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Re K (Children) [2012] EWCA Civ 1549

Appeal concerning the jurisdiction of the court to make sequential orders under Section 37 and 38 Children Act 1989 within private law proceedings. Secondary issue of judicial bias also considered. Appeal dismissed.

The appellants were the mother of two boys and her new husband. There had been protracted private law proceedings (whereby one child was in the care of the mother and the other with his father) during the course of which the trial judge gave directions for the relevant local authorities to undertake investigations under section 37 Children Act 1989 and for the making of interim care orders. 

The child who was with his father (who suffered a series of mental breakdowns) was placed with the paternal grandparents with whom he subsequently remained under residence and supervision orders.

The local authority concerned with the other child reported that it did not consider public law proceedings were required. The judge however, went on to make subsequent s37 directions and s38 orders. The mother disagreed with the making of such orders but did not appeal at the time, preferring instead to withdraw co-operation from the local authority.

Following one such withdrawal of co-operation, the local authority then did issue care proceedings, within which the child was placed with the paternal grandparents under a special guardianship order.

The mother appealed, citing judicial bias from the point at which the first s37 