Re G (A Child) (Interim care order: Residential assessment)
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 2004 |
| Neutral Citation | [2004] EWCA Civ 24 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2003/2310 |
| Date | 27 January 2004 |
[2004] EWCA Civ 24
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE JOHNSON)
Royal Courts of Justice
Strand,
London WC2A 2LL
The President of The Family Division
Lord Justice Thorpe and
Lord Justice Latham
B1/2003/2310
JONATHAN COHEN QC and CHARLES HALE (instructed by Messrs Hillman Smart & Spicer of Eastbourne BN21 4RX) appeared for the appellant mother.
ANDREW McFARLANE QC and GEMMA TAYLOR (instructed by Kent County Council Legal Services) appeared for the respondent county council.
THORPE LJ:
This appeal focuses on the court's jurisdiction to order an assessment under section 38(6) of the Children Act 1989 and upon the exercise of the judicial discretion once jurisdiction is established. Upon the outcome of the legal issues hangs the future of an eight month old baby, E, born on 8 May 2003. Since her birth she has been looked after by her mother and is still breast-fed. She is represented by her guardian ad litem who, unfortunately, has not been represented on this difficult appeal. E's parents are the appellants against an order made by Johnson J on 24 October 2003 and the Kent County Council are respondents to the appeal. This is the judgment of the Court.
The History
The mother is 24 years of age. Her first child, J, was born on 13 September 1996. Her second child R was born on 27 December 1998. R died on 13 June 1999 as a result of severe multiple injuries. Care proceedings were initiated to determine J's future.
On 19 April 2000 at a preliminary hearing Hogg J concluded that it was impossible to exculpate either the mother or R's father from responsibility for R's death. Johnson J conducted the disposal hearing on 31 July 2000. He made a care order to the East Sussex County Council describing the case as being 'as difficult as any I have tried'.
The mother's appeal to this court was dismissed on 29 November 2000. In the course of judgment it was noted by the Court of Appeal that the case was extremely difficult and that the mother should have a real and strong continuing relationship with J. That has transpired and indeed the mother is currently considering applying for an order returning J to her care.
The appellants commenced their relationship in August 2001 and began to cohabit in February 2002. At the initial child protection conference on 19 March 2003 in anticipation of E's birth the decision was that E should not be discharged from hospital with the appellants and that an assessment was required in a safe and secure setting of the appellant's ability to care for a baby. The local authority's application for an interim care order was issued on 13 May 2003. The attached care plan proposed foster care until a permanent alternative placement could be found for E. Accordingly on 19 May the parents applied under section 38(6) for an order for residential assessment. Their target was the Cassel Hospital. They attended for outpatient assessment on 24 May. The Cassel's outpatient report of 28 May recommended their admission to the family unit.
On 12 June 2003 His Honour Judge Viljoen ordered a six—eight week inpatient assessment to commence on 23 June. He further directed a report from the Cassel to be filed by 8 August and a review of the placement before Johnson J on 12 August. By the same order the local authority obtained leave to instruct Dr Van Rooyen to report on both parents by 31 July.
In the event the hearing before Johnson J took place on 14 August. He concluded that the Cassel's written report of 8 August did not demonstrate that the hospital had sufficiently tackled the issues defined in the joint letter of instruction dated 18 June. Accordingly he directed a further six weeks of assessment to be reviewed by him on 2 October.
In preparation for that review, Dr Van Rooyen filed a report on 19 September recommending a further extension of the family's stay at the Cassel in the light of significant change in the mother. On 26 September Dr Kennedy filed his full report, the gist of which was that the mother had come a long way but had still a long way to go. He was of the opinion that it was essential to extend the family's residence.
On 1 October the local authority amended their care plan and further amendments have been offered since. In short the local authority's present proposal is that E should live with her paternal grandmother and her father and should have two visits a day from her mother, each of up to three hours duration. The local authority would arrange for once weekly psychotherapy for the mother with a view to ultimate rehabilitation.
