Re K and H (Children) (Interim Care Order)

On 13 September 2006 the Hertfordshire County Council sought care orders in respect of two children: J, who is 13 years of age and M, who is 11. Their plan for the children as stated in their application was to this effect:

“We will invite the court to grant an Interim Care Order in respect of [the children] to ensure that they are not risk of significant harm while their father, [Mr K] applies for residence.

“The Local Authority also need to undertake an assessment of Mr [K's] ability to safely parent [M and J]. It was agreed, with reservations, that the children stay with [Mr K].”

It seems that there was an Interim Care Order made by the Justices and that its continuation called for a listing on the 17 November. On 10 November, the social worker in the case filed a statement in which she expressed complete satisfaction with the arrangements that Mr K was making for his two sons. The statement records that the boys are thriving in that household. The previous history is not relevant to this judgment but effectively previous care with their mother had proved unsatisfactory and it was therefore a settling in experience for them in their father's household.

It seems that there was a serious episode on 1 September when the police were involved with the father in relation to his use and possession of drugs. The local authority received the information on 25 October to the effect that the father was on bail facing serious criminal charges for money laundering, evasion of excise duty and serious drug offences. That information was confirmed to the local authority by the guardian, who had been brought into the case following the issue of the care order application.

That, however, did not deflect the local authority from filing the social worker's statement to which I have already referred. On 17 November, the matter was simply adjourned over by the Justices to the 23 November.

However, seemingly spurred by the impending hearing, on 16 November, the local authority had taken a management decision to remove the children from their father's household. On the morning of 17 November whilst the father was at court, the local authority removed the younger boy from his school. The Justices on 17 November in adjourning over to 23 November declined to make any holding order and accordingly, at the end of the day, M was returned to his father since the local authority had no lawful basis for his continuing removal.

On 22 November, the local authority filed a further statement in preparation for the hearing on the following day, and in that further statement the deponent, not the maker of the statement of 10 November, stated:

“On 16 November, the manager Jackie Whates informed me that after discussions with the guardian police and our CSM it was decided that [J and M] needed to be urgently removed and placed in foster care until plans for long term care was established. This decision was reached because there were major concerns at this time that [Mr K] was using and selling class A drugs.”

On 23 November it seems that there was a stand-off between the court and the local authority. The court was minded to make an Interim Care Order but did not wish to see the children removed. The local authority was not prepared to accept an Interim Care Order on that basis. The Justices simply transferred the case to the County Court in the knowledge that it could be listed on 28 November before HHJ Serota in Milton Keynes. Again, the Justices made no holding order and accordingly the children remained with their father, the local authority having no lawful basis for their removal.

On 28 November, the local authority's evidential case had not been augmented but a Police Constable had been asked to attend in order to contribute evidence of the police interview of the father on or following the episode on 1 September. Whilst chatting with the local authority, the officer informed them of some conversation he had had with the father outside the formal interview. That conversation aroused the local authority's concern and accordingly a statement was taken from the police officer.

The first oral evidence came from the local authority manager, Mrs Whates, and after her cross-examination the judge made it perfectly plain that he was opposed to the children's removal and believed that the proper management was an Interim Care Order which would leave the status undisturbed. He adjourned so that Mrs Whates could consult with a more senior officer. At the end of that consultation she returned to court and maintained the local authority's stand-off. Mr Hepher, who appeared for the father, sought a direction that the senior official should attend but the judge refused that application and proceeded to hear oral evidence from the police constable and from the guardian.

Now all that evidence was one way. It was directed to persuading the judge that the children's removal was necessary for their protection. Clearly, the judge had been against the local authority at the conclusion of Mrs Whates' evidence but the evidence of the police constable introduced a solid basis for concern and the judge indicated to Mr Hepher that there was material now before him that required response.

However, Mr Hepher elected not to call his client and the final oral evidence from the guardian was subsequently to prove decisive in persuading the judge to accept the local authority's application, supported as it was by the guardian, although he expressed very strong criticism of the local authority, although he further expressed despair at their attitude, and litigation stance, and although he recorded more than once that it had been for him a knife-edge decision.

However, although refusing permission to appeal, he granted a stay to enable Mr Hepher to come to this court and Mr Hepher's application for permission and a stay was dealt...