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Lord Mackay of Clashfern L.C. My Lords, this is an appeal by leave of your Lordships' House against the decision of the Court of Appeal dated 30 July 1993 for which the reasons were given on 15 October as reported [1994] Fam. 95. By that decision the Court of Appeal reversed the decision of Bracewell J. in which she had granted a care order in favour of the local authority in respect of M., and substituted a residence order in respect of M. in favour of Mrs. W.
The sad facts may be shortly stated. The child concerned is M., who was born on 28 June 1991. His mother was a woman whose family came from Jamaica but was herself born in England. The mother had three children before M., a son L., born on 27 March 1984 and twins born on 12 June 1987. The father of the twins was a different man from L.'s father. Neither of these fathers retained contact with their children. In January 1990 the mother married, in this country, the father of M. who is a Nigerian. After M.'s birth he lived with his mother, his half-brothers and his half-sister in a home which was visited by the father, who had retained his own accommodation.
On 12 October 1991 tragedy struck when the father murdered the mother at her home in the presence of all four children. The boyfriend of the mother was also injured in the incident. It was a very brutal and violent murder which involved the use of a meat cleaver and a knife.
Emergency proceedings were taken to protect the children by the police. L. and the twins were placed with Mrs W., a cousin of the mother, who is the third respondent in these proceedings. A residence order in respect of these three children was granted to Mrs. W. and they have lived with her ever since. M. was placed with a short term foster mother where he remained until November 1993 when as a result of the judgment of the Court of Appeal he went to stay with Mrs. W. following a period of introductions and transition from his foster home. Since then M. has lived with Mrs. W. although he has stayed with his previous foster mother about three times and in April 1994 he went away with his foster mother and her family for a weekend stay in a caravan. From information laid before your Lordships, M. has settled down very well with Mrs. W. and he appears a boisterous, healthy and happy child who has totally relaxed and feels secure with her. His progress since he has gone to live with Mrs. W. appears to have been excellent and this is attributed, at least in part, to Mrs. W.'s sensitive nurture of him. It is generally accepted now that M. is appropriately placed with Mrs. W.
The matter in issue between the parties before your Lordships was the proper construction of section 31 of the Children Act 1989 and its application to the facts of the present case. So far as relevant it is in these terms:
"(1) On the application of any local authority or authorised person, the court may make an order - (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority or of a probation officer. (2) A court may only make a care order or supervision order if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to - (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control. . . . (4) An application under this section may be made on its own or in any other family proceedings. . . . (9) In this section . . . 'harm' means ill-treatment or the impairment of health or development; 'development' means physical, intellectual, emotional, social or behavioural development; 'health' means physical or mental health; and 'ill-treatment' includes sexual abuse and forms of ill-treatment which are not physical. . . . (11) In this Act - 'a care order' means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and 'a supervision order' means an order made under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38."
Section 32(1) provides:
"A court hearing an application for an order under this Part shall (in the light of any rules made by virtue of subsection (2)) - (a) draw up a timetable with a view to disposing of the application without delay; and (b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to."
Section 37 confers power on the court in any family proceedings in which a question arises with respect to the welfare of a child to direct the appropriate local authority to undertake an investigation of the child's circumstances and the court can give a direction under that section that the local authority concerned should consider whether they should apply for a care order or a supervision order with respect to the child. Section 38 gives power to the court to make interim care orders. Section 41 provides that the court shall appoint a guardian ad litem for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests inter alia on an application for a care order or supervision order. There is provision in section 43 for the making of a child assessment order and in section 44 an order for the emergency protection of a child. Section 46 gives power to a constable to remove a child to suitable accommodation and keep him there in order to take certain other steps for the protection of a child in case of emergency.
The provisions to which I have so far referred are provisions from parts of the Act dealing with public law, that is to say primarily the relationship between local authorities and children within their areas. The part of the Act dealing with family proceedings, which is Part II, and the general introductory part of the Act, are also of importance in dealing with this appeal but I need not refer to them in detail at present.
