England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PETERBOROUGH COUNTY COURT
(sitting at the Cambridge County Court)
(His Honour Judge O'Brien)

		Royal Courts of Justice Strand London WC2 Monday 10th September, 2001

1. LORD JUSTICE THORPE: There are proceedings in the Cambridge County Court brought by Peterborough City Council in relation to D M, who is the four-year-old child of R, herself only 21. He is the grandchild of Mrs M W, who currently cares for him in collaboration with her present husband, the step-grandfather. Of course within the proceedings D has a guardian ad litem, whose appeal is before this court this afternoon.
2. Unfortunately, R has a considerable history of drug abuse and care proceedings in relation to D were issued at a comparatively late stage in his life, namely on 6th June 2001. Proceedings were issued in the Cambridge Family Proceedings Court and an interim care order was made by consent in that court to run until 30th July 2001. The parties were all content that that was the appropriate holding order pending further investigations and assessments of the dynamics within the family, and of course crucially R's capacity to repair herself to a point at which she could provide consistent care for D.
3. On the day following the making of the interim care order the Family Proceedings Court transferred the case to the County Court. The local authority filed an interim care plan at the end of June and the parties collaborated in drafting directions which were to be put before the court for approval on 26th July. Of course that appointment was within the currency of the interim care order and it was not in the contemplation of any of the parties represented that there would be any variation in the regime fixed by the Family Proceedings Court. Nothing within the directions that had been drafted and agreed between the lawyers suggested the need for any variation of the interim arrangement.
4. When the case came before the court on the 26th it came into the list of His Honour Judge O'Brien. The guardian ad litem was not at the court because he had to attend a final hearing in another of his cases on that day. He was, however, represented by counsel. Also before the court by counsel were the local authority and the mother, R. She herself was not at court. Conversely, Mrs W was at court, but her solicitor was not. That was perfectly understandable because it was an uncontentious hearing for directions and Mrs W is a person who is not eligible for legal aid on financial grounds, but whose financial circumstances hardly permit the instruction of lawyers in expensive proceedings on a privately funded basis.
5. The order made by the judge was on any view a surprising order. He provided from the agreed directions only one, namely that R file and serve a statement by 16th August. He then said that D should shift from the neutrality and the safeguard of an interim care order to an interim residence order in favour of Mr and Mrs W, and he provided that the application for the renewal of the interim care order due to be heard on 30th July should be refused. He also said that the interim residence order should be subject to a condition that the grandparents should comply with conditions as to contact between D and his mother as set by the local authority and that there should be an interim supervision order in favour of the local authority from 30th July until renewal. He refused to make the direction to which all the parties had agreed that a clinical psychologist, Mrs Lindon, should be instructed to prepare a forensic report and he refused the provision for a further directions hearing in January 2002.
6. Unsurprisingly, all three counsel before the judge, namely counsel for the guardian, counsel for the local authority and counsel for the mother, applied for permission to appeal that order, which the judge refused. Accordingly it was the guardian who applied to this court for permission to appeal. A direction was given on 14th August that there should be an oral hearing on notice with appeal to follow to be listed today.
7. In the interim, both the local authority and R have by their respective counsel filed skeleton arguments supporting the guardians appeal. At the outset permission was granted and we heard counsel on two strictly practical issues: namely to which court and before which judge should future hearings go and, secondly, whether the direction for the instruction of Mrs Lindon had been sufficiently varied to reflect the views of the parties that had emerged from their respective skeletons. We indicated to Mr Cobb at a relatively early stage that we did not need to hear him amplify his excellent written skeleton argument.
8. Mrs W has obviously a difficult position in this court this afternoon. She is not eligible for legal aid and she cannot afford to instruct a barrister privately. So she has taken the sensible step of getting her solicitor, Mrs Thompson, to put in written form what is essentially a skeleton argument. In that skeleton argument she makes the very important point that since the judge made his order on 27th July things have gone very well for the family. D has been safe in their home and accordingly she has, as it were, grown into the interim residence order made by the judge and would prefer to see it stand. She also makes the point that in so far as there has to be a psychologist's assessment, she feels that it should be directed towards problems surrounding her daughter and her former husband, rather than focusing upon herself and her present husband.
9. It is important that we should this afternoon recognise the importance of the contribution that Mr and Mrs W are making to D's present welfare. Nothing in this judgment in any way puts a question mark upon the excellence of the care that Mr and Mrs W are presently providing. The reality is that the appeal raises only points of law and since this is essentially a court of law it is our function to evaluate those points on their legal merits. I have to say, and I think Mrs W accepts, that all four of the points made by Mr Cobb are hard, if not impossible, to answer.
10. His first point, and it is an obvious one, goes to the procedure and the procedural defects of the judge's conduct of the directions hearing on 26th July. Of course an experienced Circuit Judge sitting in the public law field is never a rubber stamp and may always refuse to make an order that the parties have agreed if he considers that it is not in the interests of the child to make that order. Equally, the judge has a very broad discretion as to the conduct of contested proceedings and decisive judicial intervention to short-circuit unnecessary investigation, assessment or forensic proceeding is of the utmost importance. But before imposing some completely different order on parties at a hearing which was not designed for the review of the order in force, the judge must at the very least give the parties a proper opportunity to make representations and in most situations to call evidence. What the judge did on this occasion seems to me to have denied the mother and the guardian ad litem those elementary rights. What he did was at a directions hearing during the currency of an order made by the Justices, an order to which all parties were ready to consent at its next renewal. Not only were two of the parties prejudiced by the judge's order not present, but the parties in whose favour his order went were not represented, for the obvious reason that the grandparents' solicitor thought it unnecessary to attend an uncontentious directions hearing.
11. My Lord has asked Mrs W this afternoon whether she asked the judge to make an interim residence order in her favour and she made it plain that she did not. My Lord also asked whether the judge invited her view as to whether the interim residence order should go and she told us that he had not.
12. Mr Cobb's second point is that an interim residence order was in these circumstances plainly wrong. Here again in my view Mr Cobb is right. There was a triable issue between the mother and the other parties. On a mere reading of the papers and without hearing oral evidence and at an uncontentious directions hearing to say of the mother's case, as he did at page 3 of the transcript:

"This Mother is a hopeless drug addict, currently on heroin among other drugs."

seems to me to prejudge some of the most fundamental issues that the parties were seeking to prepare for trial. Equally, to say of the grandparents' case, as he did at page 2 of the transcript:

"It seems to me that any sensible reading of these papers indicates the very, very strong likelihood that at the end of the day this Child will live with Mr and Mrs [W], probably under the aegis of a residence order made to them."

went far beyond any discretion to exclude empty issues.

13. Furthermore, the order overrode the guardian's advice, when he was not present and had no reason to suspect his opinion was under scrutiny. He was criticised by the judge at page 4 of the transcript in these terms:

"I am sorry to have to say it, but I can only see the attitude in this respect of the Local Authority and Guardian Ad Litem in requiring a psychologist as being one of covering their backs."

14. That criticism was made without giving the guardian any opportunity to defend his professional position.
15. Finally, the judge gave no explanation for rejecting the guardian's opinion, beyond perhaps his conviction that he, the judge, knew what was the inevitable conclusion of any trial.
16. Mr Cobb's third point is that as a matter of law it was not open to the judge to attach the condition to the interim residence order. In the transcript he said this at page 4:

"It seems to me that the correct order in this case is that there should be an interim residence order to Mr and Mrs [W] and that there should be a condition attached to that order that contact for the child with the Mother and with Mr [C M] should be at times and periods and in circumstances agreed with Peterborough Social Services."

17. Mr Cobb's succinct submission in relation to that is to be found at paragraph 4.2 of his skeleton argument, where he says that a judge has no power to impose obligations or conditions upon persons who are not listed in section 11(7)(b) of the Children Act 1989. He refers to the decision in Leeds City Council v C [1993] 2 FLR 802. I have no doubt at all that Mr Cobb is right in that succinct submission.
18. Finally, Mr Cobb says that the judge's refusal of leave to instruct the clinical psychologist was plainly wrong. Of course such a discretion is an important judicial discretion, but on the facts of this case, at such an early stage, knowing nothing of the case but what he had read, and in the face of universal agreement that an expert's opinion was wanted, the judge was in my opinion plainly wrong to have refused. Obviously, that conclusion is limited to the facts and circumstances of this case as I have described them in dealing with Mr Cobb's earlier submissions. It is not to be taken as any sort of fetter on the trial judge's discretion to curb the proliferation of investigations and reports where they seem to him to be unnecessary or unhelpful to the future resolution of the issues. But this is a plain case in which in all the circumstances the judge should have endorsed the proposal that had been agreed between the parties.
19. In my opinion Mr Cobb succeeds on all four grounds of his notice. I would accordingly propose that the order of 26th July be set aside, save perhaps as to its first paragraph, and that in its stead the several paragraphs that had been agreed by the parties and presented for the judge's approval only varied to reflect improvements which have emerged during the preparation for this appeal.
20. I would also set aside formally and consequentially the order made by Judge Sennitt on 31st August. All he did was to postpone the listing for 4th September to 2nd October in recognition of the imminence of the hearing in this court. But obviously there will be no need for a hearing on 2nd October. That is entirely consequential on the order of 26th July. If the order of 26th July falls, so must the order of 31st August.
21. MR JUSTICE WILSON: I agree.
ORDER: Appeal allowed and the orders of 26th July and 31st August 2001 set aside; counsel to lodge a draft minute of order; order for a community legal services funding assessment of the guardian and the mother's costs. (Order not part of approved judgment)