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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (A Child) [2007] EWCA Civ 371 (28 March 2007)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/371.html
Cite as: [2007] EWCA Civ 371
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION, PRINCIPAL REGISTRY
(HIS HONOUR JUDGE PAUL COLLINS CBE, sitting as a judge of the High Court)
(LOWER COURT NO. FD07C00109)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE WILSON
and
LORD JUSTICE MOSES
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| IN THE MATTER OF S (a Child) |
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MISS J DE ZONIE (instructed by the Royal Borough of Kensington and Chelsea) appeared for the local authority.
MR A McCORMACK (solicitor advocate in practice at White Ryland) appeared on behalf of the father.
MISS J PROBYN (instructed by Osbornes) appeared on behalf of the child by her Children's Guardian.
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- The mother appeals against orders made in proceedings under the Children Act 1989 ("the Act") by HHJ Collins CBE sitting as a deputy judge of the High Court, Family Division, Principal Registry on Friday 16 March 2007. It was the judge himself who gave permission for her to do so. The proceedings relate to a female child, N, who was born on 24 October 1995 so is now aged 11. In the proceedings the Royal Borough of Kensington and Chelsea ("the local authority") are the applicants; the father of N, who is separated from the mother, is the second respondent; and N herself, acting by Ms Brooke, her Children's Guardian, is the third respondent.
- The orders against which the mother appeals are an order that N should be committed to the interim care of the local authority for a period of 28 days and an order, or more strictly a direction, under section 38(6) of the Act that N should be subject to a psychiatric assessment as an in-patient in the Child and Family Psychiatric Unit at Collingham Gardens, South Kensington, for 14 days beginning on Monday 19 March 2007. Execution of the judge's order and direction has been stayed pending determination of this appeal. The judge also provided for a further hearing to be conducted by himself by way of review on 30 March 2007.
- The three other parties to the proceedings whom I have identified are respondents to the appeal. The father supports the mother's appeal. So does the child, acting by her Guardian. The local authority, by Miss De Zonie of counsel, tell us today that they do not feel that they can resist the appeal. In those circumstances there is no need for me to deliver a long judgment. I will soon be proposing to my Lords that we should indeed set aside the orders of the judge and direct a further urgent hearing of the local authority's applications.
- Very shortly put, the background is that N together with two younger sisters lives with the mother in Lancaster Road, off Ladbroke Grove. The father lives in Chelsea. The local authority have become increasingly concerned over the last few months about the state of N's mental health. She underwent an assessment in November/December 2006, first at the Parkside Clinic, which is in Lancaster Road itself, and then at the unit in Collingham Gardens to which I have referred, which led to a unanimous conclusion that N might be suffering a serious psychotic illness and was showing a variety of symptoms indicative of that. The consultant and adult and adolescent psychiatrist at the Parkside Clinic, Dr Wannan, led the attempted dialogue with the mother, including indirectly by letters to her GP and to the local authority, with a view to persuading her that N's situation was, or might well be, so urgent that she had to be assessed and that the appropriate place of assessment was the unit at Collingham Gardens. The mother showed considerable resistance to the increasingly urgent calls for N to be assessed at the unit. In particular, when she was told that the proposal was for an in-patient assessment of N at the unit, which would require N to spend four nights each week there, she expressed herself as strongly opposed to it. The family is by ethnicity Iranian and has only lived in the UK for about four years; and it may be that it was in part the socio-cultural norms of the Iranian community, in particular in its attitude to mental illness, which led this clearly loving mother to have great difficulties in facing up to the advice which was, with increasing urgency, being given to her.
- Another complicating feature is that the mother herself has been suffering from depression, has been prescribed anti-depressants and, so it is said, has not recently been taking her medication. The local authority have been involved with the family from last summer onwards and they have been closely involved, mainly as conduits of the dialogue between the doctors on the one hand and the mother on the other. In February and March 2007 they became increasingly concerned that, by her resistance to the proposed assessment, the mother was seriously prejudicing the chance that, were N to be suffering an illness, she could receive the necessary early treatment therefor.
- One very good and appropriate idea, I believe an idea which came from the local authority, was that the mother should receive a second opinion, and in particular a second opinion from a psychiatrist with ethnicity analogous to hers. In that regard Dr Saedi of the Edgware Community Hospital was located; and an extra advantage of his contribution beyond his ethnicity has been that he speaks Farsi, being the language in which the mother is most fluent, even though she now has some command also of the English language. Dr Saedi was instructed to give a second opinion earlier this month, March 2007. Initially his opinion was that, while N needed to be assessed, it would be appropriate for her to be assessed as an out-patient, rather than as an in-patient, at the unit in Collingham Gardens. It should also be said that at one stage the unit itself appeared to accept that an adequate if not perhaps an optimum assessment of N could be made by it on an out-patient basis.
- Nevertheless, as the weeks of March proceeded, the local authority became concerned that the mother was still not committing to the necessary proposals for assessment; and ultimately they took proceedings for a care order. They issued the proceedings, as they were required to do, in the Inner London Family Proceedings Court. Thence the proceedings were transferred, first up to the Principal Registry of the Family Division, which is circuit court level, and then, on the morning of 16 March, up to the High Court, Family Division. The local authority had secured transfer upwards from circuit court level to High Court level because they aspired to persuade a High Court judge to exercise his inherent jurisdiction to direct not only that N should be assessed at the unit -- that could be achieved by the statutory powers given to the circuit judges -- but that she should receive treatment at the unit. They took the view, in my view correctly, that such was an order which could be made only pursuant to the High Court's inherent jurisdiction.
