England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH AND POOLE COUNTY COURT AND FAMILY COURT
(HIS HONOUR JUDGE DANCEY)

		Royal Courts of Justice Strand London, WC2A 2LL
		28 July 2016

1. LORD JUSTICE McFARLANE: This is an application for permission to appeal brought by a Local Authority following a determination made by His Honour Judge Dancey on 14 July 2016, that determination being to decline to list the Local Authority's application for an interim care order in care proceedings which had started only a very short time before.
2. The proceedings relate to a young boy, A, who is now just over six years of age. He has had the most unfortunate start in life, partly as a result of a cocktail of challenging medical conditions which leave him developmentally compromised, exhibiting behaviour which is challenging for him and for those charged with caring for him, and other health difficulties. As if that was not a list of problems that would be enough for any young child, this boy was the victim of a physical assault by his father when he was only a year old. That assault led to contested care proceedings conducted before His Honour Judge Bond, who found as a fact that indeed A had been the victim of non-accidental injury at the hands of his father, that finding being made as I understand it in August 2012.
3. A was rehabilitated to the care of his mother. There was a supervision order for a period, and for a period A's contact to his father was supervised. That state of affairs, namely the supervision of contact, was relaxed after a period so that since August 2015 A has been seeing his father regularly and since that time staying overnight.
4. One such overnight stay took place on the weekend of 2 and 3 July this year. During that time, it seems that A spent the afternoon of one of the two days with his father attending a local fair. The weather was hot. It is said that during the course of the day the father sent a text message to the mother saying to the effect that it is a good job the boy is not wearing socks because his feet are very wet. When he was returned to the mother's care on 3 July, she noticed that his feet seemed to be very blistered. She kept him off school the next day, which was a Monday, and also the following day, a Tuesday, and it seems that the blistering certainly did not improve; if anything, on an account we have read, it seemed to deteriorate.
5. Either on her own behalf or at the coercion of the school she came to send him to school on the morning of 6 July, the Wednesday. The school readily saw that the boy's feet seemed to be in a very bad state; when a sock was removed, the blistering began to bleed, and so the mother was asked to take A to the local accident and emergency unit. She readily did that and he was an inpatient in hospital for a period whilst the apparent injuries to his feet were treated. He was also found on examination on admission to the hospital to have a number of bruises to his shoulders and around his trunk, a probable or a possible bruise to his cheek, and a bruise to his forehead.
6. There was therefore a level of heightened concern generated by these various presentations. The Local Authority issued an application for a full care order, within that an application for an interim care order, and within that an application for an emergency protection order. The court heard the emergency protection order application on the afternoon of Friday, 8 July. The case was heard by Judge Dancey, and it is plain from his judgment that he and all of the professionals involved committed themselves to concluding the process, so that he did not begin to give his judgment until shortly before 8 o'clock that evening.
7. Given that it is an ex tempore judgment given at the very beginning of proceedings, it is a comparatively full document. In that document, the judge rehearses his conclusions, preliminary though they must have been at that stage in the proceedings, given that the medical evidence available was necessarily limited and he only had a limited opportunity to hear from the parents and from the social workers. So far as the presentation of the injury to the feet is concerned, he said this:

"So far as this injury is concerned, it really does not look to me like a non-accidental injury."

Later in the same paragraph he says, discussing the child walking around in the heat without socks:

"Perhaps unwise, but not a non-accidental injury situation. The worst I think that could be said about this is the failure to seek earlier medical attention."

8. So far as the bruising is concerned, on that occasion the judge concluded that there may well be an explanation provided by the parents as to the way in which this young boy moved around and behaved generally and came to be injured. The bruising to the forehead was said by the father to have occurred when the child ran into and struck one of the stalls in the market.
9. At the conclusion of that process, therefore, the judge was not persuaded that there was a substantial risk of immediate harm to the child. The judge was also concerned that this child with his complicated needs was in the primary care of his mother, against whom there was no direct allegation of assault but against whom an allegation of failure to obtain medical treatment was made, that that boy in that circumstance should not be separated from the mother unless it was very clear that he was at risk of significant harm in her care at that time. So the judge refused the emergency protection order.
10. Matters moved on and the Local Authority, as indeed did the other parties, appeared before the judge at a case management hearing which took place on 14 July, some six days later. As well as making directions setting up the final hearing of the case in November of this year and the instruction of experts, the judge was asked by the Local Authority to hear an application for an interim care order. The Local Authority suggested that some two days should be set aside for that.
11. It is plain that in the course of making that application, counsel for the Local Authority, Mr Ward-Prowse, who appears before us today, led on this occasion by Mr Rex Howling QC, set out his stall as it were by drawing the judge's attention to information that had come to the Local Authority since the hearing on 8 July. That information fell into at least two categories. One was that there had been further discussion between the dermatologists at the local hospital and that there was some further clarity as to the possible diagnosis of the manifestations that had been seen on A's feet. That discussion in fact had taken place on the morning of 8 July, but had not been communicated to anybody at court in the course of the day. The second category of information was that, on an occasion between the two hearings, the social worker had attended A's school and had questioned him as to how he had come to receive these apparent injuries to his feet. The court had information from the social worker in a detailed statement about that.
12. In short terms, the judge refused the application to list the interim care order application. He said this in the very first words of his judgment:

"I am not going to list this case for a contested ICO, not at this stage. This obviously is a case management decision, applying the overriding objective. What I have particularly focussed on today in making this decision is two things. The first is that, although it is a different application, it is an application for an interim care order which is not the same as the application that was before me on Friday for an emergency protection order, the test for removal would be very similar, that is to say there is an imminent risk which demands separation of A from his mother. I say his mother because of course the father would only have supervised contact. I would require a very similar test to either application.

Secondly, is there any new information that has come to light since my decision on Friday which makes it necessary in A's best interests to have a further contested hearing at this stage? What we really have is first of all some further evidence from a dermatologist casting some doubt upon the explanation that is given by the parents about the injury to the feet but still nothing more than some exogenous (that is to say external) cause without anything further. So we are not much further forward in reality than we were on Friday in that respect."

Then the judge goes on to make some adverse comments as to the process adopted by the social worker in questioning A, and he summarises that point by saying:

"We then have A's own explanation which is inconclusive, and, I have to say, obtained in circumstances which might cast doubt on the reliability of the evidence."

13. So in short terms the judge concluded his judgment to the effect that at that stage, and he was keen to stress that he was making a decision at that date on the information before him, he was not satisfied that the interim care order application should be listed for hearing.
14. The Local Authority seek permission to appeal against that determination. Their notice of appeal was filed I think last week and the papers came before me on Tuesday of this week. Understanding the issue, involving an interim care order and a young child, and the need for it to be resolved promptly, I directed that the matter should come for a hearing before the full court for permission to appeal to be considered, and the appeal to follow immediately if permission is granted, today, some two days later, and we are very grateful to everyone involved, not just counsel in the front row, but also more particularly those who sit behind them, who have no doubt rearranged their diaries to make sure that all the necessary paperwork is before the court and that we have been engaged in submissions from counsel fully instructed in the case during the course of this short hearing.
15. I propose to say little in this judgment as to the merits of the judge's appraisal of the evidence. It does appear that, as is almost inevitable in the beginning stages of an investigation into manifestations which are not medically straightforward, the information from the doctors involved is developing as time goes by. We have been told of yet further information that has become available since the hearing before the judge on 14 July. There is to be the instruction of a range of experts in the proceedings as a whole and it seems to me that the sooner that process moves forward the more A's best interests will be served by the hope that some clarity will be achieved, and the more it will be easy for all involved to identify what the best plan for him in the future should be. So it is therefore not my intention to second guess or criticise the conclusions on the evidence before him that the judge came to. Points are made by the Local Authority, but for my part they are not necessary to determine the outcome of this appeal.
16. I therefore approach the matter on a straightforward basis as a matter of procedural structure and law. The point can be taken very shortly. The judge on 8 July heard the case as an application for an emergency protection order. It does seem that he may have gone into it in more detail than might typically be the case for an emergency protection order application, but be that as it may, that procedurally was the application he determined and refused.
17. As is well known, the Children Act 1989 section 45(10) provides that no appeal lies from the making of, or in this case the refusal to make, an emergency protection order. So a Local Authority who are concerned at the outcome of a case where an EPO is refused have no remedy in terms of appeal against the judge's determination. That that is so may well be because the Local Authority always have, if they consider it to be justified, the ability to apply for an interim care order from which of course there is an avenue of appeal, and that is what the Local Authority did.
18. The judge, as I have indicated, simply declined to hear that application. So they are without an avenue of appeal against the judge's determination on the merits of the case. By that I mean on the question whether there is sufficient evidence to satisfy the interim threshold criteria, and secondly on the all important question of whether the evidence is sufficient to establish an imminent risk of serious harm to the child. So the Local Authority have no avenue to challenge that outcome.
