IN THE MATTER OF v RE B (A CHILD) [2002] EWCA Civ 25

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(HIS HONOUR JUDGE TYLER (Sitting as a High Court Judge)
[2002] EWCA Civ 25Case No PRO FORMAVenue Royal Courts of Justice, Strand, London WC2A 2LL, Monday 14 January 2002
Between
IN THE MATTER OFRE B (A CHILD)
Before
Lord Justice ThorpeLord Justice BuxtonMR PETER JACKSON QC and MS JUDITH BUTLER (Instructed by Messrs Barnes Marsland, Margate CT9 2QT)appeared on behalf of the AppellantMR ANDREW MCFARLANE QC and MR JOHN TUGHAN (Child Law, Cambridge CB4 1ZU) appeared on behalf of the Local Authority.MS JANE HOYAL (Instructed by Messrs MacMillan Hamilton McCarney, Aldgate 2)appeared on behalf of the Guardian ad Litem.Date 14 January 2002

LORD JUSTICE THORPE:

The

[1]parents in this appeal have seven children. Six were removed from their daily care on an application by the local authority about a year ago. Their future is to be determined in proceedings which have been on foot over since. Kirkwood J has control of that issue. He had the case before him on 23 October 2001 when he made an order by consent for a final hearing before him on 11 February 2002 and that in the interim there be leave to the parents to disclose the papers to the Legard Family Support Centre for the purposes of ascertaining their ability to conduct an assessment of the family.[2]There was a meeting on 30 October 2001 to help the local authority to determine its future management internally. The minute of that meeting shows quite clearly that the local authority excluded the possibility of rehabilitation of the six children, then the subject of interim care orders. There is a side note which clearly records the consensus of the meeting that the local authority would take the same line in respect of a seventh child which the mother was then carrying. That decision was communicated to the parents the following day.[3]On 15 November 2001 the parties reassembled before Kirkwood J. We do not have a transcript of that hearing, but we do have a note which records Mr Peter Jackson QC raising before the judge the issues surrounding the unborn child. He specifically asked that if the local authority were to seek an order for the removal of the unborn child after birth, then the issue should be referred to Kirkwood J. On that point the judge was with Mr Jackson.[4]Mr Jackson then raised an anxiety that there might be an interim order, before the case could be referred to Kirkwood J, if an emergency protection order might be sought to separate the mother and baby. The note then records the judge's reaction thus:
"'I would hope that I would not be asked to remove the mother from the child on evidence predating 23 October 2001. It would require fresh evidence for such removal'. The judge then made it quite clear that it was very important that the consultation process between the parties and their representatives and the Local Authority is ongoing."
[5]The order of 15 November 2001 gave leave to the local authority to instruct Dr Eyre to prepare a further report by a date in December. There were then further directions, including directions for a report by Mr Maggs, an expert instructed on behalf of the parents. It was also directed that on the issue of any proceedings relating to the unborn child there should be an immediate transfer to the High Court to be listed before Kirkwood J.[6]The consultation process desired by the judge has by no means flourished. On 30 November 2001 the guardian ad litem wrote to the local authority proposing that a residential placement be found for the mother and baby, a proposal that was rejected by the local authority on 5 December. The local authority has, in the interim, simply adhered to the policy decision reached at the meeting on 30 October 2001 and has not engaged in any meaningful consultation with the parents in relation to their hopes and aspirations to parent the child about to be born. It would also appear that the judge's desire that Dr Eyre should meet the parents again to assess the extent to which they have evolved in reaction to the finding made by the judge at the threshold hearing on 23 October 2001, was not fulfilled.[7]The parties prepared for the new year in the expectation that the baby would be born on about 21 January 2002. However, the baby was born early on 30 December 2001. The local authority swiftly applied for an interim care order to implement their policy of separating mother and child.[8]The application came before His Honour Judge Curl on 2 January 2002. He adjourned the matter to 8 January when the case was listed before His Honour Judge Tyrer. Judge Tyrer made every possible effort to see whether the issue could be tried by Kirkwood J. However, it soon became plain that Kirkwood J was not available in the last week of the Christmas vacation. It was also apparent that the decision could not be deferred until his return for the commencement of this term since the hospital required the discharge of mother and baby, who were already overstaying their medical admission.[9]His Honour Judge Tyrer did his best, giving two days to hear the case on 8 and 9 January 2002. There was a significant development on 9 January in that the local authority's investigation of the possibility of a residential placement for mother and baby was exposed, during the course of cross-examination, to have proceeded on the erroneous basis that this was a teenage and inexperienced mother. Once the search was widened on the basis that this was an experienced mother, the local authority quickly identified an available resource, namely Beacon Lodge, which is in East Finchley. That is a convenient location since the Legard Centre, already authorised to carry out an assessment, is situated in Highbury. So they are in adjoining boroughs.[10]The guardian ad litem was extremely supportive of the proposal that mother and baby should move from hospital to Beacon Lodge. The judge was clearly optimistic that the local authority would accede to the majority view. I say the majority view because it was the view not only of the guardian and the parents, but of the judge himself, who considered it to be a sensible arrangement. The local authority sought time to consider that decision and disappointed the judge by returning at 2 pm the next day to say that they were not prepared to agree any placement at Beacon Lodge, and that they required their interim care order (which they were fully entitled to on the evidence of past abuse) with the intention of separating mother and baby and placing the baby with a foster mother in Dagenham who was not prepared to consent to parental contact in her home.[11]The judge clearly agonised, conceding that the local authority had the power to dictate management once an interim order was granted, and accordingly that he only had the choice of granting or refusing an interim order without imposing any terms or conditions upon the local authority in the event that the order went.[12]We do not have a transcript of his judgment, but we do have a full note which makes it plain that the judge was exceptionally disturbed by the outcome. So much is plain from paragraph 43 of the note which reads:
"I am satisfied with the greatest reluctance and the greatest ill will towards the [Local Authority] that I cannot make a second bad decision because they have shown me how to do it."

