Re B (A Child) (Interim Care Order: Directions)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE BUXTON |
| Judgment Date | 14 January 2002 |
| Neutral Citation | [2002] EWCA Civ 25 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 2002 |
[2002] EWCA Civ 25
Lord Justice Thorpe
Lord Justice Buxton
IN THE SUPREME COURT OF JUDICATURE PRO FORMA
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(HIS HONOUR JUDGE TYLER (Sitting as a High Court Judge)
Royal Courts of Justice
Strand
London WC2A 2LL
MR PETER JACKSON QC and MS JUDITH BUTLER (Instructed by Messrs Barnes Marsland, Margate CT9 2QT) appeared on behalf of the Appellant
MR ANDREW MCFARLANE QC and MR JOHN TUGHAN (Child Law, Cambridge CB4 1ZU) appeared on behalf of the Local Authority.
MS JANE HOYAL (Instructed by Messrs MacMillan Hamilton McCarney, Aldgate 2) appeared on behalf of the Guardian ad Litem.
The parents in this appeal have seven children. Six were removed from their daily care on an application by the local authority about a year ago. Their future is to be determined in proceedings which have been on foot over since. Kirkwood J has control of that issue. He had the case before him on 23 October 2001 when he made an order by consent for a final hearing before him on 11 February 2002 and that in the interim there be leave to the parents to disclose the papers to the Legard Family Support Centre for the purposes of ascertaining their ability to conduct an assessment of the family.
There was a meeting on 30 October 2001 to help the local authority to determine its future management internally. The minute of that meeting shows quite clearly that the local authority excluded the possibility of rehabilitation of the six children, then the subject of interim care orders. There is a side note which clearly records the consensus of the meeting that the local authority would take the same line in respect of a seventh child which the mother was then carrying. That decision was communicated to the parents the following day.
On 15 November 2001 the parties reassembled before Kirkwood J. We do not have a transcript of that hearing, but we do have a note which records Mr Peter Jackson QC raising before the judge the issues surrounding the unborn child. He specifically asked that if the local authority were to seek an order for the removal of the unborn child after birth, then the issue should be referred to Kirkwood J. On that point the judge was with Mr Jackson.
Mr Jackson then raised an anxiety that there might be an interim order, before the case could be referred to Kirkwood J, if an emergency protection order might be sought to separate the mother and baby. The note then records the judge's reaction thus:
"'I would hope that I would not be asked to remove the mother from the child on evidence predating 23 October 2001. It would require fresh evidence for such removal'.
The judge then made it quite clear that it was very important that the consultation process between the parties and their representatives and the Local Authority is ongoing."
The order of 15 November 2001 gave leave to the local authority to instruct Dr Eyre to prepare a further report by a date in December. There were then further directions, including directions for a report by Mr Maggs, an expert instructed on behalf of the parents. It was also directed that on the issue of any proceedings relating to the unborn child there should be an immediate transfer to the High Court to be listed before Kirkwood J.
The consultation process desired by the judge has by no means flourished. On 30 November 2001 the guardian ad litem wrote to the local authority proposing that a residential placement be found for the mother and baby, a proposal that was rejected by the local authority on 5 December. The local authority has, in the interim, simply adhered to the policy decision reached at the meeting on 30 October 2001 and has not engaged in any meaningful consultation with the parents in relation to their hopes and aspirations to parent the child about to be born. It would also appear that the judge's desire that Dr Eyre should meet the parents again to assess the extent to which they have evolved in reaction to the finding made by the judge at the threshold hearing on 23 October 2001, was not fulfilled.
The parties prepared for the new year in the expectation that the baby would be born on about 21 January 2002. However, the baby was born early on 30 December 2001. The local authority swiftly applied for an interim care order to implement their policy of separating mother and child.
