A, Re (Wardship: 17 year old: s.20 accommodation) [2018] EWHC 1121 (Fam)

[2018] EWHC 1121 (Fam)Case No ZE17C00693
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 7 th March 2018
Before
MR JUSTICE WILLIAMS(In Private)
Between
A LOCAL AUTHORITYApplicant(1) A’S FATHER, MR FRespondents(2) ARespondent
B E T W E E N:
MR LAING (instructed by oneSource) appeared for Applicant.MR GORDON (instructed by Haslaw & Co. Ltd) appeared for First Respondent.MR ELLIOTT (instructed by Gary Jacobs & Co Solicitors Ltd) appeared for Second Respondent.MR J (Children’s Guardian) appeared in Person. for in person
J U D G M E N TThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]This is my judgment relating to A who was born in 2000 and is now 17 years old. The applicant is the A local authority who is represented by Mr Laing. The first respondent is Mr F, A’s father, who is represented by Mr Gordon. A’s mother is in a country in Africa and has played no part in these proceedings, so is neither presented or represented. A himself, who has played a significant role in these proceedings, is in court today as he was yesterday. He is represented by Mr Elliott, he having parted company with his guardian, Mr J, some time ago. Mr J is here today representing himself.[2]The applications which were before the court comprise, first of all, an application for a care order and secure accommodation order which was issued on 8th September 2017. That was issued on the basis that A was beyond parental control having become involved in gangs, having been forced to sell drugs, and being subjected to violence. The second application which followed soon after the first was an application which sought to engage the inherent jurisdiction of the High Court with respect to children in order to seek a deprivation of liberty order. That was issued on 21st September 2017 on the basis that there was no registered secure bed available but that other quasi-secure places may be available.[3]The very brief background to both of those applications was that in early 2017, A’s relationship with his father was under significant strain and he absented himself from home for significant periods of time which led to him being accommodated by the local authority in May 2017. Between May and August, he was frequently missing from the accommodation provided and it became clear that in that period he had been caught up in gang activity, including drug dealing. In August 2017, he gave a very detailed statement to the police.[4]The police and the local authority were consequently very concerned that he may be drawn back into that activity, that he may be subjected to coercion and violence by gang members and given the number of gang related killings in the area, the police and local authority were seriously concerned for his physical safety, indeed for his life. As a result of his having given that detailed statement to the police, there was an additional concern that if he were either called to give evidence in any prosecution or were his statement to be disclosed to any individual charged with an offence that that would create an additional danger to him.[5]The matter first came before the court on 8th September 2017, I think in the local Family Court, when a district judge gave directions and the application was transferred to this court on the basis that an application under the inherent jurisdiction would also be made. The matter then came first before Mr Justice Holman on 14th September when he adjourned the deprivation of liberty application. As a result, the applications came before me for the first time on 20th September when I heard evidence, in particular, from a police constable from Operation Trident, but also from the social worker (Mr A), and I think from Mr J. On that occasion, I made an interim care order and adjourned the deprivation of liberty application part heard.[6]That came back before me on 28th September 2017 by which time a secure bed had become available. On that occasion, I concluded that the evidence fully justified the finding that there was a history of absconding by A at that point and that the evidence established that there was a real possibility that A would abscond from any other accommodation. I also concluded that if he absconded he was likely to suffer significant harm and that although placement in secure accommodation in another part of the country was contrary to his expressed and strongly held wishes, that that was consistent with his welfare and it was necessary, and given the risks, proportionate.[7]So following that, the matter came back fairly swiftly in October because that was immediately prior to A’s 17th birthday. The local authority sought on that occasion to persuade the court that it was appropriate for it to make a care order on the basis that if it was not made that day, the statutory jurisdiction to make such an order would be lost and that, overall, it was in A’s interests for a care order then to be made.[8]That application was opposed by the father, by A, and by Mr J and I concluded that although the threshold was clearly met, on welfare grounds and process grounds it would not be appropriate to make the order at that stage because, in particular, A was strongly opposed to that and was unhappy with his current social worker. I also concluded that I could not then properly assess welfare, I could not properly assess other family options, and I did not consider that a final order that would confer parental responsibility on the local authority until A was 18 was a necessary and proportionate order to make at that point in time. A then was placed in the aforementioned other part of the country and he made good progress there.[9]On 21st December, the application was restored before Mrs Justice Knowles because the secure accommodation order was about to expire and required extension. The matter then came back before me on 11th January 2018 on an issues resolution hearing. By that stage, as I say, A had made good progress in the secure accommodation and had either just moved or was just about to move to another placement in a different part of the country. On the basis that everything appeared to be moving in a satisfactory direction, I reduced the time estimate from three days to two days and thus the matter came back before me yesterday.