Neutral Citation no.  NIFam 10
Judgment: approved by the Court for handing down
(subject to editorial corrections)
This is an application by R W, the foster parent of M, who was placed by the Foyle Health and Social Services Trust ("the Trust") eight days after her birth on 5 April 2000 and with whom M has resided since that date. The Trust has issued interim care proceedings in relation to M and R W seeks leave to be joined as a party in these proceedings. Subsequent to that C2 application, the Trust has indicated that if an application by the uncle and aunt of M namely S and S for a residence order dated 12 April 2001 is successful, the Trust will apply for leave to withdraw their application for an interim care order. Miss Dinsmore QC, who appears on behalf of R W in this application, submits that this is a freestanding application to be made a party to the care proceedings so that R W may be heard, not only on the care proceedings application but also on the leave to withdraw the care proceedings application, the relevant care plan, contact issues arising therefrom and in general on the issue with whom this child is to live. In terms she submits that this is an application for R W to be made a party to the care proceedings in his own right and should not be considered as an attempt to abuse the process of the court by bypassing any procedural prohibition under Article 9(3) of the Children Order (Northern Ireland) 1995.
The legal principles governing joinder applications.
I consider the relevant principles governing a joinder application relevant to this case are as follows:
1. Re G (Child case: parental involvement) 1996 1 FLR is authority for the proposition that in considering an application for leave to make an application, the appropriate test should be "is there an arguable case".
2. Re G (Minors) (Interim care order) 1993 2 FLR 839 is authority for the proposition that an order joining foster parents as parties is unusual and runs contrary to the policy of the 1995 Order as reflected in Articles 9(3) and (10)(3) of the order, as the foster parents would normally be able to have their views put before the court either as witnesses or through the enquiries of the Guardian Ad Litem. It is therefore only in exceptional circumstances that such foster parents will be joined as parties. For the purposes of this judgment it is necessary to set out Article 9 of the 1995 Order:
"9. Restrictions on making Article 8 orders.
(1) No court shall make any Article 8 order, other than a residence order, with respect to a child who is in the care of an authority.
(2) No application may be made by an authority for a residence order or contact order and no court shall make such an order in favour of an authority.
(3) A person who is, or was at time within the last six months, an authority foster parent of a child may not apply for leave to apply for an Article 8 order with respect to the child unless –
(a) he has the consent of the authorities;
(b) he is a relative of the child; or
(c) the child has lived with him for at least three years precedent the application.
(10) Power of the court to make Article 8 orders.
10-(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make an Article 8 order with respect to the child if –
(a) an application of the order has been made by a person who –
(i) is entitled to apply for an Article 8 order with respect to the child; or
(ii) has obtained the leave of the court to make the application; or
(b) the court considers that the order should be made even though no application has been made.
(2) The court may also make an Article 8 order with respect to any child on the application of a person who –
(a) is entitled to apply for an Article 8 order with respect to the child; or
(b) has obtained the leave of the court to make the application.
(3) This Article is subject to the restrictions imposed by Article 9(4) the following persons are entitled to apply to the court for any Article 8 with respect to a child –
(a) any parent or guardian or the child;
(b) any person in whose favour a residence order is in force with respect to the child.
(5) The following persons are entitled to apply for a residence or contact order with respect to a child –
(a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;
(b) any person with whom the child has lived for a period of at least three years;
(c) any person who –
(i) in any case where a residence order is in force with respect of the child, has the consent of each of person in whose favour the order was made;
(ii) in any case where the child is in the care with the local authority, have the consent of that authority; or
(iii) in any case has the consent of each of those (if any) who have parental responsibility for the child.
Finally in this context Rule 4.8 of the Family Proceedings Rules (Northern Ireland) 1996 reads:
"(5) In proceedings to which this part applies the court may direct –
(a) that a person who would not otherwise be a respondent under these rules be joined as a party to the proceedings, or
(b) that a party to the proceedings cease to be a party."
Accordingly the decision whether or not to allow these foster parents to be joined as respondents is a matter placed within my discretion by these rules.
