CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 juillet 1987

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margin-bottom:0pt; text-indent:14.4pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (PLENARY)             CASE OF H. v. THE UNITED KINGDOM   (Application no. 9580/81)             JUDGMENT       STRASBOURG   8 July 1987 In the case of H v. the United Kingdom [] , The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:   Mr.   R. Ryssdal , President ,   Mr.   J. Cremona ,   Mr.   Thór Vilhjálmsson ,   Mr.   G. Lagergren ,   Mr.   F. Gölcüklü ,   Mr.   F. Matscher ,   Mr.   J. Pinheiro Farinha ,   Mr.   L.-E. Pettiti ,   Mr.   B. Walsh ,   Sir   Vincent Evans ,   Mr.   R. Macdonald ,   Mr.   C. Russo ,   Mr.   R. Bernhardt ,   Mr.   J. Gersing ,   Mr.   A. Spielmann ,   Mr.   J. De Meyer ,   Mr.   N. Valticos , and also of Mr. M.-A. Eissen , Registrar , and Mr. H. Petzold , Deputy Registrar , Having deliberated in private on 29 November and 1 December 1986, and 28-29 January and 26 May 1987, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.    The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 28 January 1986, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The case originated in an application (no. 9580/81) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 3 September 1981 under Article 25 (art. 25) by a British citizen whose identity, having regard to the sensitive nature of the case, remains confidential. 2.    The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 and 8 (art. 6, art. 8). 3.    In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings pending before the Court and designated the lawyer who would represent her (Rule 30). 4.    On 19 March 1986, the President of the Court decided that in the interests of the proper administration of justice this case and the cases of O, W, B and R v. the United Kingdom should be heard by the same Chamber (Rule 21 § 6). The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 19 March 1986, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. C. Russo, Mr. J. Gersing and Mr. J. De Meyer (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). 5.    In his capacity as President of the Chamber (Rule 21 § 5), Mr. Ryssdal consulted, through the Registrar, the Agent of the United Kingdom Government ("the Government"), the Delegate of the Commission and the applicant’s lawyer on the need for a written procedure (Rule 37 § 1). Thereafter, in accordance with the President’s orders and directions, there were lodged at the registry, on 13 August 1986, a memorandum of the applicant setting out her claim under Article 50 (art. 50) of the Convention and the memorial of the Government. By letter of 21 October 1986, the Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearings. 6.    On 23 October 1986: (a) the Chamber decided under Rule 50 to relinquish jurisdiction forthwith in favour of the plenary Court; (b) the President of the Court directed that the oral proceedings in this case and in the cases of O, W, B and R v. the United Kingdom be conducted simultaneously and that the same should open on 25 November 1986 (Rules 37 § 3 and 38); (c) the Court decided that, in view of the exceptional circumstances, the hearings should be held in camera (Rule 18). As regards points (b) and (c), the Court or its President, as the case may be, had previously consulted, through the Registrar, the Agent of the Government, the Delegate of the Commission and the representatives of the applicants. 7.    The hearings were held in camera in the Human Rights Building, Strasbourg, on 25 and 26 November 1986. Immediately before they opened, the Court had held a preparatory meeting. There appeared before the Court: - for the Government   Mr. M. Wood , Legal Counsellor,       Foreign and Commonwealth Office,   Agent,   The Hon. Michael Beloff , Q.C.,   Mr. E. Holman , Barrister-at-Law,   Counsel ,   Mr. R. Aitken , Department of Health and Social Security,   Mrs. A. Whittle , Department of Health and Social Security,   Mr. H. Redgwell , Lord Chancellor’s Department,   Mr. P. Evans , Solicitor’s Office,       Gloucestershire County Council,   Advisers ; - for the Commission   Mr. H. Danelius ,   Delegate ; - for the applicant   Miss H. Manners , Barrister-at-Law,   Counsel ,   Miss J. Atkinson ,   Adviser . The Court heard addresses by Mr. Beloff for the Government, by Mr. Danelius for the Commission and by Miss Manners for the applicant, as well as replies to questions put by the Court and three of its members. The Government filed various documents during or immediately after the hearings. AS TO THE FACTS I.   Particular circumstances of the case A. Background 8.    The applicant is a British citizen, born in 1949. Her early life was marked by disruptive and aggressive behaviour, and she spent several periods in mental hospitals after drug overdoses and bouts of violence. 9.    In March 1973, whilst in hospital, she married X, a compulsorily detained patient. They had difficulty in managing their financial affairs and were "manipulative" of staff and patients. Both were discharged from hospital in September 1974, but voluntarily remained as out-patients. In February 1975, the applicant rejoined her family and had a pregnancy terminated, but following her return to X was again admitted to a mental hospital. On 23 December 1975, she gave birth to A. B. Place of safety and interim care orders; wardship of A 10.    The local County Council ("the Council"), which had been involved in providing social-worker support to the applicant and X, considered that it was only a matter of time before A suffered if she remained with them. X was very frequently violent or abusive and the applicant was impulsive, unpredictable and liable to irrational outbursts; the help received from the social services was apparently not sufficient to reverse these behavioural patterns. Even the separation of X and the applicant, who on the advice of a welfare worker had been admitted to hospital with A as a voluntary patient on 26 January 1976, was not expected radically to alter the position. 