M (Children), Re

The issue in the present appeal relates to the extent of the court’s jurisdiction, if any, to make orders in wardship and/or under the inherent jurisdiction for the accommodation of a young person who is 17 years of age.

The factual circumstances of the case can be shortly stated. The subject child, a girl, T, was born in September 1998; she will therefore become 18 years of age during the next few weeks and no longer fall within the definition of a “child” for the purposes of the Children Act l989, s 105 (“CA l989”). T, together with her two younger siblings, has been the subject of care proceedings since September 2014. Those proceedings arose as a consequence of allegations of sexual abuse made by T against her older brother. At the start of the proceedings T and her younger sister were removed to foster care under interim care orders with their younger brother following a similar course some months later.

T has the burden of suffering from a significant learning disability with her overall IQ being assessed at 41. In addition she has been diagnosed as suffering from post traumatic stress disorder as a consequence of the sexual abuse that she has alleged.

There is no jurisdiction under CA l989 to make a care order with respect to a child who has reached the age of 17 (or 16, in the case of a child who is married) (CA l989, s 31(3)). That provision applies to an interim care order just as much as it does to a final care order (CA l989, s 31 (11)). In consequence, shortly before T’s 17th birthday, at which time the final interim care order expired, the local authority issued wardship proceedings making T a ward of court. Without prejudice to their ability to argue the point at the final hearing, the parents did not challenge those proceedings at that time, with the result that, upon the issue of the originating summons, T automatically became a ward of court in August 2015.

The fact finding hearing with respect to the sexual abuse allegations was conducted over a number of weeks in front of Mrs Justice Hogg in the latter part of 2015 and resulted in a full fact finding judgment handed down on 18^th December 2015. In that judgment Hogg J found that T and her sister had been sexually abused by their elder brother in the family home on numerous occasions over a significant period. She found that the parents were aware of the sexual abuse of the girls by their brother and that they had failed to protect their children by seeking to remove the brother or obtaining professional help. The judge also found that the father had “silenced” the children by instructing them not to tell of the abuse. In addition the judge found that the father drank alcohol to excess, was drunk within the home, and at times was physically abusive and frightening towards his children.

At the conclusion of the final stage of the proceedings, during which the plans for the future care of the children were considered, Hogg J concluded that it was in the best interests of all three children to remain in foster care and not to return to the home of either or both parents. In the present appeal there is no challenge to the judge’s welfare determination. The narrow, but not unimportant, issue on appeal relates to the court’s jurisdiction to make orders providing for T to be kept in local authority foster care in circumstances where, because she is 17 years old, the court no longer has jurisdiction to make a care order. Before turning to the judge’s decision on this point it is necessary to describe the statutory context in more detail.

Provided that the threshold criteria in CA l989, s 31(2) are satisfied, s 31(1) establishes that the court may, following an application made by any local authority or authorised person, make an order “placing the child with respect to whom the application is made in the care of a designated local authority”.

CA l989, s 105(1) provides that “child” means “a person under the age of 18”. However, s 31(3) provides that:

Where a care order has been made prior to a child’s 17^th birthday, CA l989, s 91(12) provides that the care order:

It is common ground before this court that, as T was over the age of 17 by the time the judge came to make final orders, there was no jurisdiction to make a care or supervision order with respect to her in consequence of s 31(3), notwithstanding that if a final order had been made prior to her 17^th birthday it would have continued to be in force until the age of 18 years (unless it had been brought to an end earlier).

As a consequence of the court’s inability to make a statutory care order, attention focussed upon the possible availability of orders made in wardship and/or under the High Court’s inherent jurisdiction, the exercise of which is substantially curtailed by CA l989, s 100(2) to (5) which provide:

Finally, in terms of describing the statutory context, it is necessary to make reference to CA l989, s 20 which deals with the provision of accommodation for children by a local authority. The relevant provisions of CA l989, s 20 are:

The main body of the judge’s judgment is taken up with a detailed analysis of the evidence relating to the welfare of the three children before the court. At the conclusion of that process she expressed her general overall decision at paragraph 173 as follows:

The judge went on to approve the care plans put forward by the local authority, subject to some refinement as to the frequency of contact.