[10]In the course of the hearing, I have had the benefit of position statements from the local authority, from the father, on behalf of A, and I have got the guardian’s analysis which has stood in for his position statement. No party felt it necessary for any witness to give evidence and so no further evidence has been called. Having heard considerable evidence from social workers, police, Mr J, and A himself back in September, in the context of this case I do not think the absence of any oral evidence in the course of this hearing has in any way been detrimental to the consideration of A’s future.[11]I have heard detailed submissions from all of the advocates. In particular, in relation to the current position and the proposals for the future, I have had the benefit of the statement from Ms L, who is the social worker who has taken over from Mr A and I have had the benefit of the care plan.[12]The up to date position in relation to A’s potential involvement in any prosecution is that it remains a work in progress because although I think even when police constable from Operation Trident gave evidence back in September, he was hoping to have a decision on whether A would be used as a witness within the next few days or weeks that decision has still not been taken. I am told by Mr Laing on behalf of the local authority that the CPS is approaching the case on the basis that it may be prosecuted under the provisions of the Modern Slavery Act 2015 which I am told may be the first prosecution brought under that Act and therefore they are proceeding very cautiously. They want to speak to A again about his evidence. A has already indicated to the police that he does not want to give evidence and he has received advice from several sources that it would not be in his interests to give evidence. The police have also indicated that they seek access to the local authority files in respect of A in order to ascertain whether there are any skeletons waiting there which might be used to undermine A by the defence in the event that any prosecution was to be pursued and A was to be called.[13]So the net position in respect of that aspect of the case is that no decision has yet been made in respect of charging any individual and nor has any decision been made yet in respect of whether A will actually be called to give evidence. Whether that decision will be taken before A reaches the age of 18 can only be a matter of speculation but one would have thought that something would happen over the next seven months or so.[14]In respect of the approach of the local authority then to promoting A’s future, the basis of the planning is that he continues to remain at risk if he were to return to his local area due to the vestigial gang issues but, of course, there is the particular and heightened risk if he were used as a witness. In terms of family, the assessments of the father and A’s older sister, who I think is studying for nursing, is that they could not provide a suitable placement for A.[15]In respect of his mother, of course, she remains in a country in Africa. Other potential placements might have included his stepmother with whom he lived for some time and who I think is also the mother of his half-sister, but no contact has been possible with her. So the net result of that, although I do not think it is truly a default position, is that the proposal is that A should continue to live at the semi-independent accommodation in the area of the country in which he is in now, where he is settling well, indeed, where it is said that his attitude to education has been an inspiration to the other residents there.[16]It is therefore expected that he will remain there until at least the end of the academic year 2018. In the run up to the end of that year, there will be exploration in late May and June of alternatives for his education. Whether he, by May, wants to stay in the part of the country in which he is currently in and continue his A-levels at a local college or whether he wants to start afresh somewhere closer to his home location is something that will have to be thought about in May or June so that if A does wish to start again elsewhere, the necessary steps can be taken to put that into effect by the start of the academic year 2018/2019. Depending on his decision in relation to the education issue and proximity to his home location, then that will also require consideration of his accommodation and it seems clear from the plan that the allocated social worker, Ms L has put together that there will be both a multi-agency risk assessment in relation to ongoing risks for A, but also a more practical consideration and review of the education and accommodation options.[17]A particularly positive aspect of the attendance of the parties over the last two days is that whilst the care plan referred to the fact that the relationship between A and his father had almost completely broken down, yesterday in the course of the hearing there was a degree of reconciliation between the two of them as they were able to give each other a hug at court. So I hope that that may represent the shoots of a new or a regeneration of that relationship and that A is able to have such benefits as may be available from a better relationship with his father and his sister so that he is, as it were, not solely reliant on the carers and his social workers who are currently involved in ensuring his welfare is met.