The trial judge heard argument that the requirements in section 31(2)(a) and (b) were not satisfied in the present case. She said:
"I have considered the submissions and the evidence, and I am satisfied that [M.] is suffering significant harm within the meaning of section 31(2)(a) in that he has suffered ill-treatment by being permanently deprived of the love and care of his mother when she was murdered in his presence, and in the presence of his half brothers and sister in October 1991. I am also satisfied that under section 31(2)(b) the significant harm is attributable to the care given to the child by the father not being what it would be reasonable to expect a parent to give to him, in that the father deprived the child, by his actions, of the care of a loving mother. I am also satisfied that if an order were not made the child would be likely to suffer significant harm in that he is a small child with special needs, has no permanent home, and the only person with parental responsibility is the father who is unable to exercise it appropriately or fully in that he is serving a life sentence with an order of deportation upon release. The relevant date for the words 'is suffering' in section 31(2)(a) I find relates to the period immediately before the process of protecting the child is first put into motion, that is when the father deprived the child for all time of his mother. I am therefore satisfied that the threshold test is met. That does not mean that the court has to make a care or supervision order."
The judgment of the Court of Appeal deals with this matter at p. 100:
"Simply as a matter of the statutory language referred to above it seems clear that a court may only make a care order - for present purposes it is unnecessary to consider separately the case of a supervision order - if it is satisfied: (a) that the child is suffering significant harm, and that the harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give to him; or (b) that the child is likely to suffer significant harm and that the likelihood of harm is attributable to the care likely to be given to the child if the order were not made not being what it would be reasonable to expect a parent to give to him. The use of the present tense in the first of these alternatives 'is suffering' - makes it clear that the harm must be being suffered at the relevant time, which is when the court has to be satisfied of the fulfilment of the threshold conditions, i.e. when it decides whether or not to make a care order. This is clear from the language used; it is also consistent with other areas of the law relating to children."
The Court of Appeal then go on to refer to section 16 of the Adoption Act 1976 and the decision of this House In re W. (An Infant) [1971] A.C. 682, where the test was decided to be whether at the time of the hearing the consent is being withheld unreasonably. The Court of Appeal then refers to section 1(2) of the Children and Young Persons Act 1969 - which was replaced by section 31 of the Children Act 1989 - and to the speech of my noble and learned friend,
Lord Goff of Chieveley, in In re D. (A Minor) [1987] A.C. 317, 350. The Court of Appeal conclude, at p. 101:
"Thus it is not enough that something happened in the past which caused the child to suffer harm of the relevant kind if before the hearing the child has ceased to suffer such harm. Of course, that would still leave it open to the court to be satisfied that the child is likely to suffer significant harm of the relevant kind. That being our considered view of the meaning of section 31 of the Act of 1989, we turn to consider whether there is any authority which requires us to reach a contrary conclusion."
They then refer to a decision of a Divisional Court of the Family Division, M. v. Westminster City Council [1985] F.L.R. 325 and conclude that it was sufficient to say that it was a decision on a provision which is markedly different from section 31 of the Act which was being considered in the present case.
They then refer to the speech of Lord Brandon of Oakbrook in In re D. (A Minor) [1987] A.C. 317, 346 and find it difficult to reconcile this part of Lord Brandon of Oakbrook's speech with that of Lord Goff of Chieveley and prefer the reasoning of Lord Goff of Chieveley, but again they conclude that Lord Brandon of Oakbrook was referring to a provision significantly different from that which they had to consider.
Finally they refer to the decision of Ewbank J. in Northamptonshire County Council v. S. [1993] Fam. 136, 140:
"In my judgment, the words 'is suffering' in section 31(2)(a) of the Children Act 1989 relate to the period immediately before the process of protecting the child concerned is first put into motion, just as in the Children and Young Persons Act 1969. That means that the court has to consider the position immediately before an emergency protection order, if there was one, or an interim care order, if that was the initiation of protection, or, as in this case, when the child went into voluntary care. In my judgment, the family proceedings court was quite entitled to consider the position when the children were with the mother prior to going into care and was correct in doing so."
Of that passage the Court of Appeal said [1994] Fam. 95, 102:
"It will be apparent from what we have already said that we do not agree with this conclusion. The decision, being at first instance, is not binding on us and must be considered incorrect."
The Court of Appeal then go on to consider the legislative history and I do not find it necessary to comment on that in any detail.