The final issue considered in the judgment is that relating to the court’s jurisdiction to make orders with respect to T. That section of the judgment opens with the following short paragraphs:

Thereafter the judge set out the relevant terms of CA l989, s 100. She then recorded that, had the proceedings concluded prior to T’s 17th birthday, the judge could see no reason why she would not have made a full care order at that stage and that, by virtue of s 31(3), such an order would have remained in force until T’s 18th birthday. The judge therefore noted that “Parliament certainly thought in an appropriate case the State should provide that form of protection for a child, or young person up to 18”. The judge rehearsed the reasons why, despite the passing of her 17th birthday, it remained necessary, if jurisdictionally possible, to make orders for T’s protection as she remained a vulnerable young person requiring similar protection to that being afforded to her younger siblings “while she remains under age”.

The judge concluded her judgment on this issue with the following three paragraphs:

In the context of this appeal it is the opening words of paragraph 203 of the judge’s judgment are of particular note:

The court order includes the following relevant recital:

The substantive order contains the following paragraph:

This court was shown a short sequence of emails passing between counsel for the local authority and counsel for the mother prior to the court sitting on 18^th April 2016 on which occasion judgment was formally handed down. A draft order including the recital and paragraph set out above was sent by counsel for the local authority to the judge’s clerk and copied to the other advocates. Counsel for the mother responded that the draft did not reflect the terms of the order as indicated by paragraph 203 of the judge’s judgment. An amended version of the order was therefore re-submitted to the judge’s clerk a short time later, again prior to the court sitting that day. In the revised draft the relevant recital is:

The sealed court order issued by the High Court Family Division and dated 18^th April 2016 is in the terms of the original draft set out at paragraphs 19 and 20 above, rather than the revised draft submitted at the request of the mother’s counsel. It is plain that as well as formally handing down judgment on 18^th April, a short oral hearing took place at which the judge heard from counsel for the mother and counsel for the father, the other parties having given notice the court that they did not intend to attend the hearing. The purpose of that short hearing was to seek amplification of reasons contained in the judgment and to apply for permission to appeal, which was refused. Again, a sealed court order issued by the Family Division dated 18^th April has been issued.

The wording of the order issued by the judge is of importance. The skeleton argument supporting the mother’s Notice of Appeal, drawn by her counsel Mr Chris Barnes, relies upon the wording of the second draft to the effect that the local authority “shall” provide T with appropriate care and accommodation in her current foster placement, whereas the local authority and Guardian submit that the wording must be taken from the sealed order issued by the court which is simply in the terms that the T will remain a ward of court during her minority.

Miss Tina Cook QC, who now leads Mr Barnes for the purposes of this appeal, accepts that any appeal must be focussed upon the terms of the judge’s order, rather than any particular phrase or other in the underlying judgment. She accepts that if the wording is in the terms shown on the sealed order, it is not open to challenge.

The mother’s case on appeal is primarily based on the assertion that if the judge’s order required the local authority to provide T with care and accommodation in her current local authority foster placement that requirement cuts across the express restriction on the use of the inherent jurisdiction established by CA l989, s 100(2).

It is further argued that Parliament expressly provided that no care order was to be made with respect to a child who had reached the age of 17 years (CA l989, s 31(3)) and that it was impermissible for the judge to ignore that statutory restriction.

It was submitted that the judge could, and should, have used one of two alternative avenues to secure the child’s placement, depending upon an assessment of her capacity to make the relevant decision for herself. If she had capacity to do so, she could consent herself under CA l989, s 20(11) to the provision of the local accommodation. If, on the contrary, she lacked capacity within the terms of the Mental Capacity Act 2005, it would be open to the local authority to apply to the Court of Protection to sanction provision for her accommodation. In the event, there has not been an assessment of T’s mental capacity and the investigation of these two alternative avenues was not taken any further before the judge.

In opposition to the appeal the local authority makes submission which can be summarised under the following short headings:

The judge was entitled to exercise the inherent jurisdiction so as to require the local authority to provide T with appropriate care and accommodation, in accordance with paragraph 203 of her judgment, and to do so was not a breach of the restrictions in section 100(2);

In any event, even if the judge had not included an express requirement upon the local authority, it is a primary feature of the wardship jurisdiction that “no important step” can be taken in the life of a ward of court without the consent of the court and, in consequence, no action could be taken to change the child’s care and placement arrangements without the subsequent approval of the court;