In this short application, a number of issues, including the following, were raised and argued by counsel:
(a) Mr Toner QC who appeared on behalf of the Trust and who opposed the application by the foster parents, submitted that their application amounted to an abuse of process. He argued that the foster parents were in effect seeking to be joined so that they could make representations and in terms make a case for a residence order or a contact order under Article 8 of the 1995 Order. If joined as a party their intention was to pursue the case for a residence order. He argued that they were prohibited from even making an application for leave to apply for a residence or contact order under Article 8 by the terms of Article 9(3) of the 1995 Order given that they did not have the consent of the authority, they were not a relative of the child and the child had not lived with them for at least three years preceding the application. He drew my attention to Halsbury's Laws of England 4th Edition reissue Volume 44(1) at paragraph 1476 which reads:
"Where an enactment prohibits the doing of a thing, the prohibition is taken to extend to the doing of it by indirect or roundabout means, even though not expressly referred it."
The footnote concludes:
"Where Parliament wishes to prohibit the doing of any act, it tends to concentrate in the statutory wording on the obvious and direct ways of doing it; yet if the intention is to be achieved, the prohibition must be taken to extend to indirect methods of achieving the same object even though these are not expressly mentioned."
Mr Toner argues that it is only in the hope that the foster parent might be able to achieve an Article 8 order that he wishes to be joined in these care proceedings. (See G –v- Kirklees 1993 1 FLR at page 809f). Mr O'Hara QC who appears on behalf of S & S who as I have indicated are respondents to the care application and wish to obtain a residence order in respect of the child, argues similarly that a public law avenue is being used in order to obtain a private law result. Ms McGrenera QC who appears on behalf of the birth mother, made it clear that the mother does not support the application by the foster parent. As I have indicated above, Ms Dinsmore QC argued that this was a freestanding application to be made a party to care proceedings and involved wider issues than those merely raised under Article 8.
(b) Gloucestershire County Council –v- P (1999) 2 FLR 61 is authority for the proposition that Article 10(1)(b) of the 1995 Order gives the court power to make a residence order of its own motion in the interests of the child unlimited by the restrictions in Article 9(3) and therefore can, in principle, grant a residence order to foster parents even if the foster parents were not themselves entitled to seek leave to apply for residence. The court emphasises however that such an order in respect of foster parents who cannot themselves apply would be a most exceptional order. Ms Dinsmore argued that this recent authority made it all the more imperative that cases such as a present should be regarded as exceptional so that these foster parents can be made parties to the proceedings and thereby enable the court to be fully informed before considering whether to make a residence order in their favour of its own volition. Ms McGrenara countered this by arguing that the Gloucestershire case affords the court such a large measure of flexibility unlimited by the restrictions imposed by Articles 9 and 10(3) that it underlines the absence of need to have the foster parent as a party.
(c) Mr Long QC, who appeared on behalf of the Guardian Ad Litem took no part in the legal submissions. However he did helpfully indicate that the Guardian, if the case proceeds to hearing, will consider all possible options for this child, she is aware of the wishes of the foster parents, and will consider residence with them as an option. He reminded me that the Guardian can call evidence to enable the court to make an informed decision and if that court expressed a view, for example, that it might find it helpful to hear these foster parents, then it is likely that that Guardian would facilitate the court and call the foster parent to give evidence. In terms it clearly emerged that the court will have before it the views of the noticed party and indeed perhaps even the evidence of the noticed party.
1. I have concluded that it is not appropriate for the court in the exercise of its discretion to grant leave to the current foster parent to be joined as a party to these proceedings. I do not regard this as an exceptional case with the many unusual features which were manifest in the case of Re G (Minors) (Interim Care Order) 1993 2 FLR. The features which Ms Dinsmore urged on me in this case included the presence of the child with the foster parents since she was nine days old, the circumstances of the application of the maternal aunt and uncle, and the attachment issues that are relevant in these circumstances concluding that of contact. I see nothing particularly unusual about such issues in the context of foster carers particularly, where as in the case, they are entirely without Article 9(3). To hold that the features in this case come within the type of exceptional case with unusual features adverted to in Re G would I fear open the floodgates to such applications and do a disservice to any meaningful definition of the adjective "unusual". Moreover it would I believe run counter to the clear policy of the order reflected in Articles 9(3) and 10(3) of the 1995 Order and would detract from a purposive construction of the articles.
2. There will be ample means for the views of the foster parent to be made known to the court directly as a witness or indirectly through the enquiries of the Guardian Ad Litem without the necessity of adding him formally as a party. Indeed in the light of the Gloucestershire case, the court may of its volition choose to make an Article 8 order. I think it is not without significance that in the Gloucestershire case the foster parents were not parties to the proceedings.
Accordingly, in the exercise of my discretion, I refuse the application.