The hearing before Johnson J on 2 October resulted in an order which has a considerable bearing on the present appeal. Accordingly we set out the recital and the first nine paragraphs of the order in full:
"And upon the applicants, Kent County Council agreeing in principle that it would be appropriate for the family to undergo treatment at the Cassel Hospital with a view to implementing a rehabilitation plan in the community in four months, if appropriate.
But being unable today to commit to any funding for such treatment;
IT IS ORDERED THAT;
1. EG to be made the subject of an interim care order to Kent County Council for four weeks, until 30 October 2003.
2. The family are to remain at the Cassel Hospital until the adjourned hearing.
3. The Cassel Hospital do provide a schedule of projected costs for the proposed treatment by 6 October 2003.
4. (a) If the funding for the Cassel is not agreed, West Kent NHS and Social Care Trust be invited to file a statement setting out the basis of their decision about funding by 15 October 2003.
(b) The author of the statement be invited to attend court on 22 October 2003.
5. The applicant local authority do file a statement recording funding an alternative resources by 17 October.
6. Any further evidence to be filed not later than 24 hours before the next hearing.
7. The proceedings case No. FD02C00374 concerning JG and those dealing with EG No. FD03C00338 be listed together for all further hearings.
8. The matter be listed for directions on 22 October 2003 before Johnson J.
9. The matter be listed for hearing on 21 November 2003 before Johnson J, time estimate one day."
The statement directed by paragraph 4 of the order was completed on 17 October. The statement directed by paragraph 5 of the order was handed to the other parties at approximately 1050 on 22 October.
On that day the local authority understood that they attended only for directions. That is their explanation for the lateness and the sparseness of the financial evidence that they circulated at the hearing. However Johnson J, who was applications judge and whose list was otherwise light, proceeded to determine the issues then and there rather than on 21 November. At the conclusion of the oral evidence on 22 October he reserved, delivering his considered judgment on 24 October. He held that he had no jurisdiction to extend the S 38(6) assessment. He added that even had he found jurisdiction he would not in his discretion have exercised it. Accordingly he continued the interim care order and dismissed the parents' application under S 38(6) .
Although he refused leave to appeal not only to the parents but also to E's guardian ad litem, he did order that E was not to be removed from the Cassel Hospital before noon on 29 October to enable applications to be made to this court.
Paragraph 5 of his order provided that transcripts of his judgments of 12 August and 24 October 2003 'shall be prepared urgently from public funds'. It is a matter of concern that almost a month later we have no transcript of his judgment, although we have a transcript of the evidence of Dr Kennedy given on 22 October.
The Appeal
The parents' application to this court resulted in the grant of permission to appeal and of a stay until determination of the appeal fixed for 20 November. That order was made on 28 October on the application of the mother.
Mr Peter Jackson QC who represented the father below has very properly sought to avoid unnecessary representation. Accordingly he has filed a written skeleton argument in support of the appeal.
The position of the guardian is harder to comprehend. The guardian had supported the parents' submissions on the 22 October and had applied for permission to appeal on 24 October. However on 18 November the guardian's solicitors wrote to this court stating that 'the guardian is minded to remain neutral on the appeal both as to facts and law'. The letter continued that in those circumstances the guardian proposed not to be represented, a proposal which the court accepted. We find it hard to understand the shift in the guardian's position, given that there had been no material change of circumstance between 22 October and 18 November. Whilst efforts by guardians to save costs on appeals are much to be encouraged, in cases where the parent is the appellant and the guardian is also minded to appeal, separate representation for the guardian needs little justification. Indeed it may be helpful to the court to have the guardian as the lead appellant. In the event Mr Crawley, who had appeared before Johnson J on 22 October, attended the appeal hearing unrobed as an interested observer. Having heard the exchanges between the court and counsel throughout the course of the morning, he appeared before us robed in the afternoon to make a number of pertinent observations and submissions for which the court is extremely grateful. The tenor of his submissions supported the mother's appeal.
That had been advanced by Mr Cohen...
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