Following discharge of the interim care order on her 17th birthday, T has been accommodated under CA l989, s 20 and the authority of Re E (Wardship Order: Child in Voluntary Accommodation)[2012] EWCA Civ 1773 establishes that the court has jurisdiction to make orders in wardship where a child is subject to section 20 accommodation;

T will be 18 in a matter of two or three weeks, and there is therefore no practical purpose to the appeal;

Further, the judge’s order should extend beyond T’s 18th birthday, the court having jurisdiction to protect a young person over that age under the inherent jurisdiction (Re SA (Vulnerable Adult with Capacity: Marriage)[2005] EWHC 2942 (Fam));

The mischief to which s 100(2) is addressed is the practice, under the wardship jurisdiction as it was previously exercised prior to CA l989, of the court using its inherent jurisdiction to “require” a local authority to care for a child, or make other provision where the local authority do not otherwise intend to do so. Section 100(2) does not prevent the use of the inherent jurisdiction where the local authority invites the court to sanction a particular course.

The local authority has issued a Respondent’s Notice seeking a variation of the order so that it extends beyond T’s 18th birthday and, if necessary, variation of the wording of the order so that it plainly is not in conflict with Section 100(2). In addition the Respondent’s Notice seeks to uphold the judge’s decision on the grounds that I have already summarised.

Although, in my view, the outcome of this appeal turns on the wording of the sealed order issued by the court, I offer the following short observations in deference to the well-argued submissions that we have received which focus on the judge’s words at paragraph 203 and the question of whether or not the court may ‘order’ a local authority to provide 17 year old child with care and accommodation in a foster home as a ward of court or otherwise under the inherent jurisdiction.

The authority which was central to the submissions of both Miss Cook and Mr McCarthy was Re E (Wardship Order: Child in Voluntary Accommodation)[2012] EWCA Civ 1773. In that case, at first instance, the judge considered that the future of a child (under the age of 17), who had hitherto been accommodated voluntarily under CA 1989, s 20, would best be served by remaining in s 20 accommodation but, at the same time, being a ward of court in order to make the local authority and the parents accountable to the court and to place an obligation on the authority to keep the court and the parents informed of developments. The judge, however, held that he was prevented by CA 1989, s 100(2)(b) from making such an order and that he had no option but to make a final care order under s 31.

The Court of Appeal (Thorpe and Rimer LJJ and Baron J) allowed the appeal, set aside the care order and made orders in wardship. Thorpe LJ, in a short judgment with which the other members of the court agreed, endorsed the approach taken in similar circumstances by Hedley J in Re K (Children with Disabilities: Wardship)[2012] 2 FLR 745 where the court made orders in wardship to support children who were to remain, by the agreement of the parents, in residential accommodation. Thorpe LJ expressed his conclusion as follows at paragraphs 16 and 17:

It is of note that, so far as can be discerned from the law report, the wardship order in Re E did no more than provide a framework designed to facilitate communication and accountability between the local authority and the parents; the placement of the child was governed by the agreement of the parents under s 20 and not by any order in wardship. In Re K, where the court was concerned with three significantly disabled children, and where, by the close of the proceedings, there was agreement between the parents and the local authority as to the residential accommodation to be provided for them, the orders in wardship provided for a system of review, accountability and, if necessary, the resolution of disputes as to matters of detail; no order seems to have been made requiring the local authority to accommodate the children.

In his skeleton argument, Mr McCarthy relied upon Re E in support of the submission that, as T had been accommodated under s 20 once she became 17, the court had jurisdiction to make an order in wardship. Miss Cook joins issue if, as his argument implies, Mr McCarthy seeks to say that Re E is authority for the proposition that a court can use the inherent jurisdiction to require a local authority to accommodate a child, as such an order would be contrary to s 100(2). In so far as there is a dispute on this point, Miss Cook’s submission must be correct. Re E does no more than establish an ancillary use of wardship to support arrangements for a child’s care that have been agreed, and are not the subject of a court order. As the words of Thorpe LJ make absolutely plain, the accommodation is governed by the agreement and, if that agreement fails, ‘obviously’ the court is not in a position to require the local authority to continue to accommodate the child.

Reference was made to this court’s decision in DL v A Local Authority [2012] EWCA 253 (Maurice Kay, McFarlane and Davis LJJ) which considered whether the inherent jurisdiction could be used to protect vulnerable adults who may lack capacity to make decisions for themselves for reasons other than ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ and therefore falling outside the scheme of the Mental Capacity Act 2005. That decision is not, to my mind, and again for the reasons advanced by Miss Cook, of any direct application in the present case because of the distinction between the MCA 2005, which makes no express reference to the inherent jurisdiction and makes no attempt to restrict it, in contrast to the CA 1989, which obviously does in s 100.

