Wakefield Metropolitan District Council v T (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Arden DBE,Lord Justice Hughes |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2008] EWCA Civ 199 |
| Docket Number | Case No: B4/2007/2579 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2008 |
[2008] EWCA Civ 199
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
His Honour Judge Hunt
LS06C06183
Lord Justice Thorpe
Lady Justice Arden Dbe and
Lord Justice Hughes
Case No: B4/2007/2579
Miss E Hamilton QC & Mr S Switalski (instructed by Messrs JWP Solicitors) for the Appellant
Mr A Hayden QC (instructed by Wakefield Council Legal Services & Messrs Michael George & Co) for the Respondents.
Hearing dates: 28th February 2008
This appeal, for which His Honour Judge Peter Hunt gave permission, requires the construction of the statutory provisions contained in the Children Act 1989 governing the duration of supervision orders. The question arose in public law proceedings in the Leeds County Court brought by the City of Wakefield Metropolitan District Council to determine the future of a little girl, Amber, born on the 3 rd February 2005. The point of construction was considered by the judge in the course of his judgment of 31 st October 2007. Before the court were the Council and Amber's parents, separately represented, and Amber's guardian. At the end of his judgment HHJ Hunt acceded to the application for permission to appeal advanced by Mr Switalski for the father. In this court the father was represented by Miss Eleanor Hamilton QC leading Mr Switalski. She told us that her appeal was supported by the mother. The respondent's to the appeal, the Council and Amber's guardian were represented by Mr Anthony Hayden QC.
Supervision orders are very commonly made under the statutory provisions contained in the Act. Usually they are made where there is a real risk that the child's carers, ordinarily the child's parents, will fail or falter unless supported by a supervisor. Thus the supervision order where the risks indicate the need for statutory intervention is less intrusive than a care order.
This is not such a case. The capacity of Amber's parents to provide good enough parenting is not in question. The risks relate to a single member of the extended family, namely the maternal grandmother's fifty-five year old partner. He has a long criminal record for sexual offences and it is not disputed that he is and is likely to remain a danger even to a child as young as Amber. Amber's father fully comprehends the danger. Amber's mother, perhaps understandably, is less able to recognise the peril. If the danger is not indefinite it will certainly run until Amber is better able to protect herself. In these circumstances the judge's pragmatic decision to impose a supervision order for the maximum overall life which the statute allows to a supervision order was extremely sensible. Amber's need for protection was unlikely to diminish during those years. Making one clear order at the outset removes the trouble and expense of future applications to extend an order of shorter duration. Should circumstances change radically during the life of the order the parents would be free to exercise their right to apply for its discharge. Thus commonsense and pragmatism characterise the exercise of the judge's discretion.
Judge Hunt explained his decision thus:-
“30. So, in my judgment, this is a case where requirements lead me to make a supervision order. I do not believe I have had to decide previously whether the court has power to make an extended order even at this first stage. The citation from the commentary to the Act to be found in Hershman & McFarlane persuade me that there is no statutory barrier to making an order of two or three years – thus an order not confined to a maximum of twelve months. The relevant question is whether Amber's welfare requires an extended order of up to three years which the local authority seek, and which, again, the guardian supports. In my view Amber's welfare does require it. The court is considering here long-term risks. The source of the risk is someone who has had a 30-year connection with the family, and Amber is a very young child indeed. In my view, there is much in the guardian's point that the order may well need to run at least until amber becomes a full participant in full-time school. At the point of entering school she has the advantage then of the external protective procedures, by which I mean the school staff and the child protection protocols which exist in any school these days. Such safeguards may well bolster the efforts made by the parents in conjunction now with the statutory involvement of the social services to keep Amber safe and sound.”
When Mr Switalski sought permission to appeal, limited to the question of whether the judge had jurisdiction to make a supervision order of more than twelve months duration, the judge said:-
“57. Well, I am simply going to add to what I have said in the Judgment by saying that it is my view that Parliament clearly envisaged that in some cases the courts would need, on welfare grounds, to make a supervision order which would extend for three years. It is my view, assisted, as I say, by the short citation I was given from the commentary in Hershman & McFarlane, that there is no barrier, even at the stage of the first hearing of an application, to making an order which extends, and is to be seen as an extension, from the regular twelve-month order for up to three years. That seems to me to be the constructive interpretation, in other words, the purposeful or purposive interpretation, of the statute because in this case where, even at this stage, the court can clearly see that the welfare of the child requires the making of what I might call a longer-term order it saves everybody the anxiety and the expense, often the public expense, of an application in twelve months down the line. Far better, it seems to me, in a case where the welfare of a child clearly leads the judge to conclude that such an extended order is necessary for that extension to be made and the order so to express it at the earliest possible stage.”
Now let me set out the relevant statutory material. Both care and supervision orders must rest on the same foundation defined by Section 31 of the Act:-
“ PART IV
CARE AND SUPERVISION
General
31 Care and supervision orders
(1) On the application of any local authority or authorised person, the court may make an order—
(a) placing the child with respect to whom the application is made in the care of a designated local authority; or
(b) putting him under the supervision of a designated local authority or of a probation officer.
(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control.
(3) No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married).
(4) An application under this section may be made on its own or in any other family proceedings.
(5) The court may—
(a) on an application for a care order, make a supervision order;
(b) on an application for a supervision order, make a care order.”
“(11) In this Act—
“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and
“a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.”
The duties of the supervisor are defined in Section 35:-
“35 Supervision orders
(1) While a supervision order is in force it shall be the duty of the supervisor—
(a) to advise, assist and befriend the supervised child;
(b) to take such steps as are reasonably necessary to give effect to the order; and
(c) where—
(i) the order is not wholly complied with; or
(ii) the supervisor considers that the order may no longer be necessary,
to consider whether or not to apply to the court for its variation or discharge.
(2) Parts I and II of Schedule 3 make further provision with respect to supervision orders.”
Other characteristics of the supervision order are to be found in Part II of schedule 3 to the Act. In particular paragraph 6 defines the duration of supervision orders as follows:-
“Part II Miscellaneous
Life of supervision order
6 (1) Subject to sub-paragraph (2) and section 91, a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made.
(2) A supervision order shall also cease to have effect if an event mentioned in section 25(1)(a) or (b) of the [1985 c. 60.] Child Abduction and Custody Act 1985 (termination of existing orders) occurs with respect to the child.
(3) Where the supervisor applies to the court to extend, or further extend, a supervision order the court may extend the order for such period as it may specify.
(4) A supervision order may not be extended so as to run beyond the end of the period of three years beginning with the date on which it was made.”
For the purposes of this appeal this is the crucial statutory provision. Its lack of comprehensive clarity and the absence of any previous authority have created this appeal. Miss...
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