The judge ordered:

" 1. D be placed in the interim care of the London Borough until conclusion of the hearing listed on 11 February before Kirkwood J. 2. There be maximum possible contact between the parents and D at the home of the foster parent, details to be agreed or to be referred to Judge Tyrer. 3. .... there be a pre-residential assessment of the parents by the Legard Centre. 4. Leave to disclose case papers to Dr Freedman at the Portman Clinic for the purposes of her assessment. 5. Permission to the parents to appeal. 6. There be a stay on the interim care ... until noon on [the following day]."
[14]Mr Jackson, who represented the parents in the court below, managed to get a draft notice of appeal and a fully indexed paginated core bundle to the court the following day. It was then possible for the court to arrange this hearing on the next working day thereafter. So the case has come to the court with the maximum dispatch. It may be that, had the case not proceeded as an emergency both in the court below and in this court, the preparation of the issues and the arguments directed to the court would have taken a different course.[15]Mr Jackson has distilled his grounds of appeal by amendment to rely upon four principal points. He says that the judge reached a conclusion that was plainly wrong in his balance of the advantages and disadvantages of removal or, alternatively, of consolidating the relationship between mother and child with professional supervision. That was the only basis upon which he fought the case in the court below.[16]In this court he has added a number of grounds which are perhaps more substantial. He says that the judge failed to perceive his opportunity to couple the interim care order with a direction for residence at Beacon Lodge as an additional assessment authorised under section 38(6) of the Children Act 1989; alternatively, apart from section 38(6), he submits that this court has a general jurisdiction to impose terms and conditions on the implementation of a care order. In that context he relies on decisions in this court in Re G (Minors)(Interim Care Order) [1993] 2 FLR 839 and in Re T (A Minor)(Care[17]His third and fourth grounds invoke the Human Rights Act 1998 seeking a declaration of incompatibility, alternatively submitting that under section 8(1) of the Human Rights Act 1998 the judge might have made an order directing the placement of D and his mother at Beacon Lodge.[18]His submissions are, in the main, supported by Miss Hoyal for the guardian ad litem. Miss Hoyal supported the submission that the judge had jurisdiction under section 38(6). Importantly, she informs the court that the guardian will not be in a position to make a recommendation as to whether D should be temporarily or permanently removed from his mother until the guardian is in possession of the following:(a) the report from the Legard Centre on the completion of their pre-residential assessment;(b) the report from Dr Freedman;(c) the evidence in respect of the mother's performance at Beacon Lodge; and(d) all the remaining evidence.[19]Mr McFarlane QC has responded with his customary economy and skill. He emphasises that section 31(11) of the statute defines care orders as including interim care orders. He moves to stress section 33 which deals with the effect of care orders; subsection (1) making it perfectly plain that where a care order is made in respect of a child, it should be the duty of the local authority to receive the child and to keep him in care while the order remains in force. Subsection (3) makes it plain that, during the course of the care order, the local authority shall have parental responsibility and the power to determine the extent to which a parent or guardian of the child may meet his parental responsibility for him. Thus, says Mr McFarlane, it is apparent that the court has no jurisdiction to direct the local authority's management of the child in interim care, save and except as may be justified by section 38(6).[20]In relation to the two cases relied upon by Mr Jackson, Mr McFarlane responds by reliance on the decision of the House of Lords in the case of Re C (A Minor) (Interim care[21]Not only do we have submissions today which were not addressed to the judge, we also have information which was not available to him. We have before us information about the Legard Centre in a letter which they wrote on 14 December 2001 describing the work that they do, particularly in relation to these children. There is a supplementary letter of 3 January 2002 in which they particularly considered the case of a newborn baby. They explained that the unit had not been prepared to offer the parents an immediate residential placement in view of the history. They would not go beyond offering a pre-residential assessment lasting some six weeks, which would involve a number of individual couple sessions with the parents and observing contact on two or three occasions. The letter went on to state what was desired in relation to contact between parents and a new baby. The letter said:
"In our experience the crucial issue is maintaining a level of contact sufficient to ensure that attachment and bonding is promoted. Reflecting on past cases in which Legard have been involved, we find that bonding and attachment is promoted or maintained when there is contact at least 5 times a week for around 5 hours per day and when the parents are given the opportunity to be involved in the day to dare care of the child. So, for example, the parents are 'active' in the care of the child and feed and bath the child in an appropriate setting."
[22]My Lord pointed out that the view as to the desirable level of contact to ensure attachment did not necessarily bear on their requirements to complete their pre-residential assessment. Accordingly, over the short adjournment, Miss Hoyal, from her independent position, addressed further inquiry to Legard from which she elicited the following information: first, that Legard would require to see the family on at least three occasions; secondly, in their normal setting and, the third a lengthy session at the centre. Second, that if D is not living with the mother then the optimum contact would be five days a week for about five hours a day. The minimum level of contact however could be as little as three times a week for two to three hours a day.[23]In answer to a further inquiry, the deputy manager explained why there had not been an offer of immediate residential placement. Miss Hoyal added that residential placement at Legard is for an entire family, whereas Beacon Lodge cannot accommodate the father, only the mother and baby. To that extent, and perhaps for other reasons, there may be a deeper quality to an assessment carried out by the Legard Centre.[24]We also have received the brochure of Beacon Lodge which was not available to the judge. That shows that, amongst the various services offered, are local authority referrals for women for the assessment of parenting skills. They may be admitted either during pregnancy or after birth, as may be negotiated with the referring authority. Then in the statement of aims and objectives, it is said that one objective is to prepare women residents for independent motherhood by a process of advice instruction and education. The assessment is ongoing and subject to continual review. Throughout assessment the mother will be made aware of areas of concern through regular key worker sessions in addition to normal contact with staff. The assessment focuses on the parents' ability to learn and develop adequate skills and, where appropriate, independent living skills would be taught. Whilst the main focus of the work is the child, it is recognised that it is frequently the needs of the mother which must be addressed in order to meet the needs of the child.[25]All that demonstrates quite clearly to my mind that Beacon Lodge is by no means merely a hostel. It is clearly an assessment centre that has both the resources and the skills to carry out an assessment of the attachment between mother and child, and also of the capacity of the mother to respond to professional concerns.[26]The principal question raised by this appeal in my opinion is whether the judge was indeed right to regard himself as constrained to submit to the unwavering decision of the local authority to separate mother and child as soon as an interim care order had been issued.