Coming to the facts of the present case the Court of Appeal, having referred to the passage I have already cited from Bracewell J. in which she dealt with the application of section 31(2)(a) to the facts of the present case, went on, at p. 104:
"In our judgment that finding is wrong in each of its two limbs. Each limb refers to the past event of the father's murder of the mother. The second limb also artificially looks only to the care given by the father, even though for the 16 months prior to the hearing the father, being in prison, was in no position to give care . . . and it ignores the care actually given to [him] by the foster mother. Neither limb refers to the circumstances existing as at the date of the hearing. In our judgement, on the facts as we have stated them, there is no material before the judge which entitled her to find that, as at the date of the hearing, [M.] was suffering significant harm of the relevant kind."
The Court of Appeal then went on to quote the passage I have already cited in which the judge dealt with the second limb and went on:
"If the position at the date of the hearing had been that [M.] was no longer able to stay with Mrs. C. (as was the case) and that there was no other suitable home within his family available for him, then it might well have been open to the judge to find that [M.] was likely to suffer significant harm of the relevant kind. But there was another family home available to [M.] - that offered by Mrs. W. where he would be with his half brothers and sister. If [M.] went to live with Mrs. W., there was nothing to suggest that he would be likely to suffer significant harm, attributable to the care likely to be given to him by Mrs. W. if the (care) order were not made, not being what it would be reasonable to expect a parent to give to him."
The Court of Appeal concluded, at p. 105:
"As we are satisfied that the threshold conditions were not satisfied we do not need to consider whether the judge's exercise of her discretion to make a care order could have been successfully challenged."
In my opinion the opening words of section 31 link the making of an order by the court very closely with the application to the court by a local authority or authorised person. Section 31(2) then goes on to specify the conditions which are necessary to be satisfied before the court can make a care order or supervision order, but it is plain from this and the statute as a whole that even if these conditions are satisfied the court is not bound to make an order but must go through the full procedure particularly set out in section 1 of the statute. It is also clear that Parliament expected these cases to proceed with reasonable expedition and in particular I refer to section 32 in which the hearing by the court is not regarded only as taking place at the time when the applications are disposed of. Indeed, I think there is much to be said for the view that the hearing that Parliament contemplated was one which extended from the time the jurisdiction of the court is first invoked until the case is disposed of and that was required to be done in the light of the general principle that any delay in determining the question is likely to prejudice the welfare of the child. There is nothing in section 31(2) which in my opinion requires that the conditions to be satisfied are disassociated from the time of the making of the application by the local authority. I would conclude that the natural construction of the conditions in section 31(2) is that where, at the time the application is to be disposed of, there are in place arrangements for the protection of the child by the local authority on an interim basis which protection has been continuously in place for some time, the relevant date with respect to which the court must be satisfied is the date at which the local authority initiated the procedure for protection under the Act from which these arrangements followed. If after a local authority had initiated protective arrangements the need for these had terminated, because the child's welfare had been satisfactorily provided for otherwise, in any subsequent proceedings, it would not be possible to found jurisdiction on the situation at the time of initiation of these arrangements. It is permissible only to look back from the date of disposal to the date of initiation of protection as a result of which local authority arrangements had been continuously in place thereafter to the date of disposal.
It has to be borne in mind that this in no way precludes the court from taking account at the date of the hearing of all relevant circumstances. The conditions in subsection (2) are in the nature of conditions conferring jurisdiction upon the court to consider whether or not a care order or supervision order should be made. Conditions of that kind would in my view normally have to be satisfied at the date on which the order was first applied for. It would in my opinion be odd if the jurisdiction of the court to make an order depended on how long the court took before it finally disposed of the case.
However, I believe that help in the construction of this provision is obtained from the judgment of your Lordships' House in In re D. (A Minor) [1987] A.C. 317. That was concerned with the provisions of the Children and Young Persons Act 1969 as later amended [Section 108(1)(a) of and paragraph 67 of Schedule 3 to the Children Act 1975 and substituted by section 9 of and paragraph 10 of Schedule 2 to the Health and Social Services and Social Services and Social Security Adjudications Act 1983] and the relevant provisions are in these terms:
"1(1) Any local authority . . . who reasonably believes that there are grounds for making an order under this section in respect of a child . . . may . . . bring him before a juvenile court. (2) If the court before which a child . . . is brought under this section is of opinion that any of the following conditions is satisfied with respect to him, that is to say - (a) his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated; or (b) it is probable that the condition set out in the preceding paragraph will be satisfied in his case, having regard to the fact that the court or another court has found that that condition is or was satisfied in the case of another child . . . who is or was a member of the household to which he belongs; or (bb) it is probable that the condition set out in paragraph (a) of this subsection will be satisfied in his case, having regard to the fact that a person who has been convicted of an offence mentioned in Schedule 1 to the [Children and Young Persons Act 1933] . . . is, or may become, a member of the same household as the child . . . and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, then . . . the court may if it thinks fit make such an order. (3) The order which a court may make under this section in respect of a child . . . is . . . (c) a care order (other than an interim order); . . ."
