England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(His Honour Judge Bartfield)

		Royal Courts of Justice Strand London WC2 Tuesday, 8th May 2001

1. LORD JUSTICE THORPE: This is an appeal from a care order made by His Honour Judge Robert Bartfield on 26th January sitting in the Sheffield County Court. The order is in respect of SC, who is 8 years of age and who has a younger brother R, who is 6. The parties to the proceedings were the local authority, the applicant, the first respondent mother, the second respondent maternal grandfather, the third respondent father, and the guardian ad litem for the children. Since this appeal relates only to S, the parties before the court today are the first and second respondents, both represented by Miss Swindell QC and Mr. Hajimitsis, and the local authority is represented by Miss Williams. Mr. J has excused himself from attending and the guardian supports the local authority's opposition to the appeal.
2. I can state the outcome of the appeal briefly since much turns on the fortuitous chronology of the closing stages of what was a difficult case. The application was opened on 15th January and evidence given over the course of five days. On the 20th submissions were made for the first and second respondents. There was a brief adjournment to the 26th when submissions were made for the guardian and the applicant local authority. On that day the judge announced that in respect of S he granted the application for a care order, for reasons which he would reserve to a further hearing on 12th February. The basis for the judge's order of 26th January was that, in implementing the care plan, the local authority would place S in a foster home in Sheffield. There was also an underlying foundation that R would probably be cared for in an institution, the judge making no care order in respect of him on 26th January but adjourning his case over for further evidence and submissions on 13th February. In the event, the local authority shifted their plans for excellent reasons.
3. By the morning of 12th February, when the parties reassembled to hear the judge's reasons, it had become generally known that they were moving S to a foster home in Manchester. This obviously was a matter of concern and alarm to the family who at least had anticipated that S would remain in the home town. The issue to be decided on 13th February was the subject of a report from the expert in the case, Mrs Scaife, which was signed on 9th February and transmitted by fax to the parties on that day or shortly thereafter. Certainly by the morning of 12th February all the parties knew that Mrs Scaife in her final report was recommending that R should return to the care of the family in the shape of GG, the second respondent's partner. The local authority did not accept that report and accordingly, and unless it was compromised, the issue would be decided by the judge at the further hearing on the 13th.
4. It is unclear whether the judge knew of this second unexpected turn of events. That he knew of the shift from Sheffield to Manchester is not in doubt. He refers to it in his judgment but overrides it as an insufficient change of circumstances to undermine the order that he had announced on the 26th. There is, however, no reference in his judgment to the possibility that R might be returning to the family fold. The absence of any reference leads me to the reasonably confident assumption that the development was unknown to Judge Bartfield. I have no doubt that, had it been drawn to his attention, it would undoubtedly have received express consideration, for Mrs Scaife had said in a report that was before Judge Bartfield in the January hearing, at paragraph 13.2:

"There would be a case for placing both children with their mother since S would find it impossible to tolerate R being there whilst being excluded herself".

5. Miss Swindell pointed out that something similar was repeated by Mrs Scaife in her oral evidence.
6. Having given his reasons on 12th February, the judge adjourned to the following day when he took evidence from Mrs Scaife. He heard from the guardian in support and he rejected the local authority's opposition, or perhaps the local authority withdrew its opposition in the face of an indication from the judge. Whichever it may be, the order in respect of R was an interim care order and the local authority stated its intention to place R with G.G. We have been told today that, while the interim care orders in respect of R are renewed monthly, there is a fixture in the court calendar for a further hearing in relation to R on 25th September.
7. The first question for decision is whether the judge was right to have moved so confidently to a full care order in respect of S on 26th January; secondly, whether he should have re-opened the position on the 12th in the light of developments in the interim and, thirdly, whether he should have reconsidered the position, in the light of the outcome of the further hearing to settle the future of R.
8. It is unnecessary in my opinion to analyze the answers to these questions more precisely than to say that there was too much flux within the scene to enable the judge to have made a full care order in respect of S. Even on the application of the authorities as they were, it seems to me that the developments of the 12th and the 13th February, taken in combination, were such as to undermine the foundations of a final care order. The traditional boundary between the full care order and the interim care order, as established by the decision of this court in Re L, is currently under review in judgments that are reserved and are likely to be handed down within the next two weeks; and a revision of the restrictions on a judge's use of an interim care order at the final hearing is almost inevitable. I would have no hesitation at all in setting aside the care order of 26th January. The only question is what should be put in its stead. Miss Swindell has persuasively asked for an interim residence order in favour of W and G. The difficulty for this court in going that far is that these children have been placed in the past with W and G and it has all proved too much. It seems to me that to place S with W is in reality to return the two children to the shared care of W and G, and that is something which should in my view be assessed by the court of trial. If the judge in the court of trial is satisfied that sufficient levels of support can be put in place to enable that to be achieved without jeopardizing the current endeavour to root R back in the family, well and good, but it seems to me that it would be a stride too far for this court to make. So my conclusion is that the order we must make in place of the order we have discharged is an interim care order. That will require monthly review, and it may be that the parties will arrange a full judicial survey of the future prior to the fixture on 25th September. If not, the 25th September is at least a safety net. But it is plain that the local authority intend to maintain the current arrangement in Manchester unless a residence order or interim residence order is made in favour of W or G. This court's jurisdiction, therefore, during the interim is to safeguard S's relationship with her mother and with her maternal grandfather through its power to order contact, including unsupervised contact, and including visiting contact and including staying contact. But we have heard no submissions in relation to the detail of that and so we will adjourn any question as to the extent or detail of contact initially to give counsel the opportunity of agreeing a package. If that cannot be done, then we will hear submissions, but any decision we take will be purely a holding position until such time as a listing can take place in the county court, to enable a judge in that court to take firm control of the way ahead. It is undesirable for this court to effectively take over management between today and the date of the next substantive hearing which may be some four months forward. It must surely be possible to arrange a hearing in the county court to determine any disagreement as to the detail of contact without any delay that would work to S's disadvantage. I would decide this appeal on that basis.
9. Miss Swindell has advanced her case persuasively on the ground that the judge's order was a disproportionate intervention in terms of the Human Rights Act. That submission may very well rest on good foundation, particularly after the unforeseen shifts that occurred between late January and mid February. Having found for the appellant on the first ground, it seems to me unnecessary to say anything on the second. That is the order I would propose.
10. MR. JUSTICE BELL: I agree.
Order: Appeal allowed as per judgment; case to be heard before a judge in the county court as soon as possible and in any event prior to the school half term; Mrs Scaife to give a written opinion not exceeding one foolscap page; public funding assessment. (Order not part of the judgment of the court)