- The matter came in controversial circumstances before HHJ Collins at about 3pm on 16 March, he sitting, as I have said, as a judge of the High Court. Notwithstanding the late hour, counsel then appearing for the local authority sought to persuade the judge to make orders there and then that N should be committed to their interim care and should be directed to undergo assessment and receive treatment at the unit at Collingham Gardens. Had this matter not been able to be resolved today almost by agreement, it would have been necessary to dwell at length on the departures from normal procedure which are evident in the way in which that hearing was conducted. It is clear that this very experienced circuit judge, who often sits as a deputy judge of the Family Division, took the view that it was in the interests of N that he should act with great robustness and that the matter was so urgent that no adjournment, however short, could be tolerated.
- Thus the position was that without the parents having realised that they might be facing an application that these orders should be made on that very day; without their having put witness statements before the court; without the guardian having had time to see N, or even to interview the parents other than, I suspect, fleetingly in the precincts of the court; without there being an interim care plan set before the judge; without the filing or service of a document by the local authority in which they sought to explain how they argued that the threshold to the making of an interim care order was crossed; without any of these conventional safeguards, the judge was persuaded to make orders there and then: first an interim care order and then the order that, on the following working day, namely 19 March, N should be admitted for assessment pursuant to a direction under section 38(6) of the Act to the unit at Collingham Gardens.
- It follows from that brief summary that Miss Branigan QC, who today appears on behalf of the mother, had numerous arrows in her quiver with which to aim at the orders which the judge made. But I would identify one area in particular in which, so it seems to me, the hearing before the judge went awry. The fact is that Dr Wannan and Dr Saedi had met and discussed matters in the precincts of the court that morning. Although a note of their discussion was taken, it was unfortunate that they were not invited there and then to sign a memorandum of the areas in which they agreed and disagreed. It is clear that in one regard Dr Saedi moved to the stance of Dr Wannan: for it seems that he was prevailed upon to accept that an out-patient assessment of N at the unit was really not even adequate. In another area, however, the two doctors were not ad idem: for whereas Dr Wannan took the view that N's condition had about it an urgency which required orders to be made there and then, Dr Saedi took the view that the consent of the mother to whatever N's assessment and treatment was to be was so valuable from the point of view of their likely success that he wished to invest a few extra days in seeking to persuade the mother of the merits of an in-patient assessment; so for that reason Dr Saedi opposed the making of any substantive orders there and then.
- It is fair to say that counsel then appearing for the local authority did explain that revised area of disagreement to the judge. Sadly, however, it did not figure in the judge's judgment; and the judge went on to find, without considering Dr Saedi's view -- Dr Saedi actually having had for some reason to leave court by that stage -- that it was essential that orders be made there and then and that all the normal safeguards should be by-passed. There, then, was one expert who did not subscribe to that view; and his non-subscription to it was not considered by the judge. That seems to me to be, of all the various arguments which would have been canvassed before us by Miss Branigan, the most potent argument for saying that the judge's orders should not have been made.
- It had been believed by the parties' advisers at one stage yesterday that there was by then a limited consensus between the doctors, the local authority, the parents, and the guardian as to the optimum way forward and that by consent, without orders needing to be made, the parents would allow N to be the subject of assessment at the unit in circumstances which, at any rate for the short term, were acceptable to the unit, the doctors, the local authority and the guardian. That, unfortunately, seems to have been a misunderstanding of the position; or alternatively it may be that what was an agreement yesterday is not an agreement today. I need not go into the details of that purported agreement. The fact is that there is now no agreement on the way forward and we are entirely unclear, nor should we have been told, about, in particular, the present stance of Dr Saedi. He had been arguing for a few extra days beyond 16 March before any order should be made. Those days have elapsed. Whether he now fully allies himself to the views of Dr Wannan and of the unit, or whether he has some independent line, is a matter unknown to us.
- In the light of the fact that the local authority consider that they cannot defend the judge's orders I propose, as has already been canvassed with counsel, that the orders of the judge should be set aside so that, with a clean slate, a full judge of the Division should, as a matter of urgency, consider the local authority's applications for an interim care order and for the exercise of the inherent jurisdiction so that N can be treated, as well as assessed, for a period of time at the unit in Collingham Gardens. To my pleasant surprise I have been told that the Clerk of the Rules of the Family Division is able to make available for this case the attentions of a full judge of the Division over the whole of the day after tomorrow, namely Friday 30 March. We have been told that Dr Saedi can attend on the morning of that day. That is good news. We have been told that Dr Rose, who would be one of the proposed clinician psychiatrists at the unit at Collingham Gardens, can attend that day. That is also admirable. We do not yet know whether Dr Wannan can attend that day. We believe that he is going on holiday only at the following weekend and therefore should be in London; and I very much hope will be able to re-organise his schedule so as to be able also to attend.
- Be that as it may, I propose that the appeal should be allowed; the orders set aside; and the matter remitted for hearing on 30 March.
- I agree.
- I also agree.
Lord Justice Wilson:
Lord Justice Buxton:
Lord Justice Moses:
Order: Appeal allowed.