Section 28(1) provides:
"If, upon an application to a justice by any person for authority to detain a child . . . and take him to a place of safety, the justice is satisfied that the applicant has reasonable cause to believe that - (a) any of the conditions set out at section 1(2)(a) to (e) of this Act is satisfied in respect of the child . . . the justice may grant the application; . . ."
The facts in that case are stated by Lord Brandon of Oakbrook, at pp. 336-337:
"(a) The child was born to the mother, then aged 29, on 12 March 1985 at the Royal Berkshire Hospital, Reading. (b) At the time of her birth the child was suffering from symptoms caused by withdrawal from narcotics. (c) The mother had been a registered drug addict since 1982 and had been taking drugs for approximately 10 years. (d) The mother had continued to take drugs, both by oral means and by injection, from the time when she knew that she was pregnant to the time when the child was born. (e) During the pregnancy the mother took drugs in excess of those which were prescribed for her by a registered medical practitioner. (f) The mother knew that by taking drugs whilst pregnant she could be causing damage to her child. (g) The child was kept in intensive care in hospital for several weeks immediately following the birth. A place of safety order was obtained by Berkshire social services on 23 April 1985 and successive interim care orders were in force from 13 May 1985 to the date of hearing. (h) The child had not been in the care or control of the mother or the father since her birth. (i) The medical condition in which the child was born was a direct result of deliberate and excessive taking of drugs by the mother during pregnancy. (j) The mother, and the father too, continued to be addicted to drugs and remained so on the final day of the hearing of this case."
In my view the statutory provisions there in question were dealing with a similar subject matter to those of section 31 of the Children Act 1989, secondly they were describing the conditions under which the juvenile court should have jurisdiction and were in the relevant respect stated in terms of a continuing present and finally there were procedures for initiating protective measures which were available and could take effect to protect a child before the court required to dispose of the application for a care order. With regard to the meaning and effect of the expression "is being," Lord Brandon of Oakbrook posed four questions:
First, does the expression refer to an instant, or to a continuing situation? Secondly, if it refers to a continuing situation, as at what point of time should the court consider whether that continuing situation exists? Thirdly, how far back and how far forward, if at all, from that point of time should the court look? Fourthly, could the court look back to the time before the child concerned was born?
He answered the first question, at p. 345, by saying the expression refers to a continuing situation.
With regard to the second question after a careful analysis he reached this conclusion, at p. 346:
"it is, in my view, clear that the court, in considering whether a continuing situation of one or other of the kinds described in section 1(2)(a) exists, must do so as at the point of time immediately before the process of protecting the child concerned is first put into motion. To consider that matter at a point of time when the child has been placed under protection for several weeks, first by a place of safety order and then by one or more interim care orders, would, as pointed out by Bush J. in M. v Westminster City Council [1985] F.L.R. 325, 340, defeat the purpose of Parliament."
He answered the second question relating to the expression "is being" accordingly. It is not necessary for me to deal with his answers to the other questions.
Lord Goff of Chieveley gave an opinion in his own words leading to the same conclusion of the case as a whole as Lord Brandon of Oakbrook had reached, namely that the appeal was to be dismissed. I refer particularly to the passage in his speech where he said, at p. 350:
"I approach the matter as follows. The words 'is being' are in the continuous present. So there has to be a continuum in existence at the relevant time, which is when the magistrates consider whether to make a place of safety order. In cases under the subsection, this may not be established by proof of events actually happening at the relevant time."