Mr McCarthy’s argument relies at its core upon the principle, established by the House of Lords as long ago as 1981 in A v Liverpool City Council[1982] AC 363, that the court may not use its inherent jurisdiction so as to supervise or overrule the actions of a local authority in the discharge of duties that have been entrusted to it by Parliament. Mr McCarthy draws attention to what might be called the other side of that coin, which is that the court may nevertheless be invited by a local authority to provide assistance to supplement its statutory powers or otherwise cover gaps in the statutory scheme as described in the leading speech of Lord Wilberforce (at page 373):

Mr McCarthy submits that although the terms of s 100(2), in line with A v Liverpool City Council, state that a court may not ‘require’ a local authority to provide services or care for a child where it does not otherwise intend to do so, there is, however, no embargo upon a court endorsing, at a local authority’s request, an authority’s plan to provide care for a child. In that way, it is argued, the mischief, at which s 100(2) is directed, is confined solely to a court ‘requiring’ a local authority to act in a manner that it does not otherwise intend to act.

Mr McCarthy sought to support his submission by reference to the decision of the Court of Appeal in Re N (An Adult) (Court of Protection: Jurisdiction)[2015] EWCA Civ 411 (Sir James Munby P, Treacy and Gloster LJJ) which concerned the extent of the powers of the Court of Protection to require a clinical commissioning group (‘CCG’), which was responsible for providing care to an adult who lacked capacity, to provide or fund services which the CCG was not willing to provide or fund. In line with A v Liverpool City Council and the line of more recent cases which follow it, Sir James Munby P, giving the main judgment, held that there was no power for the court to compel a public authority to agree to a care plan that it was unwilling to implement. Despite extensive reference by Mr McCarthy to parts of Sir James’ judgment (paragraphs 15, 18, 25, 31-34 and 40-44), nothing that is said in that judgment goes further than identifying the potential for the court to assist a public authority in undertaking a step that it is otherwise within its statutory powers or duties.

Having been taken to the case-law relied upon by Mr McCarthy, I am clear that those cases do not support the proposition that the court, exercising its inherent jurisdiction, can grant authority to a local authority to provide care for a child where the local authority would not otherwise have power to do so under the statutory scheme. The most that the court may do, and in some cases this may be of real benefit, is to support arrangements that are otherwise legitimately in place by making orders which are not excluded from the court’s jurisdiction by s 100.

At the conclusion of his oral submissions Mr McCarthy, despite the arguments that he had made, accepted that in the present case the judge’s words at paragraphs 202 and 203 described orders that were outside the court’s jurisdiction and that the court had been correct to limit the orders that were eventually made to those set out in the sealed order, namely simply to endorse the current care plan and continue the wardship until T’s 18^th birthday.

An ancillary submission made on behalf of the local authority is based upon the established principle of the wardship jurisdiction that ‘no important step can be taken in the child’s life without the court’s consent’ (Family Procedure Rules 2010, PD12D, para 1.3(b)). Mr McCarthy submits that any attempt by the parents to achieve a move of T from her current placement would involve an ‘important step’ for which the leave of the High Court would be required. For the purposes of these short observations, upon which the outcome of this appeal does not turn, it is only necessary for me to record that, insofar as it is suggested that, by the backdoor, the effect of the ‘no important step’ principle may achieve an outcome, namely a binding order requiring T to remain in local authority care, which the court is not permitted to bring in through the front door, the submission cannot be sound. As Thorpe LJ observed in Re E, the court is obviously bound by CA 1989, s 100 and cannot make an order the effect of which is to require a child to be cared for or accommodated. If, in the scenario suggested, the parents wished to remove T from local authority care and came to the court for authorisation of that ‘important step’ within the wardship, the court could not, as a result of s 100, have any legitimate basis upon which it could refuse its consent to such a move.

By the close of oral submissions before this court there was a measure of agreement or, in the case of the parents, acceptance that if the order made by Hogg J was limited to the terms of the sealed order, as opposed to the second more widely worded draft, then that order was not open to challenge on appeal on the basis that the order did not, in contrast to the judge’s stated intention in paragraphs 202 and 203, ‘order’ the local authority to accommodate T and maintain her in the current foster placement.