11.    The Council therefore applied to a juvenile court for a place of safety order (see paragraph 35 below) in respect of A. Such an order was made on 12 February 1976. On 26 February and 22 March, the juvenile court made interim care orders (see paragraph 41 below) in respect of the child and, on 24 March, following an application by the Council to the High Court, she became a ward of court (see paragraphs 51-53 below). 12.    In April 1976, the applicant left X and subsequently, in September 1977, obtained a divorce from him. C. Initial High Court proceedings concerning access 13.    A was placed in a nursery where the applicant saw her for access seventeen times between the spring and autumn of 1976. During some of this period the applicant was in a home for battered wives, where she gave indications of violence on two occasions. 14.    On 14 December 1976, the applicant applied, unsuccessfully, to the High Court pursuant to the wardship jurisdiction for staying access. Following a further application of 1 February 1977 to the High Court, she was permitted four hours’ access once weekly, initially at the nursery and subsequently at her parents’ home. Access visits occurred pursuant to this order until June 1977 and the applicant’s overall handling of A was not open to serious criticism. She had in May of that year met H, whom she was later to marry and who had a very significant stabilising effect on her (see paragraph 17 below). 15.    The applicant subsequently applied to the High Court pursuant to the wardship jurisdiction for care and control of A. During the four-day hearing, which ended on 24 June 1977, she altered her application to one for increased access, including staying access. The Council contended that the existing access arrangements should be retained but not increased. In a report dated 17 February 1977, the Official Solicitor, representing A as guardian ad litem (see paragraph 53 below), expressed no firm view but hoped that the recent improvement in the applicant’s behaviour would continue. Evidence was given by four doctors, two (who had not met the applicant) on behalf of the Council and two on behalf of the applicant. The High Court refused the application, terminated the applicant’s access to A and committed A to the care of the Council under section 7(2) of the Family Law Reform Act 1969 (see paragraph 52 below). In the course of his judgment the judge made a recommendation, which was formally recorded in his order of 24 June 1977 and apparently reflected the evidence of one of the doctors and the final submission of the Official Solicitor, that A be adopted. This took the Council and the applicant by surprise as neither of them had dealt with this possibility in their pleadings. However, the applicant did not exercise her right of appeal (see paragraph 53 below). 16.    It appears that in the light of this recommendation the Council decided within a short period to place A for adoption. On 21 September 1977, the adoption health forms were sent to the appropriate doctor for completion and, between then and 29 September, the relevant forms were also sent to the applicant. She received, inter alia, the Explanatory Memorandum required by the Adoption Agencies Regulations 1976, the first sentence of which reads: "This Memorandum must be given to the parent ... of a child who is about to be adopted", and she was therefore informed from this moment of the Council’s decision. Indeed, it appears that on 29 September a social worker visited the applicant to discuss adoption and her refusal to sign the certificate at the end of the said Memorandum. At this time, the Council withdrew its social-worker support for the applicant, in the context of her relationship with A, since it was no longer envisaged that this relationship should be nurtured. The Council subsequently proceeded to seek - and ultimately, on 12 October 1978, found - prospective adopters. D. Later High Court proceedings concerning access and adoption 1. Preliminary phase 17.    On 24 October 1977, the applicant married H. Thereafter, her mental and physical position stabilised and, by January 1978, there were signs of a substantial improvement in her health. She and her husband persistently but unsuccessfully approached the Council with a view to re-establishing contact between herself and A, who had remained in a residential nursery. Their interviews with the social services in late 1977 and early 1978 were marked by tension and a deterioration of relations with the social workers. In January 1978, the Council informed them that they would be told as soon as a placement for A was found, so that they could put their point of view in court. 18.    In the light of their stable relationship, the applicant and H considered that the Council was unreasonable in refusing them access to A. They therefore instituted, on 13 November 1978, proceedings before the High Court pursuant to the wardship jurisdiction to re-establish access (see paragraph 53 below). According to the Local Ombudsman’s report (see paragraph 31 below), they had, on their solicitors’ advice, deferred making an approach to the courts so that they could show that the applicant’s health had improved and that she had a stable home. The summons issued for access in favour of the applicant was due to be heard on 1 December 1978. On that day, the court ordered H to file evidence in support of the application within twenty-one days and the Council to file evidence twenty-one days thereafter. Leave was granted for A to be examined by a psychiatrist nominated by the Official Solicitor if he saw fit and for all parties to file psychiatric evidence about other parties to the proceedings, including H and A. The summons was then adjourned, with liberty to the parties to restore it. In subsequent proceedings before the High Court, it was agreed that at the hearing on 1 December 1978, the Council, though apparently without mentioning that it had found prospective adopters in October (see paragraph 16 above), had made its intention to place A for adoption quite clear. All the parties seem to have acquiesced in such placement, to be followed by a combined hearing on the adoption and the access questions, which hearing they clearly envisaged would be held in about six months’ time, before the 1979 long vacation. In particular, the applicant made no request that the placement be postponed and the Council raised no objection to filing its evidence within the time-limit set. 19.    