E (A Child), Re [2012] EWCA Civ 1773

Case No B4/2012/2347[2012] EWCA Civ 1773
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY DISTRICT REGISTRY
(HIS HONOUR JUDGE BELLAMY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 22 nd November 2012
Before
LORD JUSTICE THORPELORD JUSTICE RIMERMRS JUSTICE BARON
In the matter of E (a child)
(DAR Transcript of
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Mr Martin Downs (instructed by Goldkorn Mathias Gentle) appeared on behalf of the Appellant (acting pro bono)
Ms Lorna Meyer QC & Elizabeth McGrath instructed by and for the Respondent Local Authority
Elizabeth Walker (instructed by Cocks Lloyd Solicitors) appeared on behalf of the Children’s Guardian
Judgment
[1]This appeal raises a short point of construction. It is this. Where a minor is accommodated voluntarily under Section 20 of the Children Act 1989, is the court prevented by Section 100 of the same Act from making the child a ward of court? The question arises from the judgment of HHJ Bellamy sitting in a difficult and exceptional case on its facts in the Coventry County Court as a deputy judge of the division.[2]The judge had to make a choice between no order, a care order, as sought by the local authority, and a wardship order. In his admirably clear judgment he considered the wardship option in paragraph 193 when he said:
"Another option considered is to make [E] a ward of court. S.100(3) prevents the local authority from making [E] a ward of court without the leave of the court. The parents do not need the leave of the court to issue wardship proceedings. However, if they were to issue wardship proceedings they would face the not inconsiderable obstacle of s.100(2) which provides that, 'No court shall exercise the High Court's inherent jurisdiction with respect to children – (a) so as to require a child to be placed in the care, or put under the supervision, of a local authority; (b) so as to require a child to be accommodated by or on behalf of a local authority."
[3]In the following paragraphs he considered reported cases, namely Re K (Children) [2012] EWHC, a decision of Hedley J at first instance, and the decision of this court in the case of Re F Mental Health Act Guardianship [2000] 1 FLR 192. He took up the considerations of merit in paragraph 205 when he said: "Against that background, and for the same reasons that Hedley J gave in Re K (Children), I believe that in this case wardship has more to offer than a care order. It would make both the local authority and the parents accountable to the court. It would enable the court to oblige the local authority to keep the court and the parents informed about its progress in arranging therapy and about the progress of therapy once begun. It would enable the court to ensure that the parents receive the information proposed under the care plan. Were it necessary to do so, it would enable the court to regulate the parents' contact with [E], with Ferngate and with [E's] school. Were it not for s.100(2)(b) I would have no hesitation in making [E] a ward of court. 206. However, with regret, and notwithstanding the examples of Re K and Re F, I am not persuaded that I have the jurisdiction to use wardship in the circumstances of this case. I have already ruled out the option of making no order. I am left, therefore, with no alternative but to make a final care order. I do not consider that to be the best outcome for [E] but I am satisfied that it is a better outcome than making no order.”[4]Not surprisingly, given the views expressed by the judge in those paragraphs, he gave permission to appeal. The appellants were for a considerable time in person in the preparation of their appeal and, considering the very narrow scope of the appeal, we are fortunate indeed that very recently Mr Downs accepted the task of presenting their case on a pro bono basis. His addendum skeleton argument, which is of very recent preparation, puts his essential submission in the first four paragraphs.[5]Having set out the terms of Section 100(2), which I have already cited, he submits that it cannot be the case that that Section rendered it impossible for an order in wardship to coexist with accommodation of the child pursuant to Section 20. Were it otherwise, he says, then subsections (8) and (9) of Section 20 would not make specific provision for the circumstance.

