A v A and Newham London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
HOLLINGS, J
Care proceedings – application to be joined as a party – relevance of views of existing parties.
Residence order – application for leave to apply for an order – factors to be taken into account.
Following concerns which included the alleged sexual abuse of a child aged 7 by an uncle, the local authority commenced care proceedings in a family proceedings court. The father, the mother, and the paternal grandparents were joined as parties. The child's paternal aunt applied for leave to apply for a residence order in respect of the child. She also applied to be joined as a party to the care proceedings. The magistrates refused the applications, holding that she had no significant contact with the child and that it was inappropriate to grant the applications as the child's father and paternal grandmother were already parties and the aunt had good connexion and relationship with them. In arriving at their decision the magistrates also had regard to the views of the child.
The aunt appealed.
Held – dismissing the appeal: (1) On an application for leave to apply for a section 8 order, s 10(9) of the Children Act 1989 required the court to consider, amongst other things, any risk there might be of the proposed application disrupting the child's life to such an extent that he would be harmed by it. When considering this risk the court was not only concerned with the effect of the application itself being made but also with what effect there might be of disrupting the child's life if the application succeeded. The fact that s 10(9) of the 1989 Act required particular matters to be taken into account did not exclude consideration of other potentially relevant matters, including the wishes of the child. In this case, the magistrates had allowed extensive cross-examination on matters going to the merits of the aunt's application. If a court was considering whether or not to grant leave to make an application, it should look to some extent to see what the merits of the application might be. The magistrates could not be criticized for creating injustice by allowing too much cross-examination nor did they misdirect themselves by paying too much regard to the merits of the proposed substantive application.
(2) When dealing with the aunt's application to be joined as a party to the care proceedings, the magistrates had sought the views of all the parties. Rule 3 of the Family
Proceedings Courts (Children Act 1989) Rules 1991 appeared to suggest that an application to be joined as a party could be heard in the absence of other parties. However, this did not preclude the court from taking into account the views of other parties. Whether the court would be assisted by the views of the parties in the case was essentially a matter of judgment for the court.
Statutory provisions referred to:Children Act 1989, ss 1, 8 and 10.
Family Proceedings Courts (Children Act 1989) Rules 1991, r 3.
Case referred to:G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
Theresa Thornhill for the appellant.
David Gerrey for the first respondent.
Mark Dacey for the second respondent.
David Harris for the fifth respondent.
MR JUSTICE HOLLINGS.This is an appeal against the decision of the Newham West family proceedings court on 4 March 1992, when they refused an application by the appellant, the paternal aunt of the child in question, the sister of the father, leave to apply for a residence order under s 8 of the Children Act 1989 in respect of the child who was born on 30 April 1984, so he is 7-plus. The magistrates further refused the appellant's application to be joined as a party to the existing care proceedings, in respect of the child, which had been started by the London Borough of Newham, the first respondent, on 16 December 1991, and this too is the subject of appeal.
There are numerous parties to this appeal. Besides the London Borough of Newham, there is the child himself, who is represented by solicitors and counsel, counsel being Mr Dacey; there is also...
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