Re B (A Child) (Interim Care Order)
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Date | 2010 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Interim care order – Balancing exercise – Mother’s child by previous relationship being subjected to ill treatment at home – Child and younger half-sibling being placed into foster care – Evidence suggesting younger child also at risk of harm notwithstanding better treatment by parents – Interim care orders initially granted but application for further order opposed in relation to younger child – Judge dismissing opposed application and making interim supervision order – Whether judge plainly wrong not to make interim care order in relation to younger child – Children Act 1989, s 38.
The mother was married to RSB, the father of her two-year-old daughter, KB. They lived together with TA, her six-year-old son from a previous relationship. On 28 July 2009, concerns were expressed to the local authority about the care which TA was receiving. Upon making an unannounced visit to the family home, the social worker, HW, found TA in his bedroom in darkness. He allegedly stated that he had been there for days, believing that he was locked in his room. According to HW, he had blood on his nose and looked scared. He was immediately removed from the family home under police protection and placed into foster care. Although there was no suggestion at that time that there was any need to remove KB from her parents’ care, on 29 July they were both arrested on suspicion of committing offences of child cruelty and/or wilful neglect. KB was then placed into foster care with TA and, on 31 July, the local authority applied for a care order in respect of both children, supported by the guardian. The evidence of HW was supported by a police officer’s statement which recorded that TA’s room had been in a filthy state, containing a bed with heavy bloodstains as well as a potty designed to be used by a toddler. The officer concluded that, although the evidence revealed that KB was being treated better than her sibling, she would still be at significant risk of harm in her parents’ care. Interim care orders were initially made under s 38 of the Children Act 1989, but an application for further orders was opposed in relation to KB. The parents submitted that the difference in their treatment of the children was due to them having insufficient funds to decorate both bedrooms simultaneously. The judge hearing the application rejected that explanation and referred to the possibility that KB might also suffer harm. He held, however, that he could not make such a finding at that time and repeatedly stated that it was not his function to make findings of fact. He observed that TA was ‘being expected to live in conditions which were not appropriate for him, and which did not represent good parenting’, but
concluded that foster care pursuant to an interim care order would not be proportionate to the risk of harm to KB in her parents’ care. He accordingly dismissed the application in relation to her, instead making an interim supervision order. He refused an application on her behalf for permission to appeal, but made an interim care order under s 40(1) of the 1989 Act to enable the local authority and the guardian to apply to the Court of Appeal. On appeal they submitted, inter alia, that the judge’s performance of the ‘balancing exercise’ was flawed and that his judgment had been insufficiently reasoned. KB’s parents subsequently separated so that her return, were it to be ordered, would be to her mother’s care.
Held – (1) The judge in the instant case had failed to properly conduct the necessary balancing exercise and to explain why he had taken the course he had. By describing the treatment of TB as ‘being expected to live in conditions which were not appropriate for him, and which did not represent good parenting’, he had seriously understated the position and thus minimised the risk of harm to KB. The evidence revealed a profoundly worrying state of affairs. Although the judge had been right to state that it was not his function on such an application to make findings of fact, it was his function to review the evidence and to decide whether or not it gave him reasonable cause to believe the circumstances in respect of each child were as mentioned in s 31(2) of the 1989 Act. By stating that he was unable to make findings of fact on the evidence available, he had shut his eyes to the seriousness of what had been disclosed. Furthermore, he had failed to give cogent reasons for departing from the guardian’s recommendation. In combination, those factors vitiated his judgment and enabled the court to exercise its discretion afresh.
(2) In the circumstances, KB’s safety, using that word in a broad sense to include her psychological welfare, had demanded her immediate removal from her parents’ care; there had been ample material (not least the views of the police) which warranted that course of action. Whilst in due course, if both children were not finally returned to the care of their mother, they might go their separate ways, KB’s best interests were for the time being better served by them being together in the same, safe placement than by KB being placed with their mother whilst TA remained in foster care. It followed that the judge had been plainly wrong not to make an interim care order in relation to KB; Re L-A (children)[2009] EWCA Civ 822 considered.