(b) , which refers to:

"a person who by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children."
[6]He also refers to the practice direction which is numbered 12(b) and which bears the heading "Inherent jurisdiction (including wardship) proceedings", and it is stated to supplement FPR Part 12, Chapter 5. Within it, in fact by paragraph 1.3, the Practice Direction states:
"The court's wardship jurisdiction is part of and not separate from the court's inherent jurisdiction. The distinguishing characteristics of wardship are that – (a) custody of a child who is a ward is vested in the court; and (b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child's life without the court's consent."
[7]In his next paragraph Mr Downs cites and relies upon the two cases that appear in the judgment below. However, he says that on further consideration he does not regard the case of Re A as having any direct bearing since it is distinguishable on its facts. But he relies strongly on the decision of Hedley J in Re K.[8]In that case, again exceptional on its facts, the judge was faced with a considerable degree of dissension between parents and the local authority in the care and management of disabled and difficult children. In paragraph 26 he said:
“26. The minds of those who practiced in this area of the law before 1989 inevitably turn at such times to thoughts of wardship. Of course the court is constrained by section 100 of the Children Act and the court cannot use wardship to compel parents to relinquish parental responsibility to a Local Authority. Here, however, there is agreement as to where the children reside.”
[9]Having drawn that distinction he, in paragraphs 39 and 40, stated:39. That said, given the conflicted history of the case, I think it desirable that some legal structure should remain in place. It is for that reason and with the consent of all parties that I propose to make Alec, Alice and Zac wards of court until further order.40. In my view, with the parents as plaintiffs, that preserves equality between the parties. It reminds all that they remain accountable to the court for making the necessary arrangements for the care, education and nurturing of these three children and it confirms the court's powers over the control and delegation of parental responsibility. It provides a reference point for dispute, although not one that will be easily engaged. It is right that the four agreements should be scheduled to any order of the court. The accountability process will be further worked out by the court requiring a short progress report with a court review [at the end of the year].”[10]That is a straightforward and persuasive submission from Mr Downs in favour of allowing this appeal.[11]So Ms Lorna Mayer QC took up the task of persuading us otherwise. She submits that the authority Re K is of little assistance to the appellant since it cannot be authoritatively stated that the accommodation of the children, whose future Hedley J considered, was a Section 20 voluntary accommodation. In the light of their disability she speculates that it might have been an accommodation under some other statutory provision to be found perhaps in health or welfare legislation.[12]She further submits that the practice direction that I have cited is erroneous in law and she draws some support from that submission from a note which appears at page 3A-1930 in one of the handbooks on the operation of the Children Act 1989. She also seeks to rely on Section 9 of the Children Act 1989, which is a Section that places restrictions on the making of Section 8 orders.[13]I do not find any of those submissions nearly as persuasive as the submissions of Mr Downs. As to the case of Re K, it seems to me infinitely more likely that the placement of the children was under a Section 20 voluntary accommodation. It is extremely unlikely that the court did not have proper regard to the statutory limitations to be found clearly spelt out within Section 100. After all, Hedley J referred specifically to the Section in general terms, and he had the assistance of leading counsel for two of the parties before him and very experienced specialist juniors for the other parties.[14]The suggestion that the practice direction has been written in error is a bold suggestion, given the care and expertise that goes into the drafting of these guides. I do not find the footnote particularly supportive of Miss Mayer’s argument, not least because it is directed to Section 100(2)(a) and not (b).[15]It seems to me that Ms Mayer's task was to persuade us to reject the submissions of Mr Downs rather than to uphold the judge below, since HHJ Bellamy did not expressly state the reasons for regarding Section 100(2)(b) as prohibiting wardship, nor does he particularly explain why he did not take comfort from and follow the decision of Hedley J in Re K.[16]So in the end it seems to me that this is a simple point. Plainly the intention and effect of Section 100 is to prevent the court in wardship making any order which has the effect of requiring a child to be placed in care or under the supervision of a local authority. That end can only be achieved by going through the proper route of threshold finding opening the court's discretionary jurisdiction to make either a care or a supervision order. The same result cannot be achieved under the court's inherent jurisdiction. But there is nothing in Section 100 that either explicitly or implicitly precludes the court from making an order in wardship where the child is not required to be accommodated, but is voluntarily accommodated.[17]Of course, if the accommodation agreement is terminated by either or both of the parties to the agreement, then obviously the court is not in a position to then require the local authority to accommodate or to supervise, but, so long as the Section 20 placement remains there, in my judgment the judge was not prevented from making the order which he clearly found to be the order most likely to promote the welfare of the child.[18]So it is with some relief that I reach the conclusion that this appeal should be allowed, the care order should be set aside and should be replaced by the wardship order that the judge wished to make but felt himself prevented from making by express statutory provision.[19]I agree.[20]I also agree.

Order

Application granted

Cited in 15 later judgments

and 6 more of the most senior