NO:  B1/2001/1783

Neutral Citation Number: [2001] EWCA Civ 1427
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
  
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Tuesday 21st August 2001
B e f o r e :

LORD JUSTICE THORPE

and

LORD JUSTICE MAY

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APPLICATION IN K (A CHILD)

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Computer Aided Transcript of the Stenograph Notes of
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MISS C McCLAREN (instructed by Cartwright Cunningham, Haselgrove) appeared on behalf of the Father
MISS P WOOD (instructed by Herts Legal Services) appeared on behalf of the Respondent
MISS T LADAK appeared on behalf of the Guardian ad Litem

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J U D G M E N T
1.	LORD JUSTICE THORPE: This is an appeal against an order of His Honour Judge Kenny sitting in the Watford County Court on 23rd July. The proceedings concerned a little girl called S, who had been born on 29th June 2001. Immediately upon her birth the local authority applied for a care order and an interim care order, applications which came before the Dacorum Family Proceedings Court on the 2nd July.
2.	The reasons that the local authority launched immediate proceedings were to be found in the history. Sadly, the mother has a history of alcohol addiction and proceedings in the same court, in relation to S's half sister, K, had terminated on 11th April 2001 with a full care order in relation to K.
3.	On 2nd July, the applications were fully contested by, not only the mother, but also the father, Sean Keane. The magistrates rejected the local authority's application for an interim care order, making only an interim supervision order to run until 2nd August.
4.	The guardian ad litem was before the court on 2nd July, but she had only just been appointed and had no opportunity to carry out investigations. It seems that on 2nd July, she supported the local authority's resolve to appeal it and their appeal against the refusal of the interim care order was listed at risk before a judge of the High Court on 11th July 2001. As often happens with at risk listings, no judge could be found to hear the appeal and, accordingly, the parties attending agreed between themselves an order.
5.	Before looking at the order itself, it is relevant to record that the counsel for the guardian, Miss Ladak, met the guardian for the first time on 11th July and, after discussion, shifted from supporting the local authority's appeal to opposing it.
6.	The order made in the Family Division has not apparently formally been perfected but we have been provided with a manuscript of the order submitted for perfection which provides that the local authority is given permission to withdraw their notice of appeal, and secondly, consequent upon that withdrawal, the matter be transferred from the Dacorum Family Proceedings Court to the Watford County Court on the basis of the complexity and likely length of case.
7.	The parties appeared before the designated judge of the Watford County Court, Judge Connor, immediately on the following day, 12th July. The order that he made, which was with the consent of all parties, provided that the local authority's application for an interim care order should be heard on 23rd July, with a time estimate of half a day: the parents should file such further evidence as they deemed fit by the 18th, and the local authority such evidence as they deemed fit by the 20th.
8.	The order of Judge Kenny, who sat for that half day fixture, provided that an interim care order be made, for 28 days, with renewal without presence of all parties if they consented and he required the local authority to file a revised care plan within 14 days. He also provided for a directions hearing before him on 2nd August. He refused permission to appeal.
9.	The care plan, pursuant to that order, is dated 1st August and it provides for assessment and, essentially, for future management by concurrent planning, simultaneously testing the possibilities of rehabilitation and making arrangements for an adopted placement should rehabilitation fail. The plan also provides for the parents to have contact with S for one‑and‑a‑half hours on each week day.
10.	On 2nd August the judge made directions which again we have, as yet, only in manuscript. They provided for the psychiatric expert in addiction, Dr Drummond, to be instructed to report by 21st September and for there to be a hearing in the court on 12th October, with a half day time estimate, of the parents' application for a section 38(6) order for a residential assessment of mother and baby.
11.	The application for permission was submitted to this Court one day out of time but was directed in for oral hearing today on notice with appeal to follow if permission granted. At the outset we extended time and granted that permission.
12.	The skeleton argument supporting the application for permission prepared by Miss McClaren is at first sight most persuasive. Her essential point is that Parliament has provided for a single route of appeal from discretionary decisions of justices and it is to a single judge of the Family Division. What effectively happened in this case was that the local authority engineered a situation whereby their dissatisfaction with the justices' determination resulted in a successful appeal to a judge of the County Court. That, says Miss McClaren, is jurisdictionally impossible.
13.	Alternatively, she says that the decision of the justices on 2nd July was a decision that was intended to establish a management regime which would endure until the final hearing. The justices had not anticipated that there would be any substantive reconsideration on 2nd August. They allowed only half‑an‑hour for directions. Accordingly there could be no significant shift in the management regime achieved in the court of trial, whether it be the Family Proceedings Court or the County Court, unless there were some fundamental change in circumstances justifying a conclusion that the safety of the baby had become jeopardised in the care of the parents. All that had happened between 2nd July and 23rd July was that the guardian ad litem had carried out her investigations which, far from raising levels of concern, had only confirmed her opinion that S should remain with her parents.
