Re Ch (A Minor) (Care or Interim Order)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Year | 1998 |
| Date | 1998 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Child seriously injured by mother – Local authority applying for care order with possibility of rehabilitation with mother – Guardian ad litem recommending adoption – After consultation with advocates in his room judge agreeing to make care order on local authority promising to appoint child expert and to reconsider placement when expert’s opinion available – Whether care order should be made when relevant expert evidence not before court.
Within three months of his birth the child suffered serious non-accidental injuries caused by his mother. Care proceedings were brought and at the end of the first day of the hearing the judge was intensely worried by the sharp divergence of opinion as to the placement of the child: the local authority cautiously favouring rehabilitation whereas the guardian ad litem believed that adoption was the realistic way to promote the child’s welfare. On the second day of the hearing the judge saw the advocates in his room which led to the development, agreed by the parties but not the guardian ad litem, that a care order would be made in return for the local authority’s promise to appoint a child expert and to reconsider the child’s placement when the opinion of that expert was available. The judge rejected an application by counsel for the guardian ad litem to call evidence and made a care order on the understanding that a clinical child psychologist should be instructed by letter to be agreed by all the parties. However, the local authority and the guardian ad litem could not agree the terms of instruction to the child psychologist, who was eventually instructed by the authority. Although the authority’s approach in the care proceedings was that the mother had caused the child’s injuries intentionally or recklessly, the psychologist erroneously assumed that the injuries were caused by neglect. The guardian ad litem appealed from the care order.
Held — The litigation process had to be duly considered before the judge approached his task of scrutinising the care plan and satisfied himself that the plan was in the child’s best interests. The fact that a care order was the inevitable eventual outcome should not deflect the judge from using the litigation process to its maximum effect. Where the preparation of expert evidence by the parties resulted in an obvious deficiency and where the judge thereby felt inhibited or handicapped in the performance of the judicial task, his duty was to ensure that all the necessary evidence was before the court as a prelude to any decision taking. In the present case the compromise was not satisfactory. Obvious deficiencies were, first, that the instruction of the expert
was to be preceded by a care order, the effect of which was to terminate the professional role of the guardian ad litem. Secondly, the hazard of continuing to garner expert evidence without court control had been illustrated by the dispute between the guardian ad litem and the local authority as to the terms of the letter of instruction to the expert. Thirdly, the expert had adopted an erroneous fundamental premise which would have to be corrected. The appeal would be allowed, the care order would be quashed and an interim care order substituted.
Per curiam. It is undesirable that judges should encourage or permit significant exchanges unrecorded in the privacy of the judge’s room. Children Act proceedings invariably take place in chambers and if it is thought desirable by the advocates or the judge that exchanges should take place without the clients being present, then those exchanges can be in the court room where they would be fully recorded and available to transcription.
Cases referred to in judgmentA (a minor) (care proceedings), Re[1993] 1 FCR 164.
C (a minor) (care proceedings), Re[1992] 2 FCR 341.
E (SA) (a minor) (wardship: court’s duty), Re [1984] 1 All ER 289, [1984] 1 WLR 156, HL.
KDT (a minor) (care order: conditions), Re[1994] 2 FCR 721, CA.
L (minors) (care proceedings: appeal), Re[1996] 2 FCR 352, CA.
R (minors) (care proceedings: care plan), Re[1994] 2 FCR 136.
S and D (child case: powers of court), Re[1995] 1 FCR 626, CA.
AppealThe guardian ad litem appealed from the decision of Judge Allweis to make a care order in respect of a child who had been seriously injured by his mother on the understanding that an expert would be consulted as to the child’s placement. The facts are set out in the judgment of Thorpe LJ.
Charles Bloom QC and Bernard Wallwork (instructed by Fieldings Porter) for the guardian ad litem.
Lindsey Kushner QC and Yvonne Coppel (instructed by the local authority solicitor) for the local authority.
Caroline Swift QC and Gillian Irving (instructed by Adam F Greenhalgh & Co) for the mother.
Lesley Newton (instructed by Cyril Morris Arkwright) for the father.
THORPE LJ(giving the first judgment at the invitation of Kennedy LJ). This is an appeal brought by the guardian ad litem against a care order made by Judge Allweis on 2 July 1996 sitting in Manchester. On 30 July he refused leave to appeal, but leave was granted by this court on 9 October.
The case concerned a young couple and their only child, J, born on 29 June 1995. The mother is now 22 years of age and the father 28 years. They met in 1992 and began to cohabit in May 1995. By August 1995 there were clear signs
of non-accidental injury to J. On 25 September J was admitted to hospital with serious injuries. On 28 September his mother was charged with four counts of grievous bodily harm. On 6 October the local authority commenced Children Act proceedings (see the Children Act 1989). On 13 October J was discharged to short-term foster parents where he remains. In the Spring of 1996 the parents separated for a time and then reunited.
The care proceedings were fixed for hearing on 1 July and were preceded by a pre-trial review some ten days before the fixture. The hearing before Judge Allweis stretched over two days and it was a muddled hearing, as I shall demonstrate. At its conclusion there was a consensus that a clinical child psychologist named Dr Gulliford...
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