[18]The care plan overall, whilst needing a certain modest amount of updating to deal with that aspect and, of course, needing as they always will a degree of modification to reflect changes of circumstances on the ground, seems to cover the essential elements that need to be put in place to ensure that A’s needs are met under a s.20 accommodation arrangement. In particular, in relation to what will happen as he nears 18 and so nears the point at which he can take full responsibility for his own life, the plan recognises that as a looked after child, he having been both a child subject to an interim care order but also a looked after child under s.20 accommodation, he will qualify for ongoing support under the Children Leaving Care Act 2000 and the associated leaving care regulations. So it seems clear from the care plan and what I have been told by Mr Laing amplifying that, that there will, as it were, be follow-on provision to support A as he makes the transition from technically being a child to being an adult.[19]In terms of the legal position, Mr Laing points out, of course, that because A is now 17, the statutory deadline in s.31(3) has passed. Happily, s.25 secure accommodation is not currently on the agenda and so the ongoing provision for A would be under s.20 accommodation. Mr Laing makes clear that the basis on which that accommodation is provided is within the parameters of s.20(3) of the Children Act, also on the basis that the father does not object and indeed has signed a consent to A being accommodated, and indeed in accordance with s.20(11) that A is consenting to that accommodation.[20]Mr Laing has also referred me to the definitions of a looked after child under s.22(1) and s.105 which identifies that the requirements of the Children Leaving Care Act are engaged. He says that at this stage, deprivation of liberty is not required but as a looked after child or an accommodated child, secure accommodation would still technically be available up until the age of 18 and that, again technically but hopefully not on the agenda, deprivation of liberty applications would also be available if that were required if there was a U-turn, as it were, in the progress that has been made so far.[21]The local authority’s original position was that it opposed the suggestion that A be made a ward of court on the basis that that was not required although as a result of the exchanges in the course of yesterday, the local authority modified its position to the extent that it would not oppose the making of a wardship on the basis that it was only really targeted at the exceptional circumstances which exist relating to the potential prosecution.[22]On behalf of A’s father, Mr Gordon helpfully provided the authorities, Re E and Re M, on the use of wardship in circumstances where a child is subject to s.20 accommodation. I also have read A’s father’s recent statement. He accepts that A cannot return to live at home at the present time although he does not agree with the entirety of the assessment made of him and he accepts that A’s situation both requires that he be accommodated by the local authority but also that he requires a higher level of engagement by both the local authority and by the court given the exceptional risks that A has faced and may continue to face.[23]A’s father, thinks, or believes at least, that he has parental responsibility in respect of A although as I will return to later, that is not entirely clear. He criticises some aspect of the care plan as being insufficiently clear although appears to accept that the general nature of the plans is appropriate. He invites me to make A a ward of court on the basis set out in paragraph 9 of Re E, essentially, that it is necessary to ensure A’s safety and to, as it were, ensure that the court has a hand on the tiller of the arrangements that are put in place for A and, in particular, to ensure that the local authority, as it were, lives up to expectations. Some particular aspects which Mr Gordon identified as being concerns of the father were that A should have access to therapy to deal with the experience he has been through and to ensure that the education and accommodation aspects of the plan are properly implemented.[24]In respect of what A himself wants, Mr Elliott submitted that given the particular situation that he is in, he does support the proposition that he be a ward of this court. In particular, Mr Elliott emphasised that in this case there is a lack of clarity in respect of whether anybody has parental responsibility for A within this country and that somebody ought to clearly have responsibility for A, notwithstanding that he is 17, because of the exceptional situation he finds himself in. In particular, Mr Elliott emphasised that the criminal process issues warrant the use of wardship to ensure that A’s welfare is properly taken into account in determining decisions taken in respect of disclosure of information from the criminal process, any consideration of A giving evidence and what arrangements might be made for his safety in that regard.[25]It is right to say that Mr Elliott recognises and accepts that, of course, there are limitations on the court’s ability to manage those issues given the police and CPS’s own statutory jurisdictions in relation to matters such as calling witnesses. Mr Elliott also submitted that wardship had benefits because the issues related to practicalities, in particular accommodation, also, in fact, raises significant safety issues because of the possibility of a return to A’s local area and thus a reinsertion into the environment that had given rise to the original concerns.[26]Mr J, on his own behalf, also supported the use of the wardship jurisdiction in the exceptional circumstances of this case because, as he said, there is still a huge amount of risk which surrounds A. He was pleased with the beginnings of the reconciliation between A and his father and, in particular, Mr J I think was impressed by the extent of the work that the allocated social worker, Ms L, has conducted over the period since she took over the case and that the independent reviewing officer was also similarly committed. Mr J thought that the planning arrangements within the care plan were appropriate and that the LAC review in the July would be a key date for the future. In particular, he thought that there were some minor aspects of the care plan which needed updating but, in general terms, he was satisfied that the local authority’s approach over recent weeks and months demonstrated that they would implement the care plan as anticipated and would live up to their statutory responsibilities.