Re LA (Care: Chronic Neglect)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Maurice Kay |
| Judgment Date | 14 July 2009 |
| Neutral Citation | [2009] EWCA Civ 822 |
| Docket Number | Case No: B4/2009/1297 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2009 |
[2009] EWCA Civ 822
(HIS HONOUR JUDGE SLEEMAN)
Before: Lord Justice Thorpe
and
Lord Justice Maurice Kay
Case No: B4/2009/1297
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION, PRINCIPAL REGISTRY
Mr J Baker QC (instructed by Coventry City Council Legal Department) appeared on behalf of the Applicant, the local authority
Ms F Judd QC and Ms M Grundy (instructed by Wilsons Solicitors) appeared on behalf of the First Respondent, the mother
Ms J Moseley (instructed by Penmans Solicitors) appeared on behalf of the Third to Eighth Respondents, the children, by their Children's Guardian
Lord Justice Thorpe:
On 8 June 2009 HHJ Cleary sitting in the Coventry County Court refused to sanction an application by the local authority for the swift removal of four children from the home of their mother. The children are aged respectively five, two and twins of about 16 months.
The care proceedings had been initiated by the local authority on the grounds of chronic neglect. There had been a number of directions hearings with a view to a formal hearing on 27 July 2009. However, on 7 May a social worker visiting the mother and children in the home found a state of affairs that suggested that chronic neglect was deteriorating into something more serious, which, even in the short term, placed the children in jeopardy. Accordingly the local authority decided to seek the court's leave to remove the four children into foster care pending the final hearing. There were immediate discussions as to whether further assessment necessarily preceded the fixture. In March there had been a suggestion that there should be a further psychological assessment of the mother but she at that time was resistant, and accordingly at the directions hearing HHJ Bellamy had decided not to direct such an assessment. But following the incident of 7 May it seems that the mother reconsidered her position and offered her assent provided that was a report also from an independent social worker. That led to the recognition that the commissioning of these further reports would necessitate the vacation of the fixture on 27 July. The case was then reprogrammed to a seven-day fixture which unfortunately the court could not accommodate before 10 February 2010.
So when the judge sat in early June he contemplated an eight month interim during which he had either to grant the application and break up the family or leave things as they were for the deployment of the full case on each side. The hearing before HHJ Cleary was spread over four days, although it is agreed that only nine hours of court time was devoted to this case during that period because of other listings. The local authority's application was supported by the children's guardian, but the judge indicated at the conclusion of submission that he was not minded to accede to the local authority's application but felt that there should be a sharing of parental responsibility which could be achieved by the local authority's amendment of the care plan to acknowledge that the children should remain in the family home but under the protection of an interim care order. That was the outcome favoured by the judge and that was the outcome that emerged from his judgment.
With the support of the guardian the local authority applied for permission to appeal, which was granted by Wilson LJ on 18 June. In granting permission he fixed the appeal for today's date. The local authority is represented by Mr Jonathan Baker QC. He was to have led Mr Miller who appeared below, but Mr Miller cannot be with us today so Mr Baker has presented the case on his own. The mother's opposition has been presented by Ms Judd QC, leading Ms Grundy, who appeared below, as did Ms Moseley, who represents the guardian today.
Mr Baker's fundamental submission, which is fully supported by Ms Moseley, is that the judge misdirected himself in law in refusing the application. The judgment below is characteristically clear and thorough from a judge who has very great expertise and experience in this field. In directing himself as to the law he first of all considered sections 31 and 38 of the Children Act 1989 which provide the essential threshold that an applicant must cross before successfully completing an application for an interim care order. In a sense that was no more than a prelude, because on the mother's behalf it was conceded that the home circumstances as discovered on 7 May and on earlier occasions were sufficient to take the local authority over the threshold. Accordingly the judge's task was to consider whether the order sought by the local authority was within the principles to be found in section 1 of the Children Act 1989, and particularly the paramountcy of the child's welfare, the principle that delay is likely to prejudice welfare, the welfare checklist in section 1(3) and the provision that no order should be made unless the making of an order would be better for the child than making no order at all.
The judge did not consider those provisions or recite them independently, but having set out the statutory provisions in section 31 and 38 went on to...
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