R-J (Minors) [1998] EWCA Civ 1473 (2 October 1998)

1. This is an appeal by the local authority from the refusal of Sir Stephen Brown P. on the 10th February 1998 to grant residence orders to foster parents, Mr and Mrs T, in respect of three children who were in its care under an interim care order. The local authority consented to the residence orders. The guardian ad litem of the children supports the local authority and the applications are opposed by the mother of the children who seeks their return to her care. We heard the appeal on the 17th and 19th June and reserved our decision. We discharged the care orders and made the three children wards of court and ordered that the children remain in the interim care and control of Mr and Mrs T until the conclusion of the substantive hearing in October.

2. The issues raised are unusual and difficult. The decision of the judge, to which he came with regret, had the consequence that the three children would have to leave the foster home immediately and be placed separately elsewhere. The problem has arisen as a result of the change in the law which prohibits the local authority from placing children in its care with these foster parents. The substantive hearing to decide the long term future of these children will take place in the High Court on the 5th October next. The immediate question which arose before the President was whether the children had to be removed from their present foster home before the conclusion of the hearing in October. If the mother succeeds in her application for their return to her care the situation will be resolved. If the local authority is, on the other hand, able to prove to the satisfaction of the High Court that the threshold criteria under section 31 of the Children Act 1989 are met and the welfare of the children requires them to be placed elsewhere, the evidence points strongly to long term serious consequences for these children if their present placement is unavailable.

3. The children are H, a girl born on the 24th April 1986, now 12; M, a boy born on the 20th May 1988, now 10 and B, also a boy born on the 13th May 1991, now 7. Each child has a different father, none of whom is involved in these proceedings. H was born when her mother was 17 and in care. The mother´s relationships with her partners have been unstable and with B´s father violent involving drink and drugs. The maternal grandmother in 1996 took over the care of all three children, but shortly thereafter the boys were for a time accommodated by the local authority and then returned to the maternal grandmother. The names of all three children were placed on the Child Protection Register in the category of emotional abuse on the 5th September 1996. Later in September the maternal grandmother again asked for the boys to be accommodated, but kept H with her. The local authority placed the two boys with Mr and Mrs T, the present foster parents. A few days later H joined her brothers at the home of the foster parents where all three children remain. The local authority undertook a section 37 investigation. Efforts were made by social workers during 1997 to rehabilitate the children with the mother which, at that time, failed. The local authority issued care proceedings and obtained interim care orders after a contested hearing.

4. The local authority´s care plan was to place the three children together and for them to remain permanently with the foster parents. That plan was enthusiastically supported by the guardian ad litem. Whatever may be the prospects of success of the application of the mother for the return of the children, upon which of course I express no opinion, there is no doubt that the children have suffered from the inadequacies of their earlier upbringing. M in particular had suffered from serious behavioural problems which caused social workers increasing professional concern. The children have settled exceptionally well with the foster parents, are devoted to them, and are strongly opposed to being moved from them.

5. In September 1996 there was no bar to the decision of the local authority to place the children with the foster parents under the Foster Placement (Children) Regulations 1991. These Regulations, enacted under the provisions of the Children Act 1989, required foster parents to be approved in accordance with the requirements of Regulation 3. The local authority had to be satisfied that the foster parents were suitable and the household was suitable and this approval included the information specified in Schedule 1 to the Regulations. In September 1996, there was no obstacle raised by Schedule 1 or otherwise to prevent the local authority from approving this foster family of whose services it had availed itself in the past. The foster father had however had one blot upon his good character. In 1993 he and his wife were fostering a boy of 11, J and as a result of an incident with J on the 4th October 1993, J was removed briefly from their care and the foster father was formally cautioned by the police for the admitted offence of assault occasioning actual bodily harm to J. The outcome of this isolated incident was the return of J to his foster parents shortly thereafter and the foster parents later made a successful application to adopt him. The adoption order was made by the judge with the knowledge of the caution and with the support of the local authority as the adoption agency and of J´s guardian ad litem.

