L (A Child), Re [2013] EWCA Civ 179

[2013] EWCA Civ 179

Case No B4/2013/0113

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT

MRS JUSTICE PARKER

FD11P50007

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/03/2013

Before

LORD JUSTICE THORPE

LORD JUSTICE McFARLANE

LORD JUSTICE DAVIS

Re: L (A child)

Hearing Hearing date : 19 February 2013

Mr Robin Tolson QC and Miss Jessica Wood (instructed by Russell Cooke Solicitors) for the Appellants

Miss Anna McKenna (instructed by Wandsworth Legal Services) for the First Respondent

Miss Carole Parry-Jones instructed by NYAS for the Fourth Respondent

Judgment

[1]The focus of this appeal is upon the making of an interim care order sanctioning the immediate removal of a nine year old child from the only home she has known at a without notice, or at the very best short notice, hearing. This discrete issue, however, arises in the course of extended family proceedings relating to the care of this young child which have been, in one form or another, before the Family Division and at times the Court of Appeal throughout much of her life. Background

[2]The case concerns M, who was born on [a date in] 2004 and who is therefore now aged nine years. M’s mother is RL and her father is NL. At the time of M’s birth both parents were involved in serious drug misuse and M was placed on the child protection register within a month of her birth. By the time she was three months old M moved to live with her maternal grandmother and step-grandfather, Mr and Mrs S. M has remained in the care of Mr and Mrs S since that time and their home has effectively been her lifetime home to date. Initially the caring role of Mr and Mrs S was recognised by the granting of a residence order on 19th April 2004, but this was subsequently elevated to a special guardianship order on 7th September 2006.

[3]The placement of M with Mr and Mrs S did not have the support of M’s mother, RL. The special guardianship order was made by Black J, as she then was, following a contested hearing, but the judge did not go further and grant Mr and Mrs S leave to change the child’s surname to theirs. At the time of the making of the special guardianship order, and effectively at all times since, the live issue before the court and between RL and Mrs S has been the question of what, if any, contact young M should have with RL.

[4]In April 2008 the matter came back before Black J upon the mother’s application to revoke the special guardianship order and to achieve the removal of M from the grandmother’s care. The judge observed that despite orders for the development of contact made following the final hearing in 2006, there had effectively been no progress in establishing regular meetings between the child and her mother. Such sporadic encounters as had taken place were always on the basis that Mrs S insisted upon being present. Black J was plainly concerned for the well being of M in the middle of what apparently presented as a highly conflicted and complicated mother/daughter relationship between Mrs S and RL. At the hearing in April 2008 Black J considered whether a consultant child and adolescent psychiatrist should be instructed. That instruction, and indeed any continued court involvement, was strenuously resisted by Mrs S whose plea was to allow the family simply to get on with the task of bringing M up and coping internally with any difficulties that might arise. Black J disagreed and directed that Dr L, a psychiatrist with relevant experience, should be brought into the case. The active involvement by Dr L in the case was delayed for over a year, in part, no doubt, because in January 2009 Mrs S sought to appeal the decision to bring in a psychiatrist. Permission to appeal was, however, refused by Wall LJ in April 2009.

[5]On 9th June 2009 Black J was unavailable to take the case and the proceedings came for the first time before Mrs Justice Parker. Since that time judicial continuity has been maintained with Parker J having conduct of each and every one of the many hearings that have taken place.

[6]In the period between June 2009 and May 2010 Parker J conducted a series of oral hearings running to some nine days in all. During this period Dr L’s full report was delivered and analysed within the course of the hearings, at the conclusion of which, on 19th May 2010, Parker J delivered herself of a very substantial judgment which runs to some 315 paragraphs. By that time Mrs S had ceased to co-operate with the court process to a significant degree. Although she attended hearings acting as a litigant in person and although she gave evidence to the court, she refused to disclose basic key information about M’s care to the judge or to any of the parties. The most striking example in this regard is that at the end of August 2008 Mrs S made arrangements for M to move from London, leave the school which she had hitherto attended, and take up residence in Devon with a view to attending a school locally there. In order to underline the degree of non-disclosure it is necessary to stress that the arrangements for the child’s care and education were changed in August 2008 and remained unknown to the judge, to M’s mother and to the children’s Guardian, appointed to represent M in the proceedings, up to and beyond the day on which the judge gave her comprehensive judgment in May 2010, some 20 months later. Parker J recorded the position in these terms in paragraph 287 of her judgment:

“These are the things I do not know: 1. Where M is at school; 2. Whether she is attending school four days a week or five days a week or less; 3. The address where she lives when she is attending school; 4. Who is looking after her; 5. How she is doing at school; 6. Why she is attending this particular school; 7. What surname she is registered under; 8. What she knows about her background; 9. What professional assessment might reveal about M, since Mrs S has refused to allow any assessment without her present or nearby within earshot; 10. What professional assessment might reveal about M’s relationship with RL, since Mrs S has refused to allow M to be seen with RL without her present.”

[7]More generally, during her earlier involvement Black J had been struck by “the degree of raw agitation and excitability” that attended the case as well as by the “strongly competing emotions of love, dependency and conflict that exist between RL and Mrs S”. Black LJ’s concern was shared by the children’s Guardian and the social worker, who regarded the family dynamics as “very complex and intricate” arising from a history that was long-standing, Black J, whilst not purporting to have any greater understanding than those two professionals of what was at the heart of matters, observed that “any consideration of the causes of the family problems would be bound to result in a conclusion that many factors were implicated and that blame could not be placed fairly and squarely on one individual or on one external cause”. That assessment, with which Mrs S profoundly disagreed, came to be shared by Parker J by the time she delivered her May 2010 judgment.

