likely reduce delay and expense in a manner consistent with the overriding objective to deal with matter expeditiously and fairly; that in the very particular circumstances, being satisfied that the court had jurisdiction to grant a declaration as to the children’s legal status and subject to giving directions to ensure a fair hearing for the other local authorities involved, it was appropriate for the court to consider and to determine the application; but that that decision did not alter the general position that the appropriate forum for challenging a decision of the local authority would ordinarily be by way of judicial review (post, paras 86,87,93,94).
APPLICATION
On 20 December 2018 Norfolk County Council sought care orders pursuant to section 31 of the Children Act 1989 in respect of five children. Within those care proceedings Mrs Z, the maternal aunt and putative special guardian of the children, applied for a declaration under the inherent jurisdiction of the High Court regarding the children's legal status for the purposes of Part III of the Children Act 1989.
The matter was heard in private and the judgment delivered in private is reported with leave of the judge on the condition that the anonymity of the children and the parties be strictly preserved.
The facts are stated in the judgment, post, paras 7–28.
Ruth Cabeza (instructed by City Solicitor, Manchester City Council, Manchester) for the local authority.
Lorraine Cavanagh QC and Niamh Ross (instructed by Fosters Solicitors LLP, Norwich) for the mother.
Elizabeth Isaacs QC and Yvonne Healing (instructed by Kenneth Bush Solicitors, Kings Lynn) for the maternal aunt and husband.
Caroline Leggeat (instructed by Alfred Newton Solicitors, Stockport) for the children, by the children’s guardian.
The father did not appear and was not represented.
The court took time for consideration.
19 January 2021. MACDONALD J handed down the following judgment.
Introduction1 In this matter I am concerned with the welfare of B, born in July 2009 and now aged 11, C, born in October 2012 and now aged 8, D, born in May 2011 and now aged 9, E, born in September 2014 and now aged 6 and F, born in April 2016 and now aged 4. The children are represented at this hearing through their Children’s Guardian, by Ms Caroline Leggeat of counsel.
2 There are at present three applications before the court with respect to the children. The first is an application for care orders pursuant to section 31 of the Children Act 1989, first issued on 20 December 2018 by Norfolk County Council. The second is an application by the mother of the children, Ms W, for a prohibited steps order pursuant to section 8 of the Children Act 1989. The third is an application by the maternal aunt and putative special guardian of the children, Mrs Z, for a declaration under the inherent jurisdiction of the High Court regarding the children’s legal status for the purposes of Part III of the Children Act 1989.
3 The local authority now having conduct of the care proceedings in respect of the children is Salford City Council, represented by Ms Ruth Cabeza of counsel. The mother of the children is represented by Ms Lorraine Cavanagh QC and Ms Niamh Ross of counsel. The children’s father is Mr X. He does not appear before the court and is not represented. The children’s putative special guardians, Mrs Z and her husband, Mr Y, are represented by Ms Elizabeth Isaacs QC and Ms Yvonne Healing of counsel. The children have been in the care of Mrs Z and Mr Y since June 2017.
4 All parties agree that the placement with Mrs Z and Mr Y should continue and that the final order that best meets each of the children’s welfare is a special guardianship order in favour of Mrs Z and Mr Y. However, prior to the making of a special guardianship order the mother seeks an order prohibiting Mrs Z from giving effect to her stated intention to have each of the children take the sacraments of initiation in the Roman Catholic faith of Baptism, Confirmation and Holy Communion and the healing sacrament of Reconciliation (as included in the seven sacraments given by the Council of Florence (1439) and reaffirmed by the Council of Trent (1545–1563), the others being the healing of the sick, marriage and the taking of Holy Orders). The mother’s application for a prohibited steps order is opposed by Mrs Z and Mr Y and the Children’s Guardian. The local authority takes a neutral stance on that application.
5 Further, in circumstances where the local authority does not accept that the children are “looked after” by it for the purposes of Part III of the Children Act 1989 and, thus, that it has no consequent obligation to pay remuneration to Mrs Z and Mr Y as former local authority foster carers pursuant to regulation 7 of the Special Guardianship Regulations 2005, Mrs Z seeks a declaration under the inherent jurisdiction of the High Court that a duty on the local authority (or one of its predecessors) under section 20(1) of the 1989 Act arose in respect of the children and thus that the children have been “looked after” for the purposes of Part III of the 1989 Act. All parties submit that the court has jurisdiction to make such a freestanding declaration under its inherent jurisdiction notwithstanding that the application for a declaration claims no other remedy in the proceedings in which it is sought. However, the local authority submits that the court should not exercise that jurisdiction, the appropriate forum for the determination of that issue being the Administrative...
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Salford City Council v W
...judgment in this matter, published with the neutral citation Salford CC v W and Ors (Religion and Declaration of Looked After Status) [2021] EWHC 61 (Fam), in which, in addition to determining an issue concerning the religious upbringing of the children, I decided, for the reasons set out ......