It has been suggested by the Court of Appeal that in this passage Lord Goff of Chieveley is differing from Lord Brandon of Oakbrook. In my view this observation omits to notice that the place of safety order was not the care order which was the subject of appeal, but the preliminary protection order provided for by section 28 of the relevant statute. I am accordingly of the opinion that there is no difference on this matter between Lord Goff of Chieveley and Lord Brandon of Oakbrook. If there had been a difference on this matter between my noble and learned friends I would have expected Lord Goff of Chieveley to set out the reasoning to meet the approach taken by Lord Brandon of Oakbrook. There is no such reasoning and from this I conclude that Lord Goff of Chieveley is expressing a similar approach to that of Lord Brandon of Oakbrook in his own words. I have also to add that in my opinion there was no relevant difference in the factual position disclosed in In re D. (A Minor) between what obtained on 23 April 1985 when the place of safety order was made, and 1 August 1985 when the care order was made. The headnote expresses the decision on this point succinctly by saying:
"that the point of time at which the court had to consider whether a continuing situation of one or other of the three kinds described in section 1(2)(a) existed was the moment immediately before the process of protection was first put into motion; . . ."
Accordingly, I am of the opinion that the decision of this House, which I take to have been unanimous on this point, provides cogent support for the view which I have taken on a reading of the language of the current provision.
It is true that an important change has been made in the statutory provisions in respect that it is now permissible under the second branch of section 31(2)(a) to look to the future even if no harm has already occurred in the past. This is an important difference from the previous legislation but in my opinion to read the present legislation as the Court of Appeal has done is substantially to deprive the first branch of section 31(2)(a) of effect, as in the argument before your Lordships became very apparent. It is also clear that while Parliament added the new provisions looking to the future without any necessary connection with harm already suffered, it wished to retain the first branch in respect of harm which the child is suffering.
In my opinion the provisions of section 31(2) must be considered before the question of any competing order under the provisions of Part II of the Act are decided upon. The scheme of section 1(3) and (4) and in particular section 1(3)(g) appears to me to require that the court decide whether or not it has power available to it to make a care order or a supervision order before it decides whether or not to make an order at all and in particular whether or not to consider a section 8 order.
I have only to add that in my opinion the approach taken by Ewbank J. in Northamptonshire County Council v. S. [1993] Fam. 136, 140 in the passage quoted by the Court of Appeal is correct. I also consider that the decision of this House in In re W. (An Infant) [1971] A.C. 682, where the question was whether the time at which the court decides whether consent is being withheld unreasonably is the time of the hearing, referred to an entirely different subject matter from the present and therefore is not helpful in this context.
It follows that in my opinion the decision of the Court of Appeal in the present case was wrong and that the court did have jurisdiction to make a care order in the present case. This decision means that the basis on which the Court of Appeal in Oldham Metropolitan Borough Council v. E. [1994] 1 F.L.R. 568 intervened to overturn the decision at first instance following as it was bound to do the decision of the Court of Appeal in the present case can no longer be regarded as sound.
It remains to consider what should now be done in the present case. As I said the information available to your Lordships at the hearing before your Lordships suggests that M.'s stay with Mrs. W. has been very satisfactory to date. In the light of the options available, and the provisions of section 1 of the Children Act 1989, I am of opinion that the choice is between a residence order in favour of Mrs. W. or a care order as asked for by the appellant father. I am clearly of the view that it would be quite wrong at present to disturb the arrangements presently existing for M.'s residence and that whether or not a care order is made, the local authority would be perfectly right to continue the present arrangements for M. making his home with Mrs. W. However, we cannot foresee the future and the judge who heard all the evidence did foresee the possibility in the longer term of difficulties. Although I hope that no difficulties will materialise I think it best in the difficult circumstances of this child that your Lordships should restore the care order which will enable the local authority to monitor the progress of the child and also has features such as that provided for by section 33(3)(b) which might enable appropriate action to be readily taken if circumstances so required to determine the extent to which the father should meet his parental responsibility for M.
At first the appellant was inclined to ask for a remit to the Family Division to consider the matter afresh in the light of your Lordships' views, but by the conclusion of the hearing all parties appearing before your Lordships were agreed that this was not necessary but that assuming there was jurisdiction to make it, a care order would be appropriate making it clear that your Lordships understood that the local authority will continue the present arrangements for M. to live with Mrs. W. unless and until in their judgment circumstances had changed to require some alteration in the situation. Accordingly in my view this appeal should be allowed and the care order made by Bracewell J. should be restored. There should be no order for costs but for legal aid taxation where appropriate.
Lord Templeman. My Lords, this appeal is an illustration of the tyranny of language and the importance of ascertaining and giving effect to the intentions of Parliament by construing a statute in accordance with the spirit rather than the letter of the Act.