[8]Parker J records that the intervention of Dr L was met by deep opposition from Mrs S who accepted neither the doctor’s advice, nor her capacity to give that advice. Mrs S was said to take the view that she was better qualified than Dr L to assess what was in M’s best interests. Mrs S’s contempt for Dr L is reported to have reached a stage at which she was critical of the doctor’s clothes, her facial expression and tone of voice. Mrs S was resistant to any suggestion that there was anything wrong in her relationship with RL which did not arise from some fault on RL’s part or as a consequence of RL’s misuse of drugs.

[9]The May 2010 judgment records the professional opinion of the children’s Guardian, Mrs B, who is described by the judge as having “very considerable experience”. Amongst the matters recorded are Mrs B’s conclusion that “the adult relationship between Mrs S and RL was ‘the most dysfunctional she had ever come across’” and that “Mrs S believes that she is the expert. She believes she knows best. Mrs S is convinced that only she knows what is best for M and any contrary view is seen as unwarranted interference. She will not listen to advice”.

[10]On the all important issue of contact between M and her mother, Parker J’s conclusion is expressed at paragraph 284:

“In this case I have overwhelming evidence that it is in M’s interests for her to have a relationship with her mother independently of her grandmother. I am in no doubt that for Mrs S to be present while RL sees M will become increasingly strange and stressful for her. The quality of contact is likely to be poor. M will be increasingly aware of the tensions, and Mrs S’s insistence on being present or within earshot, and on bursting in when things she does not like are discussed will be oppressive and worrying. The capacity for active harm in the circumstances of this case is extremely high.”

[11]I have made specific reference to the judge’s observations in paragraph 284 because they have a resonance with the events which seemingly triggered the local authority’s decision to seek the interim care order which is now under review before this court some two and a half years later.

[12]Parker J concluded that it was in M’s best interests to develop an independent relationship with her mother. She considered that M was in “a potentially very damaging situation”. The judge made an order for contact to take place every six weeks, and for it to be supervised for the first six months. The judge also directed Mrs S to produce information about M’s school and to disclose the address where she and M live when they are in Devon.

[13]The case returned before Parker J on 21st July 2010. Despite the orders that had been made, Mrs S had failed to disclose details of the school or the address in Devon. The Guardian had discovered the identity of the school and discovered that M’s attendance record was around the 50% level with the consequence that the school had made a referral to the local social services department in December 2009 and then again in March 2010 as a result of these absences. It is of particular note that M was in fact withdrawn from the school in Devon on 15th March 2010, some two months before the judge’s main judgment in May. The July 2010 judgment indicates that the court remained in the dark as to how, if at all, M had been educated during the Spring and Summer of 2010.

[14]By July 2010 the level of judicial concern had plainly escalated. Lest there be any attempt to remove M from the jurisdiction, Parker J made a declaration that the child was habitually resident in England and Wales and she placed an embargo upon the grandparents taking M out of the jurisdiction for anything more than a holiday within school holiday periods. Further, the judge made a direction under CA 1989 s 37 directing Wandsworth London Borough Council (“the local authority”) to make an enquiry into M’s circumstances to determine whether or not an application for a care or supervision order was required.

[15]As a matter of record Mrs S made an application for permission to appeal the May 2010 orders. An oral hearing took place before Munby LJ on 20th August 2010 during which the state of judicial ignorance as to M’s current circumstances described by Parker J, and arising from the unwillingness of the grandparents to provide that information, was described by the judge as being, in his experience, “unprecedented”. Permission to appeal was refused.

[16]On 6th October 2010 the case was back before Parker J who recorded that no contact had yet taken place between mother and daughter and that the grandmother remained adamant that there should be no contact at a contact centre. Orders for the disclosure of the identity of M’s new school had not been complied with by Mrs S. The judge re-stated those orders. At paragraph 6 of the judge’s judgment it is recorded “The grandmother then said she would remove M from her new school.”

[17]The section 37 report was filed in September 2010. The authors of the report concluded that M’s greatest need was for a resolution of the relationship between mother and grandmother, not simply of contact arrangements but, more importantly, of their relationship as a whole. The report concluded that the statutory threshold for a care or supervision order in CA 1989, s 31 was not met, that M was not at risk of significant harm attributable to the care given to her and overall that that care was positive and of a high quality.

[18]During the October 2010 hearing Parker J was exposed to evidence of numerous telephone calls made at all times of the night to the social worker or the children’s Guardian in the lead up to the hearing. The calls were made either by Mrs S or by M. The judge was also re-exposed to the grandmother’s trenchant opposition to the involvement of the court in her discharge of parental responsibility for M, with Mrs S’s continued refusal to disclose information about M’s education being a prominent feature. The judge therefore concluded in the following terms at paragraph 94 of her judgment:

“Notwithstanding Wandsworth’s view as at 17th September 2010, I am of the view that M is suffering harm in the care of the grandmother and Mr Feehan, on behalf of the Guardian, does not seriously challenge that view.”

[19]Parker J held that it was not in M’s interests for the court to back off, she therefore re-asserted the orders for contact at the contact centre, which were reinforced with a penal notice. The judge also expressed the view (paragraph 98) that the time may have come for M to be made a ward of court. However she postponed detailed consideration of that option for it only to be revived if there was non-compliance with the order for contact.

[20]The case returned before Parker J in February 2011 and another substantial judgment was delivered on 23rd February. A number of contacts had taken place at the contact centre, but on each occasion the grandmother had refused to leave M alone with RL, with M herself asking the grandmother to remain. The contact sessions apparently came to an end after M declined to attend.