Schedule 4, paragraph 2 now includes ´an offence specified in Schedule 1 to the Children and Young Persons Act 1933´. The exceptions are not relevant to this appeal. One offence specified in Schedule 1 to the 1933 Act is assault occasioning actual bodily harm. A caution for this offence now renders a person as unsuitable to act as a foster parent. Clearly this foster father cannot in the future be approved as a foster parent for this local authority. The 1997 Regulations came into force on the 17th October. There are no transitional provisions and there is no provision for any exercise of discretion in their application to individuals over the age of 20. Since all foster placements are reviewed on a regular basis, the children cannot remain in the household of Mr T under the amended fostering regulations after the review takes place. We were told that the Fostering Panel would carry out the review at the beginning of July. If the three children remained in the interim care of the local authority it would be under a statutory obligation to remove the children immediately after the review and would have to place them with short term foster parents pending the decision of the High Court in October. Not only would there be an extra move but it would also be necessary to place the children separately since no placement was immediately available to take three children. There would inevitably be yet a further move in October either back to the mother or to a, so far, unascertained new long term foster home. At the moment this local authority does not have within the county foster parents able to care for three children on a permanent basis and we were told that it was likely that the three children would be split up for the rest of their childhood. With this bleak outlook for the children if they did not return to the mother, the local authority sought to challenge the application of the Regulations to this placement. Its application was heard on the 6th February 1998 by Mr Horowitz QC sitting as a deputy High Court judge. The Department of Health intervened and the deputy High Court judge ruled that the Regulations applied to the foster father. That ruling has not been appealed. 7. The local authority then, with the support of the guardian ad litem, gave its consent to and encouraged the foster parents to intervene in the care proceedings in order to apply for residence orders, under section 8 of the Children Act, in respect of the three children. The grant of residence orders would have the effect of discharging the care orders, see Children Act 1989, section 91(1).

"The question of public policy, however, is not a matter which can be conveniently put aside. The Regulations are specific and, as I have indicated, mandatory. What is being urged by the local authority and by Miss Rodger is in my judgment effectively a device to circumvent that particular Regulation. However attractively it is dressed up, nonetheless the reality of the situation is that it is to be anticipated that the Authority would have an overriding position of guidance, perhaps through the making of a supervision order, again emphasising that the reality of the position is there would be no material change in the practical situation. Mr and Mrs [T] would not formally be termed ´foster parents´ and the children would not formally be in foster care, but their situation would not have changed.

It would seem that the court would be exceeding its appropriate role if it were to disregard, in effect, the implementation of this Regulation. It is unsatisfactory for all those who have been concerned with these children, but I do not believe that a precedent can be established which would enable the court on particular facts to circumvent the very clear requirements of this Regulation. It has to be assumed that it has been introduced into the law for very real purposes. No exceptions are provided for in the Regulations themselves. Undoubtedly there will be cases where it could be considered to be perfectly safe and appropriate for a person to be a foster parent notwithstanding the fact that he or she had fallen foul of sub-paragraphs (a) and (b) of Regulation 3-(4A). But Parliament has decided that it is important that those who have the care of children, particularly under the aegis of the state or local authorities, should have the clearest appropriate credentials.

On the appeal the case for the local authority was based upon welfare principles and the adverse effect upon the children of removing them from the foster parents. Mr Jubb, on its behalf, argued that the effect of a residence order was entirely different from a local authority placement with foster parents. He recognised that the local authority would lose control of the children and would no longer have parental responsibility for them. Its duties would be limited to those set out in Part III of the Children Act in contrast to the existing care order. Mr Jubb submitted that the President had erred in failing to balance public policy against the welfare of the children. He had treated public policy as supreme and ignored section 1 of the Children Act. The Regulations could not fetter nor set aside the clear policy of the Children Act to place welfare of children paramount. He drew the distinction between children placed after the Regulations came into force and those lawfully placed before the Regulations were even considered. The local authority was supported by the guardian ad litem and both the local authority and the guardian filed additional evidence, which we allowed to be adduced, setting out the present position of the children.