Cases referred to in judgmentsG (Minors) (Interim Care Order), Re[1993] 2 FCR 557, [1993] 2 FLR 839, CA.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647, [1985] FLR 894, HL; affg [1985] FLR 70.
H (a child) (interim care order) Re,[2002] EWCA Civ 1932, [2003] 1 FCR 350.
K and H, Re[2006] EWCA Civ 1898, [2007] 1 FLR 2043.
L (Care Proceedings: Removal of Child), Re [2008] 1 FLR 575.
L-A (children), Re[2009] EWCA Civ 822.
M (A Minor) (Order Pending Appeal), Re[1994] 1 FCR 1, [1994] 1 FLR 54, CA.
M (children) (interim care order), Re[2005] EWCA Civ 1594, [2006] 1 FCR 303, [2006] 1 FLR 1043.
AppealThe local authority and the guardian of KB, a two-year-old child, sought permission to appeal against the dismissal by Judge Donald Hamilton, sitting in the Reading County Court on 4 September 2009, of the local authority’s application for an interim care order under s 38 of the Children Act 1989. The judge had refused permission to appeal but made an interim care order under s 40(1) of the 1989 Act until 14 September 2009 to enable them to apply to the Court of Appeal for permission to appeal. On 11 September 2009, Wilson LJ granted a stay of the judge’s original order and directed that the s 40(1) order be varied to the effect that it would only expire on final refusal of permission to appeal or, if granted, on determination of the appeal. On 12 October 2009, Wilson LJ adjourned the permission application for consideration at an oral hearing on notice on 28 October, with the appeal to follow if permission was granted. The facts are set out in the judgment of Wall LJ.
David Bedingfield for KB.
Henry Setright QC and Rebecca Brown for the local authority.
Sara Granshaw for the mother.
Stuart Fuller for the father.
WALL LJ(giving the first judgment at the invitation of Thorpe LJ).
Introduction (1) the applications[1] These are applications by both the guardian of a young child KB and by the local authority which has taken care proceedings in relation to her and her half brother TA, for permission to appeal against the dismissal by Judge Donald Hamilton sitting in the Reading County Court on 4 September 2009 of the local authority’s application for an interim care order under s 38 of the Children Act 1989 (the Act) in relation to KB. The judge made an interim supervision order in relation to KB and an interim care order in relation to TA. The latter was not disputed in the court below and is not the matter of challenge in this court.
[2] The judge refused an application made on behalf of KB for permission to appeal, but made an interim care order under s 40(1) of the Act until 14 September 2009 to enable the guardian and/or the local authority to apply for permission to appeal to this court.
[3] On 11 September 2009, Wilson LJ granted a stay of the judge’s order, and directed that the order made by the judge under s 40(1) of the Act be varied to the effect that it would expire only on final refusal of permission to appeal or, if granted, on determination of the appeal.
[4] On 12 October 2009, having read a transcript of the judge’s judgment, Wilson LJ adjourned the two permission applications for consideration at an oral hearing on notice on 28 October 2009, with the appeals to follow if permission was granted. We heard argument on that date and reserved judgment.
Introduction (2): General Comments[5] Before I deal with the substances of the applications, I would like to make a number of points about the circuit bench and family proceedings in the county court, from which, of course, these applications originates. I begin in this way because I have reached the clear conclusion that we should; (1) grant permission to appeal; (2) allow the two consequential appeals; and (3) direct that KB should be made the subject of an interim care order in favour of the local authority. As the case is ongoing, I also think we should impose reporting restrictions, and this judgment will be written anonymously.
[6] I would not want it to be thought that those of us who sit in this court are unaware of the enormous pressures on circuit judges at the present time. It is not for nothing that the circuit bench has been described as the engine room of the family justice system. Due to the shortage of High Court judges of the Family Division, the Circuit Bench deals with the overwhelming majority of difficult care and private law cases. Any care proceedings which are complex or lengthy are immediately transferred up from the family proceedings court to the county court. Once in the county court the application has to be case managed, kept within appropriate bounds and time-tabled to a final hearing. Large amounts...
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