The judge found (paragraph 86) that:

“The battle tactics have changed and M is being overtly manipulated in what I can only describe as a campaign. The only explanation for the change in attitude from a compliant child to a resistant one is that the grandmother had influenced M to take an adverse view about [the contact centre].”

[21]The judge repeated her view that contact away from the grandmother was in M’s best interests and that “M is being caused very significant harm by the grandmother’s attitude”. Later the judge said “the events of the last few months have reinforced my strong view that M is at risk of emotional harm, probably serious risk of emotional harm, and is probably already experiencing emotional harm, in the care of her grandmother”.

[22]At the February 2011 hearing RL wished for the children’s Guardian to be removed and the Guardian herself asked to be discharged. The judge therefore acceded to those requests and NYAS were approached to provide a replacement Guardian.

[23]Following her reference to wardship in her October 2010 judgment, and in the light of the apparent escalation in judicial concern, the judge made M a Ward of Court on 23rd February 2011.

[24]The case was back before Parker J in October 2011. By that stage the local authority had filed a further section 37 report and the question of involvement of a child and adolescent psychiatrist and/or family therapy was discussed. In view of the issues that are now before us the following observation at paragraph 27 of the judgment given on 18th October is of particular note:

“I said at the time [May 2010] that I accepted that RL was the more volatile and that Mrs S did not show her anger. I have to say, at a number of hearings since I handed down that judgment, I have seen a different side to Mrs S including last week when she has shown quite frightening anger and has shouted and behaved in a most intimidating manner. Whether that behaviour is under her control or not, I do not know.”

[25]The judge recorded that Mrs S continued to be “outraged” at the idea that it could be thought that M is at any risk of any harm in her household. The judge then went on at paragraph 41 to report the following:

“Mrs S’s behaviour last week was alarming in the extreme. She made a number of different submissions to me, including interrupting other parties. She made a number of very personal comments about me. This is something which is, I am afraid, par for the course in this case but it seems to be that it is becoming more extreme….towards the end of what were intended to be final submissions she had the most extraordinary tantrum. This is not the first time this has happened, but this was more extreme, more alarming and more aggressive and she displayed less control than she has ever before. She repeatedly shouted saying ‘take the child, she should go into care’ and, in the end, she stormed out of court and refused to come back.”

[26]The October 2011 hearing ended with the court establishing a referral for family therapy together with contact on a three weekly interval at a local food outlet or a similar public place. The local authority were to continue their involvement and file a further section 37 report.

[27]The hearing immediately preceding the one with which we are concerned took place in October 2012. Parker J’s judgment of 31st October records that no contact had taken place between mother and daughter since 10th April 2012 when the sessions at the contact centre abruptly ceased. The judgment also records that, once again, M’s school had been changed with the consequence that M had become “well and truly embedded” at the new school before Mrs S informed the court of the change on 10th September. It is to be remembered that, in addition to orders requiring disclosure of the details of M’s school, M had, by that time, been a Ward of Court for over 18 months.

[28]At paragraph 25 of the judgment,

the judge states as follows:

“I am very alarmed about the frequent changes of school, I am very alarmed at Mrs S’s preoccupation of the musical ability of this little girl, right from the pre-school stage, because that was the reason why she was trekking her down to Exeter on a weekly basis at the age of 4 and three quarters, and I am very concerned at the emphasis on intellectual rather than emotional development. On the other hand, I know very well how difficult it is to remove a child to a different home at this stage, and how overwhelming must be the justification for so doing. Of course, if I even breathe a word about these prospects I am accused of undermining the placement, and it gets fed back to M and it increases her distress. Mrs S has talked about “double binds”

. I feel that I am in one myself. This is not just what I think, it is what everyone else thinks as well.” And then at paragraph 29: “I find the question of the way forward almost impossibly difficult. I recognise that a life in foster care for this child could be very difficult indeed. She has the benefit of a middle class home and she has so far had the benefit of a reasonable education, although disrupted. She has the benefit of food, warmth, care, and all the good things her grandparents do, in particular her step-grandfather, who I think does far more than the grandmother, and is supportive, familiar and comforting. At the same time, I think the social services department needs to have a very careful and in-depth look at what is in her interest. A number of strategies can be considered, short term as well as long term, in order to break this particular cycle. No one is recommending that to me at the moment. I could not put my hand on my heart and say that things are sufficiently bad at the moment for me even to begin to suggest that that is a step that should be taken. As I say, it is made almost impossible for me even to articulate these thoughts because of the use that is made of them. I do think however that all options may need to be considered. I am, as I said, very concerned that matters are getting worse rather than better. I repeat, as I have said so many times before, that I do not see the contact problems in this case as being isolated from the other problems. The conflict with the authority and those that disagree with Mrs S is really compulsive all the way through her interactions with the world”.

[29]The clear import of that judgment was to flag up the potential for M to be removed from the home of Mr and Mrs S into foster care. The judgment provided a last chance warning to Mrs S in the hope that she would alter her stance and move forward in a co-operative manner in order to address the serious relationship problems that the judge had identified which were, in the judge’s view, having a global and adverse impact upon this young girl’s emotional well-being. 14th December 2012: Interim Care Order

[30]At the conclusion of the October hearing the judge apparently directed the local authority to file an ordinary welfare report under CA 1989, s 7, although we have not seen a copy of that order. It is that direction, coupled with the events that the resulting s 7 report records, that led to the matters that are directly under review in the present appeal.