The application came before His Honour Judge Curl on 2 January 2002. He adjourned the matter to 8 January when the case was listed before His Honour Judge Tyrer. Judge Tyrer made every possible effort to see whether the issue could be tried by Kirkwood J. However, it soon became plain that Kirkwood J was not available in the last week of the Christmas vacation. It was also apparent that the decision could not be deferred until his return for the commencement of this term since the hospital required the discharge of mother and baby, who were already overstaying their medical admission.
His Honour Judge Tyrer did his best, giving two days to hear the case on 8 and 9 January 2002. There was a significant development on 9 January in that the local authority's investigation of the possibility of a residential placement for mother and baby was exposed, during the course of cross-examination, to have proceeded on the erroneous basis that this was a teenage and inexperienced mother. Once the search was widened on the basis that this was an experienced mother, the local authority quickly identified an available resource, namely Beacon Lodge, which is in East Finchley. That is a convenient location since the Legard Centre, already authorised to carry out an assessment, is situated in Highbury. So they are in adjoining boroughs.
The guardian ad litem was extremely supportive of the proposal that mother and baby should move from hospital to Beacon Lodge. The judge was clearly optimistic that the local authority would accede to the majority view. I say the majority view because it was the view not only of the guardian and the parents, but of the judge himself, who considered it to be a sensible arrangement. The local authority sought time to consider that decision and disappointed the judge by returning at 2 pm the next day to say that they were not prepared to agree any placement at Beacon Lodge, and that they required their interim care order (which they were fully entitled to on the evidence of past abuse) with the intention of separating mother and baby and placing the baby with a foster mother in Dagenham who was not prepared to consent to parental contact in her home.
The judge clearly agonised, conceding that the local authority had the power to dictate management once an interim order was granted, and accordingly that he only had the choice of granting or refusing an interim order without imposing any terms or conditions upon the local authority in the event that the order went.
We do not have a transcript of his judgment, but we do have a full note which makes it plain that the judge was exceptionally disturbed by the outcome. So much is plain from paragraph 43 of the note which reads:
"I am satisfied with the greatest reluctance and the greatest ill will towards the [Local Authority] that I cannot make a second bad decision because they have shown me how to do it."
The judge ordered:
"1. D be placed in the interim care of the London Borough until conclusion of the hearing listed on 11 February before Kirkwood J.
2. There be maximum possible contact between the parents and D at the home of the foster parent, details to be agreed or to be referred to Judge Tyrer.
3. …. there be a pre-residential assessment of the parents by the Legard Centre.
4. Leave to disclose case papers to Dr Freedman at the Portman Clinic for the purposes of her assessment.
5. Permission to the parents to appeal.
6. There be a stay on the interim care … until noon on [the following day]."
Mr Jackson, who represented the parents in the court below, managed to get a draft notice of appeal and a fully indexed paginated core bundle to the court the following day. It was then possible for the court to arrange this hearing on the next working day thereafter. So the case has come to the court with the maximum dispatch. It may be that, had the case not proceeded as an emergency both in the court below and in this court, the preparation of the issues and the arguments directed to the court would have taken a different course.
Mr Jackson has distilled his grounds of appeal by amendment to rely upon four principal points. He says that the judge reached a conclusion that was plainly wrong in his balance of the advantages and disadvantages of removal or, alternatively, of consolidating the relationship between mother and child with professional supervision. That was the only basis upon which he fought the case in the court below.
In this court he has added a number of grounds which are perhaps more substantial. He says that the judge failed to perceive his opportunity to couple the interim care order with a direction for residence at Beacon Lodge as an additional assessment authorised under section 38(6) of the Children Act 1989; alternatively, apart from section 38(6), he submits that this court has a general jurisdiction to impose terms and conditions on the implementation of a care order. In that context he relies on decisions in this court in Re G (Minors)(Interim Care Order) [1993] 2 FLR 839 and in Re T (A Minor)(Care Order: Conditions) [1994] 2 FLR 423. Finally, under this head he suggests that the judge had the inherent jurisdiction to impose such conditions, notwithstanding the...
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