[27]I have every sympathy with the judge who agonised in what was obviously a difficult case being heard under circumstances far from ideal. He did not have the submissions that we have had that might have persuaded him that he had indeed jurisdiction to direct that, during the brief currency of the interim order, mother and child should be placed at Beacon Lodge as part of the extensive programme of assessment that he was setting in train. The local authority had totally failed to persuade him that the parents' aspirations to care for D was completely unrealistic. The judge expressly said that he had an open mind and that the parents' aspirations were by no means hopeless. All that was to be decided by Kirkwood J, not on 11 February, which was all too soon, but on a later date in the summer. For the purposes of that decision, this judge directed not just the expert evidence that was already available, the expert evidence which the local authority submitted was conclusive against the parents, but further assessments by the Portman Clinic and by the Legard Centre. It was never submitted to him that, as part of that more extensive decision, the judge should add a further paragraph directing that the mother and baby be placed at Beacon Lodge, pending Kirkwood J's return to the case.[28]There are obvious inconsistencies on the very face of the order itself. If the judge was making an interim care order authorising D's placement with a foster carer in Dagenham who would not permit contact within her home, if the judge was authorising an interim care order on the basis of a care plan, which said by paragraph 2.4 : "Contact will be twice per week and supervised at a local family centre." how was the Legard centre to carry out the assessment directed by paragraph (3)? Equally how was there to be maximum possible contact between the parents and D at the home of the foster parent when the judge had been informed that the only identified foster parent was not prepared to receive the parents into her home? Those inconsistencies have been addressed, to some extent, during the course of this hearing. Because Mr McFarlane, on instructions, has now said that the local authority would arrange contact six days a week for two hours per day at a family centre in the Newham Borough, which is reasonably close to Mrs S's home in Dagenham, He says that there would be every opportunity for the Legard Centre to carry out their pre-residential assessment in circumstances in which mother and baby were separated but were seeing each other daily in a family centre. In the end, Mr McFarlane says that the parents have failed to show that this additional placement at Beacon Lodge is a necessary element to enable the Legard Centre to carry out its work.[29]Mr Jackson, in response, points out that the language of section 38(6) empowers the court to give such directions as it considers appropriate with regard to the assessment. It is not incumbent upon him to show that this is an essential element. He only has to show that it is an appropriate element. Clearly the judge thought that it was the appropriate management to best promote the welfare of the child. Clearly the guardian ad litem was of the same view. The judge was clearly unhappy about being put into a position in which he considered that the order that he was driven to make was not the order most likely to promote the welfare of the child.[30]In the end, the question is, is the direction for residency at Beacon Lodge within the court's jurisdiction under section 38(6)? I am of the clear opinion that it is, looking at the placement in the context of a series of simultaneous assessments designed to illuminate the courts ultimate conclusion. Plainly from the point of the view of the Legard Centre, a placement at Beacon Lodge would be preferable for the conduct of their work. It would clearly be better for all the professionals in the case, whose task is to make an independent assessment, if the mother and child were contained in that environment until the matter can be looked at again environment by the judge to whom the case is attached.[31]If that management is the better course, it must surely be appropriate within the terms of the statute. On that basis alone, I conceive that the judge was wrong to reach the conclusion that the outcome was dictated by the local authority's stance.[32]The interesting submissions in relation to the three authorities that I have cited, do not therefore demand a decision and I prefer to say nothing further, save that the proposition relied upon by Mr Jackson, derived from the judgment of Waite LJ in the case of Re G seems hard to substantiate in the light of Mr McFarlane's submissions both as to the scheme of sections 31 to 38 inclusive, and also in the light of the speech of Lord Browne-Wilkinson in Re C .[33]For my part, I would allow the appeal and add to the judge's directions a direction for a residential assessment at the Beacon Lodge Centre pending the listing before Kirkwood J. I only repeat that I arrive at that conclusion in reliance on the terms of section 38(6) alone.

