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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G (A Child) [2018] EWCA Civ 305 (28 February 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/305.html Cite as: [2018] EWCA Civ 305, [2018] 2 FLR 601, [2018] 1 FCR 629, [2018] 1 WLR 2769, [2018] WLR(D) 133, [2018] WLR 2769 |
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ON APPEAL FROM HHJ PEMBERTON
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOYLAN
and
LORD JUSTICE PETER JACKSON
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Re G (A Child) |
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Ms Louise Stanbury (instructed by Bell & Buxton) appeared on behalf of the 1st Respondent
Ms Deirdre Fottrell QC and Mr Luke Eaton (instructed by Ison Harrison Solicitors) appeared on behalf of the 2nd Respondent
Hearing date: 20 February 2018
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Crown Copyright ©
Lord Justice Peter Jackson :
Introduction
"The arrangements for the child to spend time with the Applicant may include the applicant's parents on two occasions per year if the Applicant so wishes."
Background
The judge's decision.
"I do accept the Guardian's analysis in terms of [Brian]'s parents joining in some of these contacts simply to give Aidan a greater sense of and understanding of his paternal lineage. I think that for this purpose, [Brian]'s parents should be able to join in the contacts on two occasions per year and should be able to send birthday and Christmas cards to [Aidan]. They should be referred to in all contacts [by their forenames]."
The grounds of appeal
(a)(i) the applicant is among the persons defined in s.10(5) as being entitled to apply, or
(a)(ii) the court has granted leave for the application to be made by someone not entitled to apply, or
(b) when the court, having considered the matters that out in s.10(9), considers that the order should be made even though there is no such application.
In developing her first argument, Ms Allman came close to arguing that in any case where the court was considering making an order under (b) in favour of a third party, it should go through the mental process required by section 10(9) before it asked and answered the welfare question. Otherwise, she said, the framework of the Act would be bypassed.
"The power given to the court by s.10(1)(b) incorporates into the Children Act the jurisdiction of the High Court in wardship to make the most appropriate order in the interests of the child without being trammelled by procedural hurdles… I do not consider that, in the absence of clear words of restriction upon the powers of the court which are to be found in other parts of the Act, s.10 should be read narrowly so as to curtail the powers of the court in the exercise of its discretion, where the welfare of the child is paramount… I think is important, however, to add some words of caution. It is obvious, and indeed has been underlined in this court, that the court's power to make an order not asked for by any party ought to be used sparingly and with caution and only after giving all parties proper time to make submissions."
That case concerned the question of whether the court was entitled to make an order in favour of a foster parent who was otherwise disqualified from being an applicant. The present case is different, and there is of course no question of the order having been made without the parties having had the opportunity to make submissions. However, the principle that the power under section 10(1)(b) should not be read narrowly is in my view of general application.
Lord Justice Moylan:
Lady Justice King