Re M (Children) (Interim Care Order: Removal)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE RICHARDS |
| Judgment Date | 03 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1594 |
| Docket Number | B4/2005/1821 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 2005 |
[2005] EWCA Civ 1594
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HHJ ELLY)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Richards
B4/2005/1821
MISS M REARDON (instructed by BARRETT AND THOMSON) appeared on behalf of the Appellant Mother
MISS S FOSTER (instructed by SLOUGH BOROUGH COUNCIL) appeared on behalf of the Local Authority
MR L COGIL (instructed by RAYAT & CO SOLICITORS) appeared on behalf of the Respondent Father
MISS GJ POSNER (instructed by MESSRS MARTIN MURRAY & ASSOCIATES) appeared on behalf of the Children's Guardian
MISS M CUDBY (instructed by ILIFFES BOOTH BENNETT) appeared on behalf of the Eldest Child's Guardian
Thursday, 3rd November 2005
The local authority issued public law care proceedings in relation to six children in May of this year. The children are all the children of their married parents. They are respectively J, 15; LA, 14; LE, 12; LU 11; P, 9 and R, 2. There was a hearing in the Family Proceedings Court on 25th May. The parents did not attend and have since asserted that they had not been notified of the hearing. That is very much in dispute and neither the judge in the County Court nor this court today can take a position on that dispute.
What is not in dispute is that the Family Proceedings Court, in the absence of the parents, made interim care orders in respect of the four youngest children on a care plan for immediate removal. I am not sufficiently familiar with the practice in the Family Proceedings Court, but I would have thought that in such circumstances, with the parents absent from the court, it would have been safer to make, what I regard as a more conventional interim care order, namely a 28-day order.
The local authority implemented the care plan in respect of R who was removed to foster parents, but they were unable to implement the care plan in relation to the other three children. Although they did their best, it proved impossible to separate these three from the home. Two refused to go and one, having been removed, absconded home.
The parents had found and instructed solicitors on the day following the hearing. There is some issue as to whether the solicitors instructed notified the local authority of the parents' intention to challenge the removal of R at the earliest opportunity open to them. The 8-week order was to expire on 20th July and on the 19th, as a result of administrative error, a letter was written by the local authority to the court saying that this was a case in which, at the Family Proceedings Court hearing, an agreement had been reached for automatic paper renewal. Accordingly the court renewed on the 20th, an error which emerged at a directions hearing on 26th July.
The case was, on that day, before HHJ Elly in the Reading County Court, there having been an upward transfer on the grounds of complexity. He took immediate steps to find two days to hear the parents' challenge. That two-day hearing took place on 2nd/3rd August. The form of the hearing is of some significance. It is recorded by the judge, in paragraph 20 of his judgment. He had a statement from two social workers and that was supplemented by oral evidence from two other social workers. He also had oral evidence from both parents and finally from the guardian.
On the morning of the hearing the guardian had filed a position statement which expressed, in very general terms, his reasons for opposing the parents' endeavours to get R back. He says that his opposition, without full assessments being completed, rested on, "… historical concerns, the parents' previous failure to cooperate with professionals and their minimisation of domestic violence and of deficiencies in their parenting skills."
In his oral evidence the guardian referred to a number of specific concerns which, in his professional judgment, justified continuing R's removal from her home. The judge, in his judgment, subsequently founded himself on those concerns expressed by the guardian for the first time in his oral evidence, and although the parents had the opportunity of cross-examination of course, they had had no notice of the points advanced and did not seek any opportunity to rebut them.
To that extent there is, in my judgment, an aspect of the two-day trial that falls somewhere short of the standard of fairness which is so important when there is at stake the removal or the retention of a child of such a young age from the family home, from parents and from siblings.
The judge's decision to continue R's retention in foster care was taken in the knowledge that, because a professional assessment was to be undertaken by the Maudsley Hospital, it would be impossible to fix the final hearing until March 2006. So he was validating an arrangement that would extend R's absence from the family from 25th May 2005, through to, at the earliest trial, March 2006. In the life of a two-year-old that is a very significant period and would inevitably impact adversely on the parents' prospects of securing R's return at the conclusion of the final hearing.
So it is not surprising to me that a notice of application for permission was filed with the court on 12th August. Unfortunately the determination of permission applications in family appeals in the long vacation is not as consistent as it would be in term time and it was not until 20th September that the papers were referred to me. I ordered an on notice hearing with appeal to follow and that is the stage that we reach today.
At the outset we gave...
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