[31]The order commissioning the s 7 report directed that it should be filed and served on all parties by 12th December. A short review hearing was listed for 2 p.m. on 14th December. However, as a result of a re-appraisal of the case, coupled with events which occurred on 6th and 8th December, the local authority concluded that M’s welfare now needed protection by means of her immediate removal from the home of Mr and Mrs S under an interim care order. Further, the local authority were concerned that if Mrs S became aware of their recommendation and proposed application for an interim care order, M might suffer additional emotional harm as a result of Mrs S’s potential reaction to this information and/or Mrs S may, once again, take unilateral action to remove M to an unknown location.

[32]In the circumstances that I have described the local authority approached the judge’s clerk through e-mail communication (and on one occasion a telephone conversation of which we have no note) to canvass the case management options which might achieve disclosure of the report, yet protect M from the perceived risk of further harm to M.

[33]In the event the judge released the local authority from its obligation to serve the s 7 report on any party (including the children’s Guardian) before its contents could be considered by the court at a hearing attended by the local authority, but of which no other party had notice. That hearing took place during the luncheon adjournment shortly before the two o’clock timing of the fixed review hearing of which the other parties had notice.

[34]In what was a short without notice hearing Parker J noted the local authority’s intention to make a formal application for an interim care order, noted that at that moment M was still a Ward of Court and the subject of ongoing proceedings before the Family Division and the judge concluded that it was permissible to deploy the jurisdiction under CA 1989, s 37 by making an immediate direction to the local authority to undertake an investigation of the child’s circumstances. That direction having been made the court went on to utilise the resulting jurisdiction under CA 1989, s 38(1)(a) to make an interim care order with respect to M. The result of this process was that M was already subject to an interim care order by the time that Mrs S, some minutes later, was given a copy of the s 7 report, told of the local authority’s recommendation and told of the judge’s without notice order.

[35]A hearing then followed at which all parties were either represented or present, save for Mr S who had not intended attending this review hearing. During the “on notice” hearing, which seems to have run during and beyond the ordinary length of the court afternoon, the judge heard from each party on the question of whether or not the interim care order was justified and should continue. At the end of the process the judge confirmed the interim care order which was made for the maximum period of eight weeks, but an additional hearing was fixed for 21st December to provide an opportunity for a review of the operation of the order and to allow for any party, in particular Mrs S, to make representations as to its continuation.

[36]The present appeal seeks to challenge both the process adopted and the substantive orders made by Parker J on 14th December 2012. The original grounds and skeleton argument prepared by Miss Sarah Morgan QC and Miss Rebecca Mitchell on behalf of Mr and Mrs S set out the following grounds of appeal: a) Making an interim care order with a plan for immediate removal was not justified and was plainly wrong; b) The judge failed sufficiently to weigh up the negative impact upon M from a precipitate removal from home and failed to afford paramount consideration to M’s welfare; c) It was, in any event, plainly wrong to make an eight week order; d) There was no basis on which the hearing to determine the application for an interim care order should have been conducted: i) Without notice; ii) In closed session; iii) Without providing to Mr and Mrs S:(a) a statement setting out the basis on which the threshold criteria were said to be satisfied;

(b) a copy of the application;

(d) a copy of the s 7 report; iv) Without giving Mr and Mrs S an opportunity to be represented; e) The judge failed to give adequate reasons for proceeding as she did; f) In making the order that was made, the judge effectively determined the issues that will fall to be determined at a final hearing.

[37]In presenting the appeal before us, Mr Robin Tolson QC, who is now instructed on behalf of the Appellants together with Miss Wood, whilst relying upon the existing grounds of appeal, sought to concentrate his fire upon the procedural aspects as opposed to those grounds which focus upon the welfare determination and the child-focussed merits. I would at this stage like to record that we were both grateful for and impressed by Mr Tolson’s clear and effective presentation of the case for Mr and Mrs S.

[38]In the light of the transcripts (which were not available to Miss Morgan when drafting the grounds of appeal), Mr Tolson developed the procedural criticisms by challenging the following in addition to the procedural points that had been made in the grounds: a) The use of a s 37 direction in circumstances where the local authority had already provided a s 7 report and had determined to issue an application for a care order. Mr Tolson submitted that, in the procedural circumstances of this case, the use of s 37 was an impermissible device; b) The failure to comply with statutory procedure and practice (for example the Public Law Outline) designed to ensure a fair hearing; c) The without notice hearing was so short, with no substantive submissions being made, that it is apparent that the judge had pre-ordained the outcome and the order that was to be made; d) There was no equality of arms.

[39]Finally, Mr Tolson submitted that if the process adopted by the judge could be characterised as anything then it was an executive action in which the State decided to remove M from her special guardians, with two different organs of the State combining to effect this removal without any process that could properly be characterised as a trial, or, on any view, only after a trial that was unfair. The case for an interim care order

[40]Before turning to the analysis and evaluation of those grounds it is necessary to give some short detail of the contents of the s 7 report and the local authority’s justification for seeking an immediate interim care order.

[41]The author of the report, who was new to the case, expressed a degree of concern at two aspects of a report that she had received from the school that M was by then attending. Firstly the school described how Mrs S would at times speak in a highly negative way about RL, M’s mother. Further, and of more concern, the school reported regular behaviour by M in which she seemed self-absorbed and would habitually rock to and fro. Neither of these two matters, in themselves, were regarded by the social worker as justifying intervention, but they added cumulatively to the picture that had already been so clearly described by the judge in her recent series of judgments.