I recognise the force of the President´s conclusion, and respectfully agree that the court should not make orders designed to circumvent the intention of Parliament. The effect of these Regulations is clear and local authorities must abide by them, whatever may be the impact upon children already placed with foster parents. The applications before us are not, however, made by the local authority in the public law sector of the Children Act but are private law applications for section 8 residence orders under Part II of the Children Act. As foster parents, Mr and Mrs T may only do so with the leave of the court and the consent of the local authority. If they are granted residence orders, they will automatically acquire parental responsibility which they will share with the mother. The care orders will be automatically discharged and the local authority will lose parental responsibility which it has by virtue of the interim care orders. In an application for a residence or other section 8 order the court has the duty to consider all the relevant factors and make a decision consistent with the best interests of the child whose welfare is paramount, see section 1. The section 8 order is to be contrasted with an application for a care order which is made by the local authority and cannot be made by an individual. The court´s first task is to decide whether the section 31 threshold has been reached. If it has, then the court applies section 1 and decides in the interests of the child whether to make a care order, other order or no order. The local authority shows the judge a proposed care plan for the arrangements for the child if a care order is made. The court will take the care plan into account in reaching a decision. But it is the sole responsibility of the local authority, after the care order is made, to place the child, to review the placement and make such changes as the local authority, in accordance with its statutory duties, considers in the interests of the child. The court plays no part in the placement of children after the making of care orders. Unless the court finds the section 31 criteria are met, neither a care order nor a supervision order can be made.

The President held that to make residence orders was in effect to retain the existing situation, that there would be no material change in the position of the children and that it would be an abuse of the court´s role to grant the applications. In my judgment, the President fell into error in coming to that conclusion. Although realistically the children would continue to be cared for on a day to day basis in the same way as before, their legal status would be entirely different if Mr and Mrs T were granted the orders. Mr and Mrs T would be in control with full parental responsibility. For instance, the local authority would not be able to remove the children from the care of Mr and Mrs T without a court order. I rather doubt whether a court would grant supervision orders even though the section 31 criteria might be made out, since there would be no criticism of the care to be given by Mr and Mrs T. For my part, I cannot see that applications for residence orders are, in the present unusual circumstances, an abuse of the court´s process.

H, now 12, is ´mature beyond her years´. She is very concerned about the outcome of these proceedings. She has made it clear to the social workers and the guardian ad litem that she considers herself a member of the T family; sees Mr and Mrs T as her parents and wishes to remain with them until she is an adult. She calls them Mum and Dad. She has refused to accept birthday presents from her mother and grandmother and has refused to have contact with her grandmother. She has become unusually serious and subdued. The guardian is extremely concerned about the likely adverse effect upon her emotional stability, development and education of a move from the Ts which she will view as being let down by the adults. H is an extremely able girl who has achieved a place through competitive examination at the local grammar school of which she is very proud. If she is removed from Mr and Mrs T she will have to move school. There is no other equivalent school in the county. The guardian views the prospect of her leaving the grammar school as a disaster.

The mother is applying to take over the care of the children. Nothing said in this judgment is intended to have any effect upon the decision of the judge on the mother´s application, particularly since the evidence before this court has not been tested in cross-examination. It would nonetheless be unrealistic not to recognise that in June H was expressing very negative views about returning to her mother which have been set out in the addendum report of the guardian ad litem. If she retains those views, since she is now 12, the judge may well take them into account and there is at the least a real possibility that, absent the 1997 Regulations, H might expect to remain long term with Mr and Mrs T, who, according to the guardian ad litem, ´have given [her] the only stability she has ever known in her troubled life.' H wrote letters, on behalf of herself and her two brothers, to the President of the Family Division and to the Prime Minister We were, with the permission of H, shown a copy of the latter, in which she said:-

The views expressed by H are, according to the evidence before us, are shared by the two boys. M is 10 and appears to be the one most affected by the prospect of leaving the foster parents, which has caused his general behaviour and school work to deteriorate. The guardian ad litem found he was extremely agitated and talked wildly of running away if he could not remain with the Ts. In the guardian ad litem´s opinion there is a real risk he might do so. In the care of his mother he had been failing to achieve and displayed serious behavioural problems. On the move to the foster parents he improved significantly and made considerable educational strides. There are now real concerns about his behaviour in school and for his future away from the T family.

B is now 7. He made it clear to the guardian ad litem that he wanted her to make sure they could all remain with the foster parents. He settled down extremely well with them and has now regressed, becoming clingy , unsettled and noted to become distressed and to cry very readily. The evidence adduced in June as to the welfare of these children in June demonstrated that an immediate move from Mr and Mrs T to short term foster parents with a further inevitable move in October was patently contrary to their best interests. If the mother is unsuccessful in her applications in October, a move from Mr and Mrs T, other than on the ground of public policy, appears on the unanimous opinion of the social workers and the guardian ad litem and the evidence placed before this Court to be equally contrary to their long term best interests.