Having rehearsed the circumstances leading to the making of the court order at paragraphs 19 to 24, it is only necessary for me to express my conclusion on the issue of the choice between the two forms of order. The position is, in my view, entirely clear. The only order that has been issued by the court is the ‘sealed order’ and it is that order upon which the appeal must turn. Unless there is clear proof to the contrary, a sealed order that has been formally issued by the court, and which has not been subsequently amended, will normally, if not always, be taken as the court’s order. To hold otherwise would risk confusion and inject a lack of clarity that would be wholly contrary to the needs of justice and the rule of law. In the present case the matter goes further in that any apparent room for doubt is effectively dispelled by the fact that the judge’s clerk had been sent the ‘second draft’ order on the morning of the 18^th April and thereafter Hogg J presided over a short hearing in the case. Following that process the sealed order was issued bearing the date of the 18^th April. The clear implication must be that the judge considered the ‘second draft’ but rejected it in favour of the version that had been originally submitted by the local authority.

It follows that the court order does no more than provide that ‘T shall remain a ward of court during her minority’ and is similar in form and substance to the orders made in Re K and Re E; namely a provision which provides a framework to facilitate and support the arrangements for T’s accommodation which are being provided under the statutory scheme. As Miss Rayson, for the children’s guardian submitted, the judge’s order neither required T to be placed in care nor required her to be accommodated.

It follows that the appeal fails and must, as we announced at the end of the hearing, be dismissed.

By a Respondent’s Notice the local authority sought to establish that the protection of wardship and the inherent jurisdiction provided by the judge’s order should continue beyond T’s 18^th birthday. Mr McCarthy submitted that an extension of the order could be achieved under the inherent jurisdiction, notwithstanding the fact that Senior Courts Act 1981, s 41 describes the use of wardship only with respect to ‘minors’. As an illustration of a recent occasion where the court has extended wardship orders into adulthood reference was made to the decision of Baker J in Re SO (Wardship: Extension of Protective Injunction Order)[2015] EWHC 935 (Fam).

Re SO concerned a girl, who was by then aged 17 years and who had been the subject of wardship proceedings for many years aimed at protecting her from her father who had previously abducted her and who was serving a prison sentence for inciting the murder of her mother. In view of the child’s impending 18^th birthday, the mother applied for an extension of the protective injunctions into adulthood. Baker J held that an order made during the currency of wardship proceedings may be extended into adulthood (applying the dicta of Thorpe LJ in Re F (Adult: Court’s Jurisdiction)[2000] 2 FLR 512). Having considered the merits of the application Baker J made an order extending the injunction.

I regard Re SO as an uncontroversial example of the use of the inherent jurisdiction to protect a vulnerable individual, be they either a child or an adult, in the particular circumstances of that case by granting or extending an injunction. At no stage does Baker J contemplate the extension of the status of wardship beyond the age of 18 years and the extension of wardship was not a prerequisite for the court’s jurisdiction to extend the injunctions. The authority of Re SO does not in any manner assist the local authority in the present appeal in establishing the adventurous submission that the court has jurisdiction to extend wardship into adulthood.

In the absence of any further authority on the point, and in circumstances where Mr McCarthy rightly did not force the argument, the local authority’s cross appeal fails and must be dismissed.

All parties before this court are agreed that there is need for there to be a prompt assessment of T’s capacity to make decisions as to her future care. With the benefit of hindsight, this is a step that should properly have been undertaken before now, given her imminent translation into adulthood. If it is considered that she does, or may, lack capacity within the terms of the MCA 2005, then the arrangements for her care need to be brought before the Court of Protection at an early date.

It was a matter of note that Mr McCarthy appeared alone for the local authority at the hearing of the appeal. He was attended by neither a social worker nor a solicitor. It is to be hoped that the lack of attendance by the local authority at court does not in any way indicate a more general lack of interest in, or awareness of, the need to assess T’s capacity and meet her needs in the future. On the contrary the need now to press on with a capacity assessment could not be plainer.

For the reasons that I have given, I would dismiss both the appeal and the cross appeal, with the consequence that the sealed order of the court stands without change, but that the effect of that order with respect to T will, as the judge clearly states in her judgment, come to an end on the occasion of T’s 18^th birthday in the next few weeks.

I agree.

I also agree.