On 10 January 1979, A was introduced to the prospective adopters for the first time. After a series of visits, the Council placed her with them on 2 March 1979, a fact of which the applicant was not informed. 2. Evidence of H and of the Council 20.    Allegedly on account of the Christmas holiday period and the need to seek legal aid, H was late in filing his evidence, which did not reach the High Court until 2 February 1979. 21.    The Council thereupon failed to meet its deadline of 23 February 1979. The applicant’s solicitor, who had written to the Council on the subject on 15 February without receiving a reply, wrote again on 16 March indicating that, unless its evidence was lodged within seven days, he would refer the question back to the court. When the Council telephoned him on 26 March to assure him that the filing would be effected within two weeks, he replied that this would not be sufficient and that the matter was urgent. However, he did not at this point make any further approach to the court. In the meantime, on 27 February, the solicitor had written to the Council asking for a report on A’s condition. Following a reminder dated 5 April, the Council replied on 10 April that "A has continued to make good progress and has maintained normal development in all spheres". No reference was made in that letter, or otherwise, to the fact that A had been placed with prospective adopters. The latter had, on 6 March, notified the Council of their intention to apply for her adoption. 22.    On 12 April 1979, the Official Solicitor informed the applicant’s solicitor in correspondence that he was unable to arrange for his enquiries for the purpose of the access and adoption proceedings to be made until the Council had filed its evidence; he described the delay on the latter’s part as "quite unacceptable". The applicant’s solicitor instructed London agents with a view to applying for an order directing the Council to file, and he pressed the Council again on the matter on 11 June. On 14 June, he informed the Official Solicitor that the agents were having "extreme difficulty with obtaining dates in London [for a hearing to order the Council to file evidence] due to the recent civil service dispute". The Government have indicated that there does not appear to have been any particular backlog or listing difficulty at that time. 23.    On 27 June 1979, the Council informed the solicitor that the relevant affidavits were substantially complete and would be signed in the following week. On 29 June, he nevertheless served a summons, returnable on 31 July, on the Council to order it to comply with the High Court’s direction of 1 December 1978. On 27 July, the Council acknowledged by telephone receipt of the summons and stated that the evidence would be available by 31 July. However, it was not. The registrar directed the Council to file within seven days and ordered costs against it. 24.    Two affidavits were filed by the Council on 3 August 1979 and were received by the applicant’s solicitor on 6 August. On that date, he and his client became aware for the first time that A had been placed for adoption during the previous March (see paragraph 19 above). The Council filed a further affidavit on 10 August. The Official Solicitor received copies of these affidavits on 22 August. 3. The Official Solicitor’s report 25.    Until August 1979, the Official Solicitor had also been unaware of A’s placement for adoption. On 25 September, the applicant’s solicitor asked him if his report on the child was now prepared. On 4 October, he replied that no arrangements had yet been made to visit the parties nor had a consultant psychiatrist been instructed; he had, however, been informed by the Council that the prospective adopters of A had instructed solicitors and proposed to apply to the High Court for leave to commence adoption proceedings (see paragraph 62 below). The Official Solicitor stated: "if this is the case it seems to me that it would be more sensible for your client’s application for access and the application for adoption to be heard together, but as soon as I have heard from the foster parents’ solicitors the exact position I shall write to you further." The applicant’s solicitor replied on 16 October, stressing that since the Council had for so long taken no steps in relation to the proposed adoption proceedings, it should not further delay the hearing of his client’s application for access. On 22 October, the Official Solicitor confirmed that he would arrange "in the near future" for the visits and the instruction of the psychiatrist. 26.    There followed correspondence between the applicant’s solicitor and the solicitors acting for the prospective adopters of A as to whether it was necessary to seek leave to initiate adoption proceedings in the light of the adoption recommendation recorded in the High Court’s order of 24 June 1977 (see paragraph 15 above). The former contended that the circumstances of the case had totally changed since then and that leave should therefore be sought anew, A still being a ward of court. The latter stated that they were ignorant of the proceedings taken thus far in wardship but considered that the adoption and access issues should be decided at the same time. By letter of 27 November, the Official Solicitor confirmed that he agreed with the second approach since it would save costs. 