" The Department recognises that introducing an automatic prohibition on the approval to act as a foster carer or be a prospective adopter may, in exceptional cases, exclude people from being able to foster or adopt in an unjust way and could adversely affect the welfare of children if, as a consequence, an otherwise satisfactory placement were to be disrupted. The Department has taken the view that the risk of this occurring is more likely where an adolescent has committed a ´one-off´ minor infringement of the law but as an adult is not considered to pose any risk to children in his or her care. It is for this reason that the Regulations allow agencies to retain a discretion when considering whether to approve an applicant as a foster carer or prospective adopter where the criminal record checks disclose a conviction or caution for certain offences ........and where the offender was under 20 at the time one of those offences was committed. The emphasis remains, however, on the word exceptional. The intention of these Regulations is to ensure that known abusers and others guilty of, or cautioned for, offences which raise any doubt as to their suitability to care for children should be denied the opportunity to do so."

The omission of transitional provisions and the lack of discretion appear therefore to be intentional. The potential injustice to individual children is recognised in the guidance and to some extent ameliorated by the concession towards offending adolescents. Within the public law sector the injustice which may cause an adverse effect on the welfare of individual children cannot be remedied nor circumvented by a court order. The Regulations do not of course apply to private law cases and although they introduce important additional safeguards for children they cannot of themselves take precedence over the fundamental welfare principle enshrined in the Children Act where the court is determining any question with respect to the upbringing of the child. Giving all due weight to the importance of the change in the law in respect of foster parents, in the exceptional case I cannot, for my part, see why a private law application should not prevail over the policy set out in the Regulations, so long as the competing considerations are properly evaluated and the balancing exercise is carried out. In other than a most exceptional case, I would expect the public policy designed to safeguard the welfare of children would prevail.

The President was concerned that to make the residence orders in the present case would set a precedent. It seems to me that it is unlikely to do so since the situation only arises by virtue of the lack of transitional provisions. A local authority cannot, since October 1997, lawfully place a child with a foster family who come within Schedule 4. Although there are likely to be other children placed in good faith by local authorities before October 1997 whose foster families can no longer lawfully foster them, as a result of six monthly reviews, there can now be very few, if any, children still placed with such foster families. I do not consider that to allow an application in a clearly exceptional case would set a precedent. This is a most unusual case. There was clear evidence of the detrimental effect of moving the children from the Ts before the outcome of the October hearing. It is for that reason, as well as the need to reserve our decision, that we made the children wards of court to preserve the status quo. It must also be most unusual, if not unique, for a judge to make an adoption order where the prospective adoptive father had assaulted the child and been cautioned by the police. The judge would have scrutinised this family with particular care. The incident was obviously the sort of ´one-off´ recognised in the Guidance. This foster family is unusually well suited to care for this family, to keep them together as an unit and to give them the only stability and family life they have ever known. In my judgment these children should remain with Mr and Mrs T until the outcome of the imminent substantive hearing. I would allow the appeal.

Until the hearing of the substantive applications before the judge, the children should remain wards of court with care and control to Mr and Mrs T. I respectfully agree with the President that residence orders should not be used for a purely interim purpose. If the children do not return to their mother, the High Court Judge may consider whether, in view of the past history and the exceptional circumstances of this case, wardship might be the proper order, to enable the court to keep a degree of control over the family which it might not be thought proper for the local authority to exercise other than on a voluntary basis. But the order to be made after the substantive hearing is of course a matter for the High Court judge and not for this Court.

LORD JUSTICE CHADWICK: The specific question raised by this appeal is whether, in the circumstances which Lady Justice Butler-Sloss has set out, the President was right to refuse to make interim residence orders in respect of three children who are the subject of pending care proceedings. But that specific question is ancillary to the more general question: with whom should the children reside until the determination of those proceedings? I have no doubt that, for the reasons which my Lady has given, the welfare of the children demands that they should remain with the foster parents, Mr and Mrs T, until the care proceedings have been determined. But, equally, I am satisfied that it would be wrong, in the circumstances of the present case, for the court to make interim residence orders for that purpose. The solution is to invoke the court’s inherent jurisdiction with respect to children in the manner which my Lady has proposed.