[27]All of this has to be viewed then against the factual background which I shall only set out briefly in this judgment. A was, of course, born in a country in Africa. We have not seen a copy of his birth certificate although the father believes that he was named on that birth certificate and it seems that A lived in that country in Africa with his mother until about 2007 when he arrived in the UK. Following that, he made his life for the last nearly eleven years in the UK with his father and with his sister, and with his stepmother and his half-sister.[28]Things seem to have started to unravel from early 2016 onwards when his father and stepmother split up and she moved away to another part of the country with his sister. In July 2016, A was reported missing. By that time, he had been missing for, I think, some twelve days and in August, he was found sleeping in the service area at a shopping centre.[29]In October 2016, he was given a referral order for possession of a bladed article and by April, it appears he had left the family home and was sleeping rough. That seems to have been for about four weeks because on about 19th May, he was found sleeping rough at the local shopping centre and had been stealing food. A remarkable aspect of the case is that the police record that when he was found at the local shopping centre he was doing his homework for his GCSEs which I suspect is probably unique in the annals of family courts’ experience of young people in this situation and so that reflects very well on A that he should be so dedicated to that work.[30]He was originally placed, I think, with family friends but by certainly 22nd May, he had been accommodated under s.20 of the Children Act at a semi-independent unit near to his home location. Over the following three months though, his absences from that accommodation led to him being drawn into gang activity which, in his first absence, led to him being taken to a house in another part of the country and being forced to remain there and sell drugs. He stayed there for a period of time and then left but was subsequently found by the gang, robbed by them, told he had a debt, and then taken to a different part of the country. Either before or after that, he was beaten up with baseball bats. He stayed, apparently, for two weeks in that new place when that property was targeted by another gang and A was attacked by them, bitten, and hit with a baseball bat. All of this information, by and large, comes from A himself because after that incident, he was seen by the police with injuries and gave a lengthy interview to the team who are part of Operation Trident.[31]Following his return from that new place and interview, he returned to the semi-independent accommodation and there are incidents recorded on 18th, 24th, 25th and 29th August, and 1st September of him going missing again from that accommodation. On 12th September, he was arrested for breach of a curfew and I think it was on that occasion that there was an altercation with police in the course of which A, I think, was pepper sprayed. That then all led to the institution of these proceedings which I have already set out the history of.[32]Since being in his current location, he has by and large settled well and is working hard. There have been recently two incidents of him being away from the accommodation overnight. No, as it were, additional concerns have arisen from those absences, but I sincerely hope that A will be able to settle as fully in that accommodation as he can and make the very best use of it that he can. I suspect that they are relatively minor blips in a generally positive upward trajectory for A, but I think all of those around him are doing their very best to ensure that that is the case.[33]That very brief narrative makes abundantly clear that A’s life has, whilst he has experienced lengthy periods of stability, there have been life-changing events for him which most young people would never have to face. Most would never have to face even one of the significant events let alone the multiple events that A has faced. That puts him into, in my view, a relatively exceptional category of individual in this court’s experience.[34]So turning then briefly to the legal framework which I have to apply to A having regard to his life to date. An issue which we have grappled with is the question of whether A’s father actually has parental responsibility. It is not clear whether he does or does not. It must be right that over the years he has exercised parental responsibility, in fact, because he has been the one with care of A but the extent of the rupture between them so far means that, in practice, he is no longer exercising parental responsibility to any significant degree. As a matter of law, it seems that he may not have acquired parental responsibility. Under the relevant African national law, I do not know what the position is. If he had been married to A’s mother, the presumption that foreign law is the same as English could have applied so as to enable this court to presume that A’s father had parental responsibility applying the principles in Mansour, but that cannot be applied in this case.[35]In relation to the question of an unmarried father acquiring parental responsibility for an individual, I cannot presume that the same is true in relation to an unmarried father obtaining parental responsibility because A’s date of birth pre-dates the changes to our domestic legislation which now provides that an unmarried father named on a birth certificate would acquire parental responsibility. So that does not apply and nor, contrary to the possibility that I floated yesterday with Mr Elliott, does Article 16(4) of the 1996 Hague Convention assist because the terms of that state that:
“If the child’s habitual residence changes, the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the State of the new habitual residence.”