In the present case the intentions of Parliament are not in doubt. By section 1(1) of the Children Act 1989:
"(1) When a court determines any question with respect to (a) the upbringing of a child; or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration."
Under Part II of the Act of 1989 and in particular section 8, the court may make a residence order settling the arrangements to be made as to the person with whom a child is to live.
Under Part IV of the Act and in particular section 31, the court may make a care order placing a child in the care of a local authority. Section 31 (so far as material) provides as follows:
"(1) On the application of any local authority or authorised person, the court may make an order - (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority or of a probation officer. (2) A court may only make a care order or supervision order if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm or likelihood of harm, is attributable to - (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control."
On 12 February 1993 Bracewell J. gave judgment in proceedings in which the respondent Mrs. W. sought a residence order and the respondent local authority sought a care order in respect of a little boy, M. M. was born on 28 June 1991, the child of a mother of Caribbean origin and her then husband a Nigerian. On 12 October 1991 M., then nearly four months old was living with his mother and her three other children namely a son aged seven and twins aged four. M.'s father was not the father of the mother's other children. On that day, 12 October 1991 the mother was brutally stabbed to death by M.'s father in the presence of the mother's four children. The father is now serving a life sentence and has been recommended for deportation on his release. The mother's three oldest children went to live with Mrs. W. who was the mother's maternal cousin. M. went to live with a Mrs. C. with whom he was quite happy but with whom he could not stay permanently. Hence the applications for a residence order or a care order which came before Bracewell J. in February 1993.
Pursuant to the duty imposed on the court by section 1(1) of the Act of 1989, Bracewell J. considered whether the welfare of M. would be best served by allowing him to be brought up by Mrs. W. in the company of his half-brothers under a residence order or whether the welfare of M. would be best served by providing for M. to be adopted by appropriate adopters pursuant to arrangements to be made by the local authority under a care order.
After receiving written and oral evidence from social workers, psychiatrists, Mrs. W. and the guardian ad litem appointed for M., and after hearing submissions from counsel on behalf of the father, the local authority, the guardian ad litem and Mrs. W., the judge gave a judgment in which she cogently set out the advantages and disadvantages for M. of life with Mrs. W. and his half-brothers on the one hand and on the other hand life with adopting parents free from involvement in the events or consequences of the murder of the mother of four children by the father of one of those children. Bracewell J. concluded that "the welfare of [M.] and his needs demand an adoptive placement outside the family." That conclusion was fully justified by the evidence although the judge could have reached a different conclusion and appreciated that the choice between Mrs. W. and adoption was not easy and inevitably involved speculation about the future. Mrs. W. appealed. The Court of Appeal allowed the appeal and made a residence order in favour of Mrs. W. without considering whether the welfare of M. would be best served by an adoptive placement outside the family and therefore without paying heed to the intentions of Parliament clearly expressed in section 1 of the Act of 1989. The father appeals to this House. Balcombe L.J. delivering the judgment of the Court of Appeal held [1994] Fam. 95, 100E, that a care order could only be made if, at the date of the hearing by the court of an application for a care order, the child in question "is suffering . . . or is likely to suffer significant harm." Balcombe L.J. assumed that on 12 February 1993 when Bracewell J. delivered judgment, M. was no longer suffering from significant harm resulting from the murder of his mother by his father on 12 October 1991 and concluded that M. was not likely to suffer significant harm after 12 February 1993 because he was living happily with Mrs. C. and was offered a home by Mrs. W. a lady who would undoubtedly be kind to him: see p. 104.
Balcombe L.J. said, at p. 100E:
"use of the present tense . . . 'is suffering' - makes it clear that the harm must be being suffered at the relevant time, which is when the court . . . decides whether or not to make a care order."
This preoccupation with the present tense involves the proposition that if a child suffers harm and is rescued by a local authority, a care order cannot be made in favour of the local authority because it can no longer be said that the child is suffering harm and if the parent who has caused the child harm is dead or in prison or disclaims any further interest it cannot be said that the child is likely to suffer harm. I cannot accept this approach. Restrictions on the right of a local authority to apply for a care order were imposed by section 31 to prevent a local authority interfering too readily with the rights and responsibility of parents. A local authority cannot apply for a care order unless at the date of the application the child is suffering or is likely to suffer significant harm. Once the local authority has grounds for making an application, the court has jurisdiction to grant that application. If between the date of the application and the date of the judgment of the court, circumstances arise which make a care order unnecessary or undesirable, the local authority can withdraw its application for a care order or the court can refuse to make a care order. If the court is faced with an application for a residence order and an application for a care order then the court must decide, as Bracewell J. decided, whether the welfare of the child will be best safeguarded by making a residence order under section 8 or a care order under section 31.