The local authority’s application for care orders in respect of these three children, made under Part IV of the Children Act 1989, has yet to be determined. There is to be a hearing for that purpose in the Family Division of the High Court in the near future. At the substantive hearing the Judge will decide whether or not he is satisfied that the threshold conditions set out in section 31(2) of the Act have been established. If, but only if, he is satisfied that those conditions are met may he make a care order or a supervision order. Alternatively, he may, if he thinks fit, make some other order or no order at all. The issue before this court is what should be done in the meantime. It is important that - so far as possible - no order made in advance of the substantive hearing should have, or should be perceived to have, the effect of pre-judging the outcome of that hearing.

The need to make provision for the care of children pending the determination of an application for a care order is recognised by section 38 of the Act. Where it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2) the court may make an interim care order. Interim care orders have been made in the present proceedings. The effect of an interim care order is to vest parental responsibility for the child in the local authority pending the determination of the substantive application - see sections 33(3) and 31(11) of the Act. That was the position when the present application for residence orders was made.

The power of the court to make a residence order - as defined in section 8 of the Children Act 1989 - is conferred by section 10 of that Act. There is no doubt that there is jurisdiction to make a residence order on an interim application in pending care proceedings - see section 38(3) of the Act. But, as it seems to me, where the effect of the interim order will be to alter the status quo, the jurisdiction should only be exercised in those exceptional cases in which, at the time of the interim application, the court can be confident that, following a substantive hearing, a long term residence order will be made in favour of the same persons. An interim residence order should not be made as a temporary expedient. The reason is that the order confers a status on the persons in whose favour it is made. The making of residence orders in the present case would have the effect of discharging the existing interim care orders - see section 91(1) of the Act - thereby divesting the local authority of the parental responsibility conferred by section 33(3) of the Act. It would have the further effect of vesting parental responsibility for the children in Mr and Mrs T for so long as the residence orders remained in force - that is to say, in practice, until the determination of the care proceedings - see section 12(2) of the Act. It would confer on Mr and Mrs T a status under section 34(1)(c) of the Act which they would not otherwise have. It seems to me that the mother, who opposes the making of care orders, is entitled to say - as she does through her counsel - that the making of residence orders at this stage would alter the status quo in a way which might - and I emphasise the word “might” - prejudice her position at the substantive hearing. It is unnecessary to decide whether or not, in this case, an alteration of the status quo at this stage would, in fact, have any effect on the outcome after a substantive hearing. It is enough that the mother has a perception - which cannot be dismissed as unreasonable - that it might do so.

The effect of the interim care orders made under section 38 of the Act was to impose on the local authority the duty of providing accommodation for the children in the period before the determination of its application under section 31. At the time when the interim care orders were made the local authority could fulfil that duty by a placement with Mr and Mrs T. That placement was properly made. But, in the light of regulation 4A of the Foster Placement (Children) Regulations 1991 - introduced by amendment by the Children (Protection from Offenders) (Miscellaneous Amendments) Regulations 1997 with effect from 17 October 1997 - the authority cannot, consistently with the structure of the Act, allow that placement to continue under its own statutory powers. It cannot, itself, escape the confines of the regulations by seeking a residence order - see section 9(2) of the Act. It is in these circumstances that the local authority has encouraged Mr and Mrs T to intervene in the pending care proceedings and has given its consent to their application. The purpose of the application is, plainly, to circumvent a restriction which the Secretary of State, acting under the authority of parliament, has thought appropriate to impose on the powers of local authorities in relation to the placement of children in their care.