[36]So whilst that can have the effect of conferring parental responsibility in some circumstances, it would not apply in this case because A was born before the changes to UK law on unmarried fathers named on the birth certificate. So a father named on a birth certificate in the UK prior to 1st December 2003 would not have acquired parental responsibility and therefore I do not think that Article 16(4) assists in conferring parental responsibility on A’s father.[37]So the situation remains unclear in respect of A’s father’s parental responsibility. He may have it as a matter of the relevant African national law but we do not know for sure whether he does or does not. So there is a lack of clarity. Given that no application has formally been made that A’s father be granted parental responsibility and given that he may already have it, I am not prepared to make an order which purports to grant parental responsibility today when, in fact, it might already exist.[38]In relation to care orders, of course, s.31(3) provides that no care order may be made with respect to a child who has reached the age of 17. Just for the sake of clarity, because an issue was raised but ultimately not pursued, the interim order that was made in September endured by operation of s.38(4) of the Children Act 1989 for such period as may be specified. S..38(4) provides that it was cease to have effect on the occurrence of certain events. The only event which applies in this case is s.38(4)(c) which is the disposal of the application. So the interim care order would endure until the disposal of the application, i.e. today. There is no provision for it to cease on the child reaching the age of 17.[39]In terms of the question of accommodation, that is all set out in s.20 and 22 of the Children Act 1989:
“20 Provision of accommodation for children: general. (1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of— (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. ... (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. ... (7) A local authority may not provide accommodation under this section for any child if any person who— (a) has parental responsibility for him; and (b) is willing and able to— (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him objects. (8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. ... (11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.” 22 General duty of local authority in relation to children looked after by them. (1) In this section any reference to a child who is looked after by a local authority is a reference to a child who is— (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 23B and 24B. (2) In subsection (1) ‘accommodation’ means accommodation which is provided for a continuous period of more than 24 hours. (3) It shall be the duty of a local authority looking after any child— (a) to safeguard and promote his welfare; and (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case. (3A) The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement. (3B) A local authority must appoint at least one person for the purpose of discharging the duty imposed by virtue of subsection (3A). (3C) A person appointed by a local authority under subsection (3B) must be an officer employed by that authority or another local authority.”