27.    On 14 January 1980, the applicant’s solicitor again pressed the Official Solicitor to proceed in the matter since no further steps had been taken with regard to the proposed adoption proceedings and this was delaying the hearing of his client’s application for access. He was informed by the Official Solicitor on 28 January that the latter had received a draft of the evidence to be submitted in relation to the proposed adoption.   According to the Government, the Official Solicitor could not commence his enquiries for the combined purpose of the access and the adoption proceedings until he had received this evidence. It appears that the originating summons for the adoption was in fact issued on 30 November 1979 and that the evidence of the prospective adopters was filed on 22 January 1980 and received by the Official Solicitor on 8 February. The Official Solicitor appears to have commenced his formal enquiries on 12 February and on 3 April he confirmed to the applicant’s solicitor that a psychiatrist’s report was in the course of preparation, on receipt of which the wardship and adoption reports would be prepared and filed. By 23 May, the Official Solicitor had completed his enquiries and it was possible to fix a date for the hearing. The parties - without reference to the Official Solicitor, who would have preferred an earlier date - chose 8 October, the first available date in term-time; they made no attempt to ask the court to certify the case as fit for vacation business, which could have enabled it to be heard in August or September. 4. The High Court’s decision 28.    The hearing before the High Court was actually held on 21 and 22 October 1980. On the following day, the judge made an adoption order in respect of A (who was de-warded), dispensed with the applicant’s consent to the adoption (see paragraph 61 below) and refused her access to A. In a long and detailed review, the judge described the case as "difficult and painful", in particular because the circumstances before him in no way arose from any fault or blameworthy conduct on the applicant’s part. As regards the delays since the proceedings were issued on 13 November 1978, he noted that between February and August 1979 both the applicant’s solicitor and the Official Solicitor had been "trying their best to obtain the evidence from the Council" and that on 3 August, when that evidence was filed, the applicant and her advisers learned for the first time of A’s placement for adoption. Whilst taking the view that the Official Solicitor had "acted with all reasonable promptness", he described the Council’s delay, though not deliberate, as "quite deplorable", adding that the apology made by its legal department "does not assist [the applicant] whose case was seriously prejudiced by this delay". He pointed out that "[in adoption proceedings] delay is a potent weapon and courts and practitioners must be vigilant to ensure that the position of natural parents is not prejudiced thereby". Nevertheless, the result of the delay here was that when the case came before the court, A, who was aged four years and ten months, had been with the prospective adopters for nineteen months and had not seen her mother since June 1977, nearly three and a half years previously. Having taken account of the marked improvement in the applicant’s general circumstances, the judge summarised her case as follows: since everyone was agreed that she was now capable of coping with a child, there was no reason why she should not have A back or at least be allowed to attempt a re-introduction to her; the procedures and delays in both the wardship and the adoption applications had been such as to deny justice to her and also to A; in particular, since July 1977 the Council had closed its mind to any possible rehabilitation and had ceased to provide her with any support, being intent on taking A from her and placing A for adoption. However, the judge held that in deciding whether the applicant’s withholding of her consent to the adoption was unreasonable, he had to take account of the facts as they existed at the date of the hearing. Referring to section 3 of the Children Act 1975 (see paragraph 61 below), he noted that the welfare of the child was the first and paramount consideration outweighing all others, but recognised that, in accordance with the case-law of the House of Lords, "the claims of the natural parents must be given great weight" and that consideration had to be given, albeit to a much lesser extent, to the interests of the prospective adopters. On the question of access, the judge recognised that, where the "statutory guillotine" of adoption was implemented, its purpose was to sever all connection with the natural parents and to establish a fresh legal relationship with the adoptive parents. He could find no reason to justify the applicant’s re-introduction to A in the circumstances and therefore ordered that no access be granted. E. Appeal proceedings 29.    An appeal by the applicant from this decision was dismissed on 14 January 1981 by the Court of Appeal, which also refused leave to appeal to the House of Lords. The Court of Appeal recognised its very limited function in appeals in adoption cases and the limited extent to which it could override the opinion of the first-instance judge, who had heard the witnesses. Having stressed the painful nature of the case and the applicant’s legitimate sense of grievance arising from the delay, the Court of Appeal recalled that both the judge and it had to deal with the situation existing at the time of the hearing. It added: "One may make one’s criticisms of the conduct of the Council, but the fact remains that we are dealing here with the life of another human being and that is not to be decided in awarding pluses and minuses to parties on the conduct of litigation." 30.    