[42]Secondly, and of much greater concern, the social worker had had great difficulty in engaging with Mrs S to arrange to come to the family home to meet M in order to discuss contact with RL. The meeting eventually took place on 6th December. The social worker describes how, initially, following her arrival Mrs S was charming and co-operative. The time came when Mrs S left M and the social worker in the living room to conduct their discussions. At one stage the social worker reports saying to M that she believed that RL really did want a chance to spend time with her. The report continues in the following terms:

“Whilst I was talking to M about contact with her mother and whilst she was expressing her feelings, Mrs S stormed into the room and asked in an angry voice if I wanted more tea and grabbed my cup (half filled with tea still) and stood at the entrance of the room and accused me of being a ‘liar’ and asked how ‘dare’ I come into her home and tell lies to a child. She repeated this several times. She went on to say that I am manipulative and that I scored zero. I noticed M rocking in her chair whilst Mrs S was venting her angry feelings.”

[43]Later, after Mrs S and the social worker had moved from the living area to the kitchen the report states:

“Mrs S accused me of lying because I told M that her mother wants to see her. She asked me how I truly knew this was the case.”

[44]Thereafter the social worker avoided returning to the topic of contact and spent time with Mrs S and M in order to ensure a calmer atmosphere before leaving the property. The report records how the social worker was struck by Mrs S’s behaviour which “changed to the complete opposite of being warm, kind and supportive in a short space of time”.

[45]The purpose of visiting M on 6th December was to prepare her for a planned contact visit, supervised by the social worker, which was to take place on 8th December. On that day the social worker and RL attended the contact venue, but M was not brought for contact.

[46]As a result of these events, set as they are against the detailed history which is chronicled in Parker J’s extensive judgments, the local authority concluded that the point had been reached beyond which it was no longer emotionally safe for M to remain in Mr and Mrs S’s care. The plan was therefore formulated to seek her immediate removal under an interim care order. Without notice hearing

[47]On 22nd January 2013 I granted Mr and Mrs S permission to appeal. At that time the understanding that they had, together with their counsel, was that at the without notice hearing the judge had, then and there, made the full 8 week interim care order. In the absence of a transcript of all save for the judge’s final “on notice” judgment, the understanding was that the “on notice” hearing that followed was relatively short, concluding in a judgment in which the judge sought to justify the steps that had already been taken at the “without notice” hearing.

[48]For the purposes of the present hearing we now have a full transcript of the without notice hearing and the on notice hearing together with a short memorandum from counsel, Miss Anna McKenna for the local authority, who appeared before Parker J on 14th December and again before us at this hearing. The greater clarity that those materials provide indicate that some time between 1 p.m. and 1.15 p.m. the s 7 report was handed in for the judge to read in her chambers. At about 1.50 p.m. the local authority team went into court for the “without notice” hearing. Miss McKenna’s recollection, which is confirmed by the transcript of the hearing which runs to just over two sides, is that this hearing lasted a matter of no more than 5 minutes. The judge stated that she had read the s 7 report and was contemplating making an interim care order but questioned the power to do it at a without notice hearing. The potential to utilise s 37 is raised by the judge and the scheme that was apparently adopted is encapsulated in one short exchange:

“Miss McKenna: You can make a s 37 placing the child into our care, take the matter immediately and hear inter partes arguments. Mrs Justice Parker: Including an application for discharge. Could I discharge the care order on that basis?”

[49]There is then a short discussion about security arrangements and the decision that the local authority have taken. The judge then twice states that she is keen to get “everyone in”. At the conclusion Miss McKenna says “may I take it that a s 37 direction has been made?” to which the judge replies “yes, a s 37 direction and a care order, and for the purposes of the transcript I am satisfied that there is a real risk of significant harm to this child if I do not make an interim care order prior to Mrs S understanding that this local authority is wishing to take care proceedings. There is no doubt about that.” On notice hearing

[50]Unfortunately the transcript of the on notice hearing does not kick in until some minutes after the hearing apparently commenced. However, we now have a note prepared by a law student assisting as a note-taker, which contains an account of what took place in these early minutes. It is plain that from the start Mrs S was extremely exercised by what she understood was taking place. Against constant interjections from Mrs S

the judge sought to explain the situation and is noted as saying:

“I was prepared to entertain an application ex parte because I am satisfied that in the light of what I have been told that there is a risk to M of being emotionally harmed, and to agree to the local authority proposal for a care order. I have made an interim care order ex parte pursuant to section 37 to the local authority. This is to safeguard M for the immediate future. I am prepared to hear submissions by Mrs S, M and Mr S as to why I can’t discharge the care order. I can sit tomorrow, or Monday if necessary.”

[51]The formal transcript commences with the judge inviting the local authority to explain what is planned for M “if I continue this care order this afternoon”. The hearing then follows a conventional format with the judge hearing from various parties, but throughout Mrs S is recorded as interjecting almost at the end of every sentence. Her interjections indicate total opposition to what is proposed and do not betray any understanding of the matters about which the local authority and the judge have expressed concern. At times Mrs S’s statements amount to direct personal attacks on the judge. She attributes to the judge a cynical motive aimed at causing, in her view, maximum harm to young M. For example, and this is no more than one example, at one stage Mrs S is recorded as saying the following to the judge:

“Oh yes, I mean you’ve got to work out how to destroy this child lock stock and barrel, haven’t you? All’s fair and square. I mean, you’re being paid to destroy her so you ought to be allowed to get on with the job perfectly. Go ahead.”

[52]When it was Mrs S’s allotted turn to address the court, the transcript shows that the judge permitted an extensive period for Mrs S’s oral submissions. They run from page 15 to page 27 of the transcript and occupy well over half of the oral hearing prior to the judge’s attempt to deliver judgment. Much, if not all, of the words attributed to Mrs S can only be described as an unfocussed rant which in no manner engages with the substantive points of concern raised by the local authority.