19. The judge described his decision not to hold the interim care order hearing as a case management decision, and in one respect it might be said to be that, but it was a decision simply not to entertain a hearing for an application which, of its nature, is one that, if it is going to be heard, requires hearing promptly; it is an interim remedy sought on behalf of a child in child protection proceedings by a Local Authority. Simply to hold that the court is not going to hear such an application seems to me to be a questionable outcome. The more conventional approach would be for the judge either to hear the application and grant it, or hear it and dismiss it, or, if necessary, adjourn it for a short time so that a hearing can take place and then either a grant or dismissal or the grant of an interim supervision order, for example, can take place, and then any party who is aggrieved by the outcome of that process has an avenue of appeal.
20. But that simply did not happen here as a matter of structure, and I think that inadvertently that is where the process went wrong. If, as might be the case, the judge had actually heard the application on 8 July as an interim care order application, then his decision not to hear another application for an interim care order six days later would indeed be a case management decision, and unless there really had been a significant change in the evidential matrix before the court, it would be very difficult for a Local Authority to challenge a judge's case management decision not to allow relitigation of substantially the same issue six days later.
21. But that was not the procedural course that was followed, and for the reasons I have given, that denies the Local Authority the opportunity of an appeal, and for that reason and for that reason only, I consider that this is a good appeal made on behalf of the Local Authority, I would grant permission to appeal, and I would go on to allow the appeal.
22. That does not of itself lead to the granting of an interim care order. It will be a matter for the Local Authority now whether they wish to reconvene a hearing before a judge and seek once again for there to be an interim care order. It is also not the case that just because a Local Authority say they want two days for an interim care order to be litigated that the court has to accede to that. The length of the hearing, and the amount of time proportionately to be applied to it, is very much a case management decision and one to which the overriding objective in the Family Procedure Rules applies, and so nothing I say is intended to either force the Local Authority to make an application that it would not otherwise wish to make or tie the hands of the judge who is to be the recipient of that application in due course. If the Local Authority wish to apply for an interim care order after today, then of course they can.
23. The question arises as to whether that should come back before Judge Dancey or a different judge. There are difficulties, mainly practical ones, one way or the other. There is obviously limited judicial resource available in this area of the country at any one time and there is a premium to be attached to the same judge keeping hold of a case, particularly if that judge is to be the judge earmarked to conduct the final hearing.
24. Although the Local Authority say, and I can understand the submission, that they are concerned that this judge, Judge Dancey, may have gone too far in expressing a concluded view on the merits of their application, I am not persuaded that that is the case. This is an experienced family judge, well versed not only in the substance of family law but in the need for a fair process. I am confident that if the case goes back to him to rehear an application for an interim care order, he will do that and that he will produce a judgment at the end of that process on the information that is before him on that occasion and address both the law and the substance of the case as he sees it on that occasion.
25. So I do not accede to the application, if it is an application, to direct that the case should go before a different judge; rather, I would urge the parties to achieve a listing before Judge Dancey for any interim care order application in the future. After all, he himself kept the door open for that to happen in the words of his second judgment.
26. But for the reasons I have given, I would allow the appeal and set aside his refusal to list the interim care order application.
27. LADY JUSTICE KING: I would agree and simply add that as my Lord has said, emergency protection orders do not carry with them a right of appeal, for reasons which we all understand. In the event that an emergency protection order is not granted, local authorities may if appropriate seek an interim care order which often is accompanied by more extensive evidence, or, more commonly these days, is the first port of call to the court.
28. Parents are protected, rightly, by the very high test that is applied by judges before a child is removed following the making of either an emergency protection order or an interim care order. Equally, however, where a Local Authority has a real concern that a judge may have fallen into error in failing to grant a protective order following a child having been injured, it is in my judgment imperative that that Local Authority, to meet its statutory duties, is able to bring the matter before this court or another court by way of appeal in order to allow the failure to grant a protective order to be reviewed.
29. For those reasons I would agree with my Lord, Lord Justice McFarlane that this judge fell into error not necessarily by the decision he made in its totality as to whether or not this child should be removed, which we are not concerned with today, but in failing to hear the matter and give a reasoned judgment which would allow the Local Authority, if they remained concerned, to seek review by this court.