14.	The contrary submission from Miss Wood, for the local authority, is that the arrangements made between the parties on 11th and 12th July, very plainly in reaction to the inability of the appellate court to provide a judge, were sensible arrangements which put before Judge Kenny fair and square the issue of whether or not an interim supervision order constituted sufficient protection.
15.	Whilst the opinion of the guardian remained unchanged, Judge Kenny heard further evidence from the local authority and further evidence from the parents prepared pursuant to the directions order of 12th July. He also heard live evidence from the principal social worker, who had not testified before the justices, and he had the full history of the proceedings in relation to K, as well as the expert's report, which was arguably not fully before the justices.
16.	Miss Ladak, for the guardian at litem, takes a position of neutrality. She accepts that plainly Judge Kenny would have had the jurisdiction to make the order which he did had he sat on the renewal of the interim supervision order on 2nd August. On instructions she says that the current arrangements for contact are probably the best for S, providing they are frequently reviewed to see whether they should be extended, and she says that the sort of professional assessments necessary during the concurrent planning stage can as well be carried out if S remains where she is, namely with the foster family, to whom she moved on 23rd July.
17.	In reaching a conclusion on these submissions, it is vital to keep to the fore the interests of S as the paramount consideration. This Court has to ask the question: what is best for S today, 21st August, given the fact that she has been in foster care for the last 4 weeks, seeing her parents daily through the week, and given the additional fact that there is to be a substantive review in the County Court on 12th October, if not on the next renewal of the interim care order, which will be in some 27 days time? This Court has no information or evidence upon which it could take a position in response to that primary question. It was only during the course of argument that we were given detail of the current contact arrangement and only during the course of argument that we heard from Miss Ladak what is the guardian's assessment of S's present circumstances.
18.	The conclusions that I therefore express must be read as conclusions reflecting a highly unusual state of affairs, the genesis of which has only fully emerged during the course of this hearing. Manifestly, Miss McClaren is right in her submission that, once justices have reached a discretionary conclusion, at the outcome of a contested hearing, that conclusion stands, unless and until varied by a judge of the Family Division. Equally she is right that as a matter of general practice, once justices have set the pattern that is to regulate a child's life throughout the interlocutory stages, that pattern is not to be varied without some significant change of circumstance. But it does seem to me that the attack that Miss McClaren mounts on the order of 23rd July is an attack that is heavily compromised by the orders of 11th and 12th July. If Miss McClaren wished to maintain the orthodox position, then surely she should have said, loud and clear on 11th July: we can consent to the transfer of the proceedings from the Dacorum Family Proceedings Court to the Watford County Court purely on the basis of complexity and likely length of case, but certainly not to enable you to obtain a substantive rehearing without any such having been ordered by a judge of the Family Division.
19.	Even more does it seem to me that Miss McClaren's submissions are compromised by the order which was made on the following day. Admittedly Miss McClaren could not be there on 12th July before Judge Connor, but her instructing solicitors were there, as were the solicitors instructing Miss Caldit for Sean Keane. We are informed that solicitors for the parents furnished to the court details of counsel's diaries, to ensure that the fixture of the local authority's application for an interim care order to a judge of that court should not occur on a date inconvenient to counsel for either parent.
20.	Miss McClaren says that, as a matter of principle, what statute does not permit cannot be achieved by consent. That principle is clear. But at the same time, we have to look at these developments sensibly and support pragmatism from professionals who are seeking to do their best within the family justice system to meet unfortunate eventualities, such as the inability of the Clerk of the Rules to find a judge for a case listed at risk. 
21.	In my opinion, there can be no doubt at all that there would have been clear jurisdiction in the County Court, had the application been fixed conventionally for 2nd August, which, of course, was the date necessary for the renewal of the lapsing interim care order. The fact that 23rd July was identified as an earlier date convenient to the court and to counsel in the case should not, in my opinion, found a successful submission of want of jurisdiction.
22.	Was it therefore open to Judge Kenny evidentially to reach the conclusion which he did? In my opinion, the answer to that question must be yes. There is no doubt at all that further evidence was available to him that was not available to the justices and he had the opportunity of hearing oral evidence from the principal social worker in the case.
23.	However, there remains, in my mind, some anxiety at upholding an order which separated a 4 week old baby from her mother, a breast feeding mother whose resistance was supported by the guardian ad litem. But even had I reached the conclusion that the order was not open to Judge Kenny evidentially, I would not have felt it safe to go beyond remitting the case to the County Court for retrial. Effectively there will be a review in the County Court, either on or about 20th September or, if time cannot be found, on the next renewal of the interim care order, on 12th October. Whoever sits on that day will, I hope, review what is best for this child profoundly and with a completely open mind having particular regard to the developments in the interim and not feeling in any way bound by what seemed best to Judge Kenny on 23rd July. All that said, I dismiss this appeal.
24.	LORD JUSTICE MAY: I agree.
25.	LORD JUSTICE THORPE: Are there any consequential directions sought?
26.	MISS McCLAREN: My Lord, not by me.
27.	LORD JUSTICE THORPE: Nobody needs directions to costs?
28.	MISS McCLAREN: We need a public funding assessment of this.
29.	LORD JUSTICE THORPE: Public funding assessment to all who need them.