[53]Thereafter the judge began to give her judgment. I have described this process as an “attempt” to deliver judgment. I do so because throughout the entirety of the judge’s delivery of her structured reasons, Mrs S is recorded as interjecting in a hostile and progressively more florid manner. Rarely does the judge achieve the delivery of more than one sentence at a time. I have counted at least 126 interjections by Mrs S during the course of a judgment which runs to 23 pages of transcript. This was an extempore judgment, delivered by a judge who had only taken receipt of the section 7 report that lunchtime. The delivery of an extempore judgment, even in a calm and ordered courtroom, is a taxing task for any judge. To do so in the face of relentless hostile interruption places the task faced by Parker J in explaining her reasons at the very extreme end of what can reasonably be expected from a judge. Through her dogged persistence, the judge was able to describe the basic elements of the decision making process that she had undertaken and the justification for the orders that she had made. Insofar as Mrs S now, through her counsel, seeks to criticise the judge for failing to include matters of nuance or detail I consider that such criticism can have absolutely no foundation.

[54]Having described the conditions in which the judgment was given, I feel driven to make two short observations. Firstly, although the conduct of his or her court is a matter for each individual judge, from a very early stage in the delivery of this judgment, once it became plain that Mrs S was not going to restrain herself and allow the judge to proceed in an orderly manner, the judge would have been quite in order to have required Mrs S to vacate the courtroom, notwithstanding that she was a litigant in person and her husband had not attended court to remain as a witness to the judgment in her place. Many judges would regard Mrs S’s open contempt for the judge to be intolerable, and they would be right to do so. I anticipate that Parker J felt it better, despite Mrs S’s interruptions, for Mrs S to be in the room and have the opportunity to be exposed to what was being said, and the observation I have made is in no manner to be critical of her, rather, I simply intend to put the marker down that this striking level of tolerance is not a requirement for every judge faced with similar circumstances.

[55]The second observation I make is that the fact that Mrs S stayed in the court room and is now recorded as speaking in these highly negative and emotive terms is material evidence in the case which gives to this court a deal of insight into Mrs S’s functioning at the time, and adds perspective to what lies behind the concerns expressed by the social workers and the judge at the thought of young M experiencing Mrs S’s reaction first hand had the s 7 report been delivered to her in advance of the hearing, or had prior notice of the interim care order application been provided. Discussion

[56]A primary concern expressed by Miss Morgan QC at the oral permission to appeal hearing was that the judge appeared to have decided to grant an eight week interim care order at the without notice hearing, attended only by the local authority, with only a short on notice hearing following during which the judge simply gave judgment explaining the decision that had already been taken. That understanding was tenable on the basis of the only transcript then available, which was of the on notice judgment. Now that the court has a full transcript of the without notice hearing, together with an almost full transcript of what followed, which is augmented by counsel’s note, the situation is seen to be very different.

[57]The without notice hearing was extremely short. Within it the judge suggests and then makes a s 37 direction and an interim care order solely in relation to the risk of significant harm arising in the period ‘prior to Mrs S understanding that this local authority is wishing to take care proceedings’. The note of the very start of the on notice hearing records the judge stating that she did not think she could trust Mrs S to restrain her feelings with M and that there is a risk of emotional harm. Parker J is noted as saying: ‘I was prepared to entertain an application ex parte because I am satisfied in the light of what I have been told that there is a risk to M of being emotionally harmed …. I have made an interim care order ex parte pursuant to s 37. This is to safeguard M for the immediate future’.

[58]The order relating to the without notice hearing records the following orders: i) ‘Pursuant to s 37 Children Act 1989 [M] shall be placed in the interim care of the London Borough of Wandsworth pending the conclusion of an inter-partes hearing of the local authority’s application for an interim care order. ii) The inter-partes hearing of the application by the London Borough of Wandsworth shall commence forthwith upon the conclusion of this ex parte hearing.’ That order was drawn up some time after the hearing, but it must have been approved by the judge and it is entirely compatible with what can now be seen from the transcript.

[59]As I have already described, the on notice hearing was substantial and afforded very significant time to Mrs S to express her total opposition to the continuation of an interim care order beyond that afternoon. The order making the eight week interim care order was only made at the conclusion of the on notice hearing. It follows that the course of events that had been contemplated by Miss Morgan and the court at the oral permission to appeal hearing is not substantiated by the sequence of events recorded within the transcripts, notes and court orders. Mr Tolson makes important criticisms of the process that we now know took place, and I will come to them, but the procedural challenge is on an altogether narrower basis than that which was originally being considered.

[60]Before turning to Mr Tolson’s main arguments on procedure, it is necessary to look at the overall merits of the judge’s welfare based determination which was that M required immediate removal from the care of Mr and Mrs S and placement in foster care.

[61]I propose to take these matters shortly for two reasons. Firstly, Mr Tolson does not place his main focus upon them in presenting Mr and Mrs S’s case to this court. Secondly, the care proceedings are continuing at first instance and in due course there will need to be a full evaluation of the alleged risk of harm to M and the potential for her to be cared for safely in the future back in the home of her grandparents. It is therefore unwise for me to say more about these matters than that which is absolutely necessary for the disposal of this appeal.

[62]The statutory jurisdictional thresholds applicable to s 37 and to the making of an interim care order are:

‘… it appears to the court that it may be appropriate for a care or supervision order to be made …’ [s 37(1)] ‘… [the court] is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in s 31(2) [s 38(2)]. The ‘circumstances … mentioned in s 31(2)’ are that the court is satisfied: (a) ‘that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to: (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.’