The applicant sought leave from the Appeal Committee to appeal to the House of Lords but this was refused on 10 June 1981. A subsequent request by her for legal aid with a view to establishing whether she had a cause of action in damages against the Council for its delay in filing evidence was also unsuccessful. F. Local Ombudsman 31.    The applicant referred the matter to the Local Ombudsman, who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions. The applicant alleged maladministration, in that from mid-1977 the Council had ceased to support her and had thereafter refused to take account of her improved condition and her increasing ability to look after A. She also complained that the Council’s conduct had been such as to ensure that she did not have the opportunity of looking after the child and that it had refused to examine fully a request by the applicant and H to be considered as foster or adoptive parents. In his report of 18 August 1983, the Local Ombudsman recognised that it was "certainly not for [him] to question the merits of [the] court decisions in these proceedings". He concluded that the applicant’s complaints revealed no maladministration except in respect of the Council’s delay in filing evidence. He stated: "It is quite clear from this investigation that part of the delay in getting the matter before the Court was caused by the Council, and this has already been criticised by the Judge. This delay was unreasonable and amounts to maladministration, but I must consider what injustice flowed from it. In many cases it could be that the longer the delay, the more difficult it would be for a Court to break a bond with prospective adoptive parents - the Court after all have to consider what is best for the child at the time they come to their decision. Here, however, it is not so simple. [The applicant] felt she was getting better, so to some extent the longer the time for her to improve, the greater would be her chances of success before the Court. I have read the decision of the High Court very carefully, but it seems to me that it is very unlikely indeed that the decision would have been different even if the Council had acted more quickly." G. Subsequent developments 32.    In 1980, the applicant and H discovered A’s whereabouts and the identity of the adoptive parents and made various attempts to contact the child, either at home or at school. In consequence, the adopters instituted wardship proceedings with a view to obtaining an injunction preventing such contacts. The failure, on numerous occasions, of the applicant and H to abide by the High Court’s orders in this respect has led to contempt of court proceedings against them. Requests by them to the local authority for permission to see A - who remains a ward of court - have been unsuccessful, as have applications to the High Court for leave to issue a summons for access. II. Relevant domestic law and practice A. Child care 1. Introduction 33.    In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority. Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative. The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets. By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for compulsory care and, above all, the wardship jurisdiction of the High Court which were directly relevant. 2. Compulsory care 34.    The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders. (a) Place of safety order 35.    Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger. A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it. If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 51-53 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 36-38 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 41 below); if an application of the last kind is refused, the child’s immediate release "may be ordered". (b) Longer-term measures (i) Care proceedings 36.    Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court. 37.    In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented. A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation. 38.    If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 35 above). (ii) Relevant orders 39.    A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents. 40.    A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption. 41.    An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 35 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 40 above). (c) Termination, variation or discharge of full care orders 42.    A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act). In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child. (d) Appeals concerning care orders 43.    Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords. The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court. 3. Voluntary care 44.    The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently.   (a) Reception of a child into care 45.    Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare. 46.    Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]). Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 47 below) or apply to make the child a ward of court (see paragraphs 51-53 below). (b) Parental rights resolution 47.    If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975). Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account. (c) Objections to parental rights resolutions 48.    If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]). (d) Termination or discharge of parental rights resolutions 49.    A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]). The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980). (e) Appeals concerning parental rights resolutions 50.    Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords.   4. Wardship 51.    The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court. 52.    The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority. Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child. 53.    Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an