S v Merton London Borough
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Family Division |
WARD, J
Care proceedings – application for interim care order – application opposed – no statements of evidence or other documents filed – magistrates refusing to receive evidence – whether decision of court could stand.
Interim care order – improper for court to make order on opposed application without evidence.
Procedure – care proceedings – application for interim care order – no statements of documents filed – magistrates refusing to hear evidence – whether decision of court could stand.
Over a period of time the local authority had been concerned about the development of two children, a boy now aged 7 and a girl now aged 5. In June 1993 the children's parents agreed to a period of assessment, initially for a month, and the children were accommodated with foster parents. At the end of a month the local authority wished to extend the period of assessment but the parents did not agree. Therefore, the local authority applied to a family proceedings court for interim care orders.
The matter first came before the court on 19 July 1993. No statements had been filed before the hearing pursuant to r 17 of the Family Proceedings Courts (Children Act 1989) Rules 1991. At the hearing the magistrates refused to read written evidence or to hear oral evidence, and were prepared to admit no more than representations from the solicitor for the local authority and the solicitor for the parents. Having heard the solicitors' representations, the magistrates made interim care orders.
The parents appealed.
Held – allowing the appeal: In proceedings under the Children Act 1989 it was provided by r 17 of the Family Proceedings Courts (Children Act 1989) Rules 1991 that a party should file (a) written statements of the oral evidence the party intended to adduce and (b) copies of documents upon which the party intended to rely. The rule provided that the documents should be filed before the hearing. By r 21 of the 1991 Rules the magistrates who would be hearing the case were required to read the documents filed under r 17. The Rules clearly contemplated that evidence should be adduced. In this case the magistrates had erred in the most fundamental way possible in that they had made orders on an opposed application without any evidence at all. The orders would, therefore, be quashed.
Statutory provisions referred to:Children Act 1989, ss 38 and 94.
Children (Admissibility of Evidence) Order 1991.
Family Proceedings Courts (Children Act 1989) Rules 1991, rr 17 and 21.
Family Proceedings Rules 1991, rr 1.3 and 4.22.
RSC Ord 55.
Cases referred to in judgment:M v Hampshire County Council[1993] 1 FCR 23; sub nom Hampshire County Council v S [1993] Fam 158; [1993] 1 All ER 944.
R v Birmingham City Juvenile Court, ex parte Birmingham City Council [1988] FCR 175; [1988] 1 WLR 337; [1988] 1 All ER 683.
R v Croydon Juvenile Court, ex parte N (1987) 151 JP 523.
AppealAppeal from Wimbledon family proceedings court.
Constance Whippman for the parents.
Jane Hill for the local authority.
Christopher Wood for the children and guardian ad litem.
MR JUSTICE WARD.This is an appeal against the order of the Wimbledon magistrates' court made on 19 July 1993 when the court ordered that two children, a boy born on 11 May 1986 and a girl born on 14 May 1988, be placed in the interim care of the London Borough of Merton. The matter was then adjourned to 13 August for a full hearing of the application for their care order.
The appeal is brought by the parents of those children. They complain that the justices erred in the most fundamental way possible, in that they made an order without receiving one word of evidence in support of the application,
notwithstanding the challenge being made by the parents to the making of any interim order at all.
The material facts, in so far as they are relevant for this part of the appeal, are that the local authority had, over a period of some time, expressed concern about the development of the children concerned. When, on 10 June the school noticed that the boy was bruised...
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