The threshold in s 37(1) is necessarily low (‘may be appropriate’). The threshold in s 38(2) is higher (‘reasonable grounds for believing’) but not as high as that in s 31(2). The task facing Mr Tolson on appeal is the need to establish that the judge was plainly wrong in holding that the thresholds in s 37(1) and in s 38(2) were met on the facts of this case as they were known to be on 14th December 2012.

[63]Having set out the background history and the previously stated conclusions of both Black J and Parker J, it is, in my view, impossible to hold that Parker J was plainly wrong in concluding that a care or supervision order ‘may be appropriate’ or that there were ‘reasonable grounds for believing’ that the full threshold criteria in s 31(2) were satisfied with respect to M and the care that she was receiving in the home of Mr and Mrs S. As long ago as October 2010, Parker J concluded that M was suffering harm in the care of the grandmother. In February 2011 this had escalated to a finding of M being caused ‘very significant harm’. In the period between May 2010 and October 2011 the judge records that she had become aware of M being overtly manipulated by Mrs S as part of her ‘campaign’ and had in October 2011 ‘seen a different side of Mrs S including last week when she has shown quite frightening anger and has shouted and behaved in a most intimidating manner’. Mrs S’ behaviour in court was seen by the judge to be ‘more extreme, more alarming and more aggressive and she displayed less control than she has ever before’.

[64]In the period between October 2011 and October 2012, as I have recorded, the material upon which the judge was able to assess the risk of harm to M led her to be ‘very concerned that matters are getting worse rather than better’. The judge was fully entitled to consider the most recent information available for the 14th December 2012 hearing from the social worker as indicating either a continuation or a further escalation of the abusive situation that she had previously identified.

[65]For present purposes it is only necessary to conclude that the finding of emotional harm, or likelihood of emotional harm, to the extent required by s 37(1) and s 38(2) was reasonably open to the judge on the totality of the evidence. In my view that is plainly the case and it is not open to this court to hold that the judge was wrong in these two conclusions made in relation to these two relatively low interim thresholds.

[66]The next stage was for the judge to consider whether an interim care order was justified and, as a separate conclusion, that under it M’s welfare required her immediate removal from her grandparents’ home. The test here, as Mr Tolson submits, is that set out by this court in Re LA (Care: Chronic Neglect)

[2009] EWCA Civ 822

;

[2010] 1 FLR 80

where Thorpe LJ stated at paragraph 7 that: ‘… separation is only to be ordered if the child’s safety demands immediate separation’ and ‘…is not to be sanctioned unless the child’s safety requires immediate protection’.

[67]In Re B (Care Proceedings: Interim Care Order)

[2009] EWCA Civ 1254

; [2010]1 FLR 1211, Wall LJ rightly concluded that, in this context, ‘safety’ should be given a broad construction to include a child’s psychological welfare.

[68]The question for this court is: was the judge plainly wrong to conclude that M’s emotional and psychological welfare were at risk of harm to the extent that her safety demanded immediate protection by means of separation from her home and her grandparents’ care?

[69]Mr Tolson submits that the judge was indeed wrong and in the course of his submissions he said ‘there is no suggestion that Mrs S was causing physical harm to M; the harm is nowhere put any higher than long term emotional damage’. In so far as that submission suggests that emotional harm is in some manner necessarily less serious than physical harm, I have no hesitation in rejecting it. In so far as the submission accepts only ‘long term’ emotional harm, it totally ignores the potential for acute and immediate emotional damage by M being exposed to Mrs S’ behaviour and her reaction in response to the information in the s 7 report and knowledge of the local authority’s application for an immediate interim care order. In this regard the judge had had first hand experience of Mrs S’ unilateral removal of M to a number of different schools, and her sustained refusal to disclose the child’s whereabouts, together with Mrs S’ emotional and uncontrolled presentation at a number of court hearings. In her judgment on 14th December, Parker J concluded that M ‘needs not to be exposed to the kinds of pressures which are placed upon her by her grandmother … [which] arise from Mrs S’ rejection of any view of anyone which does not accord with her own’ [page E26]. The judge stated [page E31]:

‘If I had any hope that Mrs S were able to deal with the child responsibly, sensitively and in her interests, I would have been prepared to reconsider where she should be placed, but I do not think that she has as yet shown any capacity to understand what the concerns are and I do not think that [M] could be other than harmed by going back to her grandparents at the moment’

. It should also be noted that by the time she came to express those conclusions, Parker J had been exposed to Mrs S’ extreme and emotionally florid reaction to the events of 14th December which had been sustained over the course of a hearing lasting some two or more hours. The fact that the judge did not expressly refer to the test in Re LA, in the context of a judgment given in the most hostile of forensic settings, is neither here nor there; the judge’s words show that M’s immediate protection from harm was her primary concern.

[70]In short, I consider that the conclusion that M’s safety, in terms of her emotional and psychological well-being, required her immediate separation from the care of Mr and Mrs S was plainly open to Parker J on the evidence and is not vulnerable to a finding by this court that it was plainly wrong.

[71]In the circumstances, Mr Tolson was justified in focussing his submissions upon the procedure adopted by the judge, rather than upon the merits of her decision. The procedural attack boils down to two issues: a) The use of s 37 as the foundation for making the interim care order; b) The making of an interim care order at a without notice hearing.