I would therefore allow the appeal and restore the care order made by Bracewell J. This does not mean that M. must be adopted. The child has been in the home of Mrs. W. and in the company of his half-brothers for the last seven months. He is quite happy, and Mrs. W. is an excellent mother. The welfare of M. would not be served by removing him from his home with Mrs. W. at this juncture. A care order has advantages from the point of view of Mrs. W. who has no husband living with her, who has two grown up children of her own, a family of four to look after and can turn to the local authority for advice and help if necessary. A care order has manifest advantages from the point of view of M. because the local authority will monitor his progress and will be able to intervene with speed if anything goes wrong. Having regard to M.'s history and circumstances it is highly desirable that the local authority shall exercise a watching brief on his behalf. I agree with the speech of my noble and learned friend, the Lord Chancellor, and in particular with his endorsement of the approach taken by Ewbank J. in Northamptonshire County Council v. S. [1993] Fam. 136, 140.
Lord Jauncey of Tullichettle. My Lords, I have read the speech of my noble and learned friend, the Lord Chancellor. I agree with it and for the reasons he gives I, too, would allow the appeal.
Lord Slynn of Hadley. My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, the Lord Chancellor and Lord Templeman. It is in my view, for the reasons they give, plain: (a) that Parliament cannot have intended that if a child is removed by a local authority from a situation in which the child is suffering harm, the local authority loses the capacity to ask for a care order; how the court's discretion is exercised at the time of its judgment is a different matter; (b) that in this case there was ample material on which Bracewell J. was justified in making a care order; (c) that that order should be restored on the basis that M. remains with Mrs. W. (as is agreed to be in his interest at the moment), the local authority by virtue of such a care order being in a position to keep a careful eye on his development and needs.
I would accordingly allow the appeal and restore the care order made by Bracewell J.
LORD NOLAN. My Lords, I, too, have had the advantage of reading in draft the speeches prepared by my noble and learned friends, the Lord Chancellor and Lord Templeman. I agree that the appeal should be allowed for the reasons which they give, and that the care order made by Bracewell J. should be restored.
The opening words of section 31(2) are plainly intended to ensure that no care order or supervision order should be made unless the case falls within the terms of sub-paragraphs (a) and (b). The court may only make the order if it "is satisfied" that this condition is met. It is equally plain that the evidence upon which the court will determine whether or not it is so satisfied, and if so what order should be made, will not be confined to evidence of the state of affairs at the date of the hearing. It will encompass the past and, so far as possible, the prospects for the future. Parliament cannot have intended that temporary measures taken to protect the child from immediate harm should prevent the court from regarding the child as one who is suffering, or who is likely to suffer, significant harm within the meaning of section 31(2)(a), and should thus disqualify the court from making a more permanent order under the section. The focal point of the inquiry must be the situation which resulted in the temporary measures being taken, and which has led to the application for a care or supervision order.
The learned judge dealt with the matter in this way:
"I am satisfied that he is suffering significant harm within the meaning of section 31(2)(a) in that he has suffered ill-treatment by being permanently deprived of the love and care of his mother when she was murdered in his presence, and in the presence of his half-brothers and sisters, in October 1991. I am also satisfied that under section 31(2)(b) the significant harm is attributable to the care given to the child by the father not being what it would be reasonable to expect a parent to give him, in that the father deprived the child, by his actions, of the care of a loving mother. I am also satisfied that if an order were not made the child would be likely to suffer significant harm in that he is a small child with special needs, has no permanent home, and the only person with parental responsibility is the father who is unable to exercise it appropriately or fully in that he is serving a life sentence with an order of deportation upon release."
By these words, as it seems to me, the judge linked the events of 12 October 1991 with her decision on 12 February 1993 in an entirely appropriate and satisfactory manner. By doing so she demonstrated that the case before her fell within the terms of section 31(2)(a) and (b) and that it was a case in which a care order was required to protect M. for the future.
I concur with the order proposed by my noble and learned friend, the Lord Chancellor.
Crown Copyright acknowledged
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