I accept that it is open to the court, in an appropriate case, to make a residence order under which a child is to live with a person who could not be approved as a local authority foster parent - because, for example, he or she fell within regulation 4A of the Foster Placement (Children) Regulations 1991. The regulations are not directed, specifically, to the powers of the court under the Children Act 1989. Rather, they are directed to the exercise by local authorities of their powers under that Act. In the exercise of its own powers the court should, of course, have regard to the considerations of public policy which underlie and are evidenced by regulations made under that Act. But the court’s overriding duty is prescribed by section 1(1) of the Act: “the child’s welfare shall be the court’s paramount consideration” . It seems to me that where the court is satisfied that, in a particular case, a decision which would give full effect to an element of public policy evidenced by one of the placement regulations would be contrary to the welfare of the child with whom it is concerned it is entitled - indeed bound - to treat its duty to have regard to that element of public policy as subordinate to its duty to give paramount consideration to the child’s welfare. That is not to suggest that the court is entitled to disregard the will of parliament as expressed through the regulations made under powers which have been delegated to the Secretary of State. It is no more than a recognition that, in giving effect to the will of parliament, the court must not lose sight of the clear directive contained in section 1(1) of the Act.

Nevertheless, for the reasons which I have already given, I am not persuaded that this is an appropriate case in which to make residence orders at this stage. Interim orders which might give rise to a perception of prejudice should not be made unless, having regard to the paramount consideration of the child’s welfare, there is no alternative course which the court can take. In the present case there is an alternative course open to this court. The court has power, on the application of the local authority, to discharge the existing interim care orders and to make the children wards of court. The circumstances fall squarely within section 100(4) of the Act. The result which the local authority wish to achieve - that is to say, leaving the children with Mr and Mrs T until after the substantive hearing of the pending care application - cannot be achieved through the making of any order (otherwise than in the exercise of the court’s inherent jurisdiction) which the local authority is entitled to apply for. The local authority cannot, itself, apply for a residence order; and the court cannot make an order requiring the children to be accommodated by or on behalf of the local authority - see sections 9(2) and 100(2) and (5) of the Act. To make the children wards of court, with interim care and control to Mr and Mrs T, preserves the status quo as nearly as may be in the circumstances; and, as the mother accepts, avoids the perception of prejudice which might arise from the making of residence orders. I am satisfied that that is the course which we should adopt.

There is one further observation which I think it appropriate to make. Although, as my Lady has pointed out, it is a matter for the Judge who hears the substantive application - and not for this court on the present appeal - to determine what should be the long term arrangements for these three children, the Judge will, of course, be faced with the dilemma that, if he were to make the care orders for which the local authority has applied, the children would not be able to reside with Mr and Mrs T. That is not a dilemma which will arise unless the Judge is satisfied, after hearing evidence, that the threshold conditions in section 31(2) of the Act have been established. But, if on the determination of the pending care proceedings, the court makes the care orders for which the local authority has applied, that will be the inescapable consequence. It will be the duty of the local authority to provide accommodation for the children in accordance with section 23 of the Act. That duty could be fulfilled by placing the children with local authority foster parents; but any such placement must comply with whatever regulations made by the Secretary of State under section 23(2)(a) of the Act are for the time being in force. The Deputy Judge decided, following the hearing on 6 February 1998, that - by reason of the caution which had been given to Mr T in 1993 - Mr and Mrs T fell within the new regulation 4A. There has been no appeal against that decision. The effect is that Mr and Mrs T have ceased to be persons whom the local authority could approve as foster parents; and have ceased to be persons with whom the children could be placed by the local authority in compliance with its duty under section 23. So the effect of the orders which the local authority has sought by its application under section 31 of the Act (if made) would be that the children would have to be removed from the only real home which they have known in circumstances in which, following a finding that the section 31(2) conditions were established, it could hardly be right for the local authority to return them to their mother. It may be that further consideration of the position which would arise if the care orders sought were actually made will lead the local authority, or the guardian ad litem, to the view that some other order would be more appropriate. For the reasons which I have already set out, I respectfully agree with my Lady that, in the peculiar circumstances of this case, regulation 4A would not preclude an order - which, having regard to the definition of “family proceedings” in section 8(3) of the Act, could be made in the context of continuing wardship - under which the children were to live with Mr and Mrs T if, following the hearing of the substantive application, the Judge were to conclude that the children should not return to their mother and that Mr and Mrs T offered the best prospect for long term care.

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R-J (Minors) [1998] EWCA Civ 1473 (2 October 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1473.html Cite as: [1999] 1 WLR 581, [1998] EWCA Civ 1473, [1999] WLR 581

England and Wales Court of Appeal (Civil Division) Decisions