LORD JUSTICE BUXTON: I agree. In his speech in Re C at page 541E of the report, Lord Browne-Wilkinson said:

"The [Children] Act should be construed purposively so as to give effect to the underlying intentions of Parliament. As I have sought to demonstrate, the dividing line between the functions of the court on the one hand and the local authority on the other is that a child in interim care is subject to control of the local authority, the court having no power to interfere with the local authority's decision save in specified cases. The case where, despite that overall control, the court is to have power to intervene are set out, inter alia, in subsections (6) and (7). The purpose of subsection (6) is to enable the court to obtain the information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority."
[35]So far as section 38(6) is concerned, I respectfully draw two conclusions from those observations. The first, as emphasised by Lord Browne-Wilkinson, is that in the case of an interim care order, the function of an order under section 38(6) is to inform of the court, in any way that it thinks necessary or appropriate, in the performance of its duty to decide whether or not there should be a final care order.[36]Secondly, looking at the matter purposively, it seems to me clear, that the court is given a very broad and generous power of determination in deciding what is appropriate and what is not appropriate in respect of the assessment of the child in the interim period. In this case, as my Lord has pointed out, the judge did not have the benefit either of the submissions or of the information that we have received in respect of the available resources and necessary circumstances of the assessment of this small child before the question of a final order is considered.[37]The judge, as again my Lord has pointed out, was not content to rest upon the information that was already before the court in respect of the history of this family and in respect of its other children. The judge saw a need for further assessment, specific to the situation of this particular child, and he so ordered. What was not squarely before the judge, were two things:(i) the nature of and the circumstances of Beacon Lodge, the place where he was asked to order that the child and mother should reside; and(ii) the potential inter-action between the residence at Beacon Lodge and the assessment at the Legard Centre that he had ordered.[38]It is now clear, as my Lord has said, that Beacon Lodge is not just a hostel. Whether or not the child is placed there specifically for the purpose of assessment, there is no doubt in my mind that the views of the skilled workers who staff Beacon Lodge will potentially be of assistance, possibly great assistance, to the court when it is considering whether a final order is appropriate. I am fortified in that view by the fact that it is the view of the guardian ad litem, who has advised the court that she would regard evidence in respect of the mother's care of D at Beacon Lodge as being directly relevant to the advice she is able to give the court.[39]So far as the assessment of the Legard Centre is concerned, the contact arrangements now proposed by the local authority do come above the minimum threshold that the authorities of the Legard Centre indicated that they require before they could perform an assessment at all. However, there is no doubt within that context that greatly more contact, such as would be provided by the residency at Beacon Lodge, would assist the Legard Centre and make it more likely that it could give definite advice from a firm basis.[40]I have no doubt, like my Lord, that had those considerations been before the judge, he would, without question, have seen that, within the context of section 38(6), residence at Beacon Lodge was not only appropriate, but also an important arrangement in the process of assessment that the judge ordered. The judge would not have been deflected from so ordering by any fear of any adverse consequence arising from the residency, other than in the context of assessment. He made it plain, in paragraph 7 of the note that we have, that he was by no means persuaded that the circumstances of the case were such as to make it inevitable that the order must be that D must be separated from his parents.[41]For those reasons, added as a modest supplement to those given by my Lord, I would agree with the order that he proposes.

Order

Conditions) [1994] 2 FLR 423. Finally, under this head he suggests that the judge had the inherent jurisdiction to impose such conditions, notwithstanding the terms of section 100(1) of the Act. Order: Residential Assessment) [1997] AC 489 . He submits that the speech of Lord Browne-Wilkinson makes it absolutely plain that the division of the function between court and local authority vests power, responsibility and discretion in the local authority alone once the interim order has been made. Order: Appeal allowed with costs subject to public funding assessment .

Cited in 6 later judgments