In particular, s.22 sets out that a child is a looked after child if he is provided with accommodation by the local authority. (1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of— (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. ... (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. ... (7) A local authority may not provide accommodation under this section for any child if any person who— (a) has parental responsibility for him; and (b) is willing and able to— (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him objects. (8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. ... (11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.” (1) In this section any reference to a child who is looked after by a local authority is a reference to a child who is— (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 23B and 24B. (2) In subsection (1) ‘accommodation’ means accommodation which is provided for a continuous period of more than 24 hours. (3) It shall be the duty of a local authority looking after any child— (a) to safeguard and promote his welfare; and (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case. (3A) The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement. (3B) A local authority must appoint at least one person for the purpose of discharging the duty imposed by virtue of subsection (3A). (3C) A person appointed by a local authority under subsection (3B) must be an officer employed by that authority or another local authority.”[40]As a result of that the Children Leaving Care Act 2000 and the associated regulations are engaged. Mr Laing provided me with a helpful flowchart which sets out the pathway which A will fit into under the statute and the obligations which accompany that. It is clear from that that currently as a 17-year-old who is accommodated, he will be eligible for support on leaving care including a personal advisor, a needs assessment, a pathway plan, and reviews of that. The alternative possibility is that he would become a relevant child which would carry with it accommodation and maintenance, financial assistance to meet education and training, and if he ceased to be accommodated for some reasons, he would become a former relevant child which would still carry with it certain obligations.[41]Turning then to the question of wardship, the inherent jurisdiction of the High Court with respect to children derives from the right and duty of the Crown to its citizens to take care of those who are not able to take care of themselves, often called the parens patriae jurisdiction. The nature of that jurisdiction is the duty of the court to see that a child is properly taken care of and the welfare of the child being the object of that converts in current terminology into the inherent jurisdiction being a paramount welfare jurisdiction covered by s.1(1) of the Children Act 1989. For a recent exposition of the nature and limits of the inherent jurisdiction and wardship see paragraph 84 of Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam).[42]It is clear though that there are limits on the inherent jurisdiction in particular, those set out in s.100 of the Children Act 1989 which, in ss.(2) states 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; (c) so as to make a child who is the subject of a care order a ward of court; or (d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”
[43]Where the local authority seeks to invoke the inherent jurisdiction, it requires permission. In this case, the local authority is not seeking to invoke the inherent jurisdiction and so leave is not required in this case. I would also note that the interim care order which comes to an end on the disposal of this application will therefore not provide a bar within s.100(2)(c) to the court making A a ward of the court.[44]Notwithstanding the fact that s.100(2) is clearly designed to limit the court’s ability to impose duties on local authorities in relation to children and young people, there are circumstances in which the court has recognised that where care proceedings are concluding and a child is to be accommodated under s.20 that wardship may be appropriate (see Re E (Wardship[45]A significant indeed perhaps the critical issue identified in these and other similar cases is that the use of the wardship powers must not conflict with another statutory power or duty, whether that arises under s.100 of the Children Act 1989 or whether the relevant duty arises under any other part of the Children Act or criminal statutes. Hence in the recent case before the President In the matter ofa Ward of Court [2017] EWHC 1022 (Fam), the President considered whether a ward was in any way insulated from the usual requirements in relation to being a witness in a criminal trial or being interviewed: “49. There is, in my judgment, a pressing need for paragraph 5 of PD12D to be considered as a matter of urgency by the Family Procedure Rule Committee. Radical surgery will probably be required. 50. In the meantime, police officers, officers of the Security Service and others in a similar position should follow the guidance given by Sir Stephen Brown P in the following passages in his judgment in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347 (emphasis added): ‘In the majority of cases there will be no time, in any event, to seek the court’s leave before the interviewing of a minor in such circumstances. Provided that the requirements of the Police and Criminal Evidence Act 1984 with regard to juveniles are complied with, the duty upon the police is discharged. They have no extra duty to perform. There is, of course, a duty upon those having the care of the minor to inform the court at the earliest practical opportunity of what has taken, place, but there is no further duty upon the police themselves in those circumstances. ...I make it clear for their assistance that when they arrest a minor who in fact is a ward then they may properly proceed to interview him in accordance with their normal procedure provided of course that they comply with the provisions relating to all juveniles under the Police and Criminal Evidence Act 1984. It will then be for the person having charge of the minor to notify the court of what is taking place or has taken place. ...where a suspect is arrested, then it seems appropriate that I should make it clear that the police should not be inhibited from following their normal procedures with regard to such a person.’ The Police and Criminal Evidence Act 1984 does not apply to the Security Service. In relation to the Security Service and other agencies to which it does not apply, Sir Stephen’s references to the 1984 Act should therefore be read as referring to the relevant legislative framework governing the functions of the Security Service or other agency involved.” ‘In the majority of cases there will be no time, in any event, to seek the court’s leave before the interviewing of a minor in such circumstances. Provided that the requirements of the Police and Criminal Evidence Act 1984 with regard to juveniles are complied with, the duty upon the police is discharged. They have no extra duty to perform. There is, of course, a duty upon those having the care of the minor to inform the court at the earliest practical opportunity of what has taken, place, but there is no further duty upon the police themselves in those circumstances. ...I make it clear for their assistance that when they arrest a minor who in fact is a ward then they may properly proceed to interview him in accordance with their normal procedure provided of course that they comply with the provisions relating to all juveniles under the Police and Criminal Evidence Act 1984. It will then be for the person having charge of the minor to notify the court of what is taking place or has taken place. ...where a suspect is arrested, then it seems appropriate that I should make it clear that the police should not be inhibited from following their normal procedures with regard to such a person.’[46]As a result, the relevant practice direction dealing with wards of court, which is issued under Part 12, paragraph 5.1.1, of the Family Procedure Rules, was rapidly amended so that in respect of criminal proceedings, it now provides that:
“There is no requirement for the police or any other agency carrying out statutory powers of investigation ... to seek the permission of the court to interview a child who is a ward... The fact that a child is a ward of court does not affect the powers and duties of the police ... in relation to their investigations. Provided that the relevant statutory requirements are complied with, the police or other agencies are under no duty to take any special steps in carrying out their functions in relation to a child who is a ward of court.”
[47]Paragraph 5.1.2 makes clear, which is of particular application in this case:
“Where a child has been interviewed by the police in connection with contemplated criminal proceedings and the child is, or subsequently becomes, a ward of court, the permission of the court is not required for the child to be called as a witness in the criminal proceedings.”
[48]It is right to say that the previous authorities on which the President relied in the authority I have cited do make clear that in relation to young people who are interviewed or who are contemplated to be witnesses, there may be quite independent statutory duties which are laid upon the police or prosecuting authorities in relation to the taking of evidence from or calling as a witness a child.[49]So the net result of the limitations which are placed on the court is that provided the use of wardship does not conflict with a statutory scheme, it may be deployed in order to protect or secure the welfare of a child. Its ability to fill in where statute has neither provided nor excluded has been confirmed, for instance see A v Liverpool City Council [1982] AC 363 at 373, where the House of Lords said: “In some instances, there may be an area of concern to which the powers of the local authority, limited as they are by statute, do not extend. Sometimes, the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continued with a view to action by the court. The court’s general inherent power is always available to fill gaps or to supplement the powers of the local authority. What it will not do, except by way of judicial review where appropriate, is to supervise the exercise of discretion within the field committed by statute to the local authority.” (see also the decision of Mr Justice Jonathan Baker Re X and Y [2016] EWHC 2271 (Fam) at paragraphs 31 to 50 for a consideration of the fill-in powers provided by the inherent jurisdiction).[50]The approach therefore to the exercise of wardship has to therefore be seen in the light of not treading on the statutory toes of any other body and seeking, where necessary, to fill in or supplement other duties. However, ultimately the decision as to whether to utilise it is a welfare decision that requires a consideration of the child’s interests and those best interests are the paramount consideration as was said in J v C (an infant) [1970) AC 668 by Lord MacDermott. The phrase ‘first and paramount’ connotes a process whereby:
“...when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed. ... The word ‘welfare’ must be taken in its widest sense.” (see Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677) The word ‘welfare’ must be taken in its widest sense.”
[51]This involves an appraisal in the widest sense of what is in A’s wellbeing and his interests. It extends to and embraces everything that relates to his development. Although not required to apply the welfare checklist, I have it in mind. I also have the no order principle in mind.[52]So concluding then, the chronology of A’s life and the history that I have set out is perhaps not quite unique but of extreme rarity in the experience of the Family Courts. For the following reasons I consider he ought to become a ward of court which will last until he is 18. First of all, there is doubt over whether his father does have parental responsibility for him. His relationship with his father had broken down and although there may be some regeneration of that, the extent to which his father will be able or willing to exercise parental responsibility is uncertain.[53]Secondly, because A will be accommodated under s.20, the local authority will not have parental responsibility for him although it will have statutory obligations to him as a looked after child and a child leaving care. His social worker appears to me to be proactive and well engaged but that is not the same as having a pushy parent. His mother is absent from his life. The very considerable life events, in particular his separation from his family and the risks posed by the gang related violence and his possibly being called as a witness, create exceptional welfare concerns. The concerns that were expressed back in September by the police officer from Operation Trident were characterised as the gravest possible risks and the risks in relation to him giving evidence are a significant part of that.[54]I take into account that A himself wants to have some continued court oversight in relation to his protection. Notwithstanding the duties that are imposed on the local authority, there are some aspects of what will happen over the next few months which means A needs, I think, to have in the background somebody who is looking out for him with a specific obligation of parental responsibility. That, in itself, may not appear to provide much but I think the fact that he will be a ward and the court has an interest in him needs to be known to those who have dealings with him and that it is the court itself, not simply a parent, who will be holding those who have statutory obligations to A accountable to the court if those obligations are not fully complied with.[55]I am satisfied in this case that the court does not need to be involved in day to day decision-making in respect of A. I am satisfied that the local authority will implement the plan as envisaged and that for the court to be exercising some supervisory function over that would fall foul of the limitations which are placed on the court when it interfaces with a local authority exercising statutory functions. The care plan itself makes provision for many alternatives. There is a recognition that if there was a severe deterioration in the situation that the secure accommodation and deprivation of liberty options remain on the table and so I will exclude from the ambit of decisions which the court needs to approve of or to be notified of those day to day decisions relating to accommodation, schooling, medical treatment et cetera. What I am interested in in particular in this and what I think requires that A be a ward is the situation relating to the criminal process.[56]Of course, in matters relating to that, it is for the prosecuting agencies to take the decisions, but I want the prosecuting agencies to know that A is a ward of court and that the court expects to be informed of decisions taken in relation to A. The court will expect those taking such decisions to account to the court for them and to satisfy the court that all their relevant statutory obligations have been complied with in the taking of any decisions of that nature.[57]In the absence of having a parent who can, as it were, step into that role and having regard to the fact that the allocated social worker, Ms L, does not hold parental responsibility and I do not think it would be fair, as it were, to put on her the responsibility of asking her voluntarily, as it were, to take on the role of the proactive or pushy parent, it should be the court who exercises that in the absence of anybody else and in the unique circumstances of this case.[58]So I do conclude therefore that it is in A’s welfare interests for him to be made a ward of court, in particular, for that purpose. I do not intend by making that wardship order to in any sense tread on the toes of either the local authority in fulfilling its statutory obligations in relation to s.20 nor in relation to the prosecuting authorities in relation to their decisions-making, but for the reasons essentially which are set out or at least endorsed by Lord Justice Thorpe in Re E that the making of A a ward and conferring on the court the responsibility for his custody (to use the old terminology), that, together with providing a framework within which reference may be made back to court, and in terms of making clear that there is somebody who will hold decision-makers accountable in respect of their decisions over A, in my view, makes it appropriate to exercise the wardship jurisdiction in this exceptional case.[59]So I will therefore reserve any further application in relation to A to myself if I am available. I endorse the local authority’s designation of accommodation as falling under s.23 in so far as that has any relevance at all. I do not believe that any further information should be disclosed to the police by the local authority about A. He objects to it and I cannot see any welfare benefit to him at this stage in doing so. If the police want further information, they will have to make an application for it. Whether that is to the criminal court or to this court I am not entirely clear, but I would expect to know about any such application if it were made. I expect to be informed of the ultimate decision which is made in respect of A’s involvement in any criminal proceedings and to receive an explanation as to the fact that all statutory obligations have been complied with by, in particular, the prosecuting authorities.[60]I hope that that will enable you to draw the relevant order and I sincerely hope for A that things develop as you want them to in your current location, that you get some A-levels under your belt and that, if you want to, that you go off to university and that this is another step along the line to a more positive future. However, I will, until you are 18, be in the background, hopefully as a positive influence, in relation to decisions that are made in respect of you and decisions you make. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital

Order

Child in Voluntary Accommodation) [2013] 2 FLR 63 and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937).

Cited in 3 later judgments