[72]Mr Tolson’s submissions with regard to s 37 highlight: a) The fact that the judge had the s 7 report which, in all but name, delivered that which a s 37 was designed to achieve. The use of s 37 was therefore, it is submitted, an empty sham; b) In those circumstances, the use of s 37 was impermissible; c) The local authority should have issued an application for either an emergency protection order or an interim care order in compliance with Family Procedure Rules 2010, PD12A (the Public Law Outline) requirements for pre-proceedings preparation, including sending to Mrs S a ‘pre-proceedings letter’ and disclosure to her of social work statements; d) S 37 does not provide a local authority with some new or different mechanism by which to obtain an interim care order.

[73]Mr Tolson is, in my view, correct in submitting that the local authority s 7 report, including as it did the settled conclusion that proceedings under Part IV CA 1989, should be issued with respect to M, fully satisfied any direction under s 37 requiring the authority ‘to undertake an investigation of the child’s circumstances’ and ‘to consider whether they should apply for a care order with respect to the child’ [CA 1989, s 37(2)(a)]. The question is whether the judge’s use of s 37 in those circumstances to trigger the court’s jurisdiction under s 38(1)(b) to make an interim care order was in some manner impermissible.

[74]In circumstances where, as I have held, the judge was justified in holding that this child’s safety required immediate protection by means of compulsory removal from her home, a submission that the procedural path chosen by the judge was technically not available to her is only likely to succeed if there is no escaping the procedural points that are made. This is not such a case. The course adopted by the judge is not excluded by any provision in the CA 1989, the FPR 2010 or elsewhere. Mr Tolson accepts that, in an emergency, the court is not required to follow the pre-proceedings protocol in PD12A. He accepts that if an application had been made either for an emergency protection order or an interim care order it would either be commenced in, or transferred immediately up to Parker J in, the High Court where these long running proceedings were pending (Allocation and Transfer of Proceedings Order 2008, Art 5(3)). Given that M was a ward of the High Court, the local authority would in any event require Parker J’s permission before making an application for an emergency protection order or an interim care order and, before such an order was granted, Parker J would have to order the discharge of the wardship. Whilst in another case, of course, the alternative steps that I have described could be taken, the fact that an alternative route exists does not mean that the s 37 route chosen by the judge was impermissible. To my mind, the legal requirement for the case to come before Parker J before any application for a public law order could be made, demonstrates the arid nature of the appellants’ technical challenge. Mr Tolson does not submit that Parker J could not have made an interim care order on 14th December or that, if the situation was properly regarded as an emergency, she could not have done so despite non-compliance with PD12A; his submission is simply that a different route should have been followed. It would, in my view, have been permissible for Parker J simply to have made the interim care order upon the local authority undertaking to issue their application that afternoon or the following morning. Finally, if the October s 7 direction had been made under s 37 (as a number of previous directions had been) no jurisdictional issue would exist. In the unusual circumstances of this case, I am entirely satisfied that Parker J, who had concluded that M’s safety required an immediate order, was justified in using s 37 to achieve that outcome.

[75]In relation to the without notice hearing, Mr Tolson accepts that a judge, if the circumstances justify such a course, may make a holding order to protect a child at a without notice hearing pending further consideration at a hearing attended by all of the interested parties. He submits, however, that that was not the course of events on 14th December. The appellants’ case is that the judge had made her final decision at the without notice hearing and the on notice process that immediately followed was one in which the judge was looking to Mrs S to justify why the interim care order should be discharged so that M would be returned to Mrs S’ care with the result, submits Mr Tolson, that the burden of proof shifted, wrongly, to Mrs S.

[76]There is some foundation for Mr Tolson’s submission on this point to be found in the transcript of the on notice hearing where, at the start of hearing submissions from Mrs S, the judge said to her ‘are you asking me to return M to you?’ But that short extract is, I believe, the high point of the appellants’ case. From the detailed record of the progress of the two hearings that is now available it is plain that the order resulting from the without notice hearing was no more than an order to hold the situation and protect the child pending consideration of whether that protection should continue at the on notice hearing which immediately followed. Of course the situation in which Mrs S found herself was far from ideal, with the s 7 report only being handed to her at or a short time before the start of the hearing and with her gaining an understanding of what was proposed as counsel for the local authority explained matters to the court. That difficult situation was, however, generated by the high level of judicial concern, which I have held was justified, over Mrs S’s likely actions and reactions if she had been given advance notice in an attempt to follow a more ordinary and open process.

[77]Once the on notice hearing commenced, I consider that Parker J did all that she possibly could to ensure that Mrs S understood what was being proposed and why, and to permit Mrs S to have her say about these important matters. Indeed, as I have already indicated, Parker J went far further, and showed much more tolerance of Mrs S’ totally uncontrolled and unacceptable behaviour than the judicial role required. In particular the judge even offered to sit to hear submissions on the following day, which was a Saturday, or on Monday, which was the next working day. In the event the case was listed for a review one week later and on that occasion the judge heard full submissions from counsel instructed by Mr and Mrs S who sought the discharge of the interim care order.

[78]I do not accept that, if an interim care order was being made, there was any error in the court making the order for the full eight weeks permitted by the Act, rather than, say, making the order for one week until the review hearing. Nothing turns on that point. The yardstick to be deployed by the judge at the hearing on 21st December would be the same on either basis, namely whether M’s welfare, going forward, required an interim care order to be in place. On the same basis I do not accept that Parker J in some manner made a final care order and endorsed a long term concluded plan for the permanent separation of M from Mr and Mrs S. There is nothing in the transcripts to support such a characterisation.

[79]For the reasons that I have described, I would dismiss this appeal. Lord Justice Davis

[80]I agree Lord Justice Thorpe

[81]I also agree

L (A Child), Re [2013] EWCA Civ 179

The judge found (paragraph 86) that:

the judge states as follows:

the judge sought to explain the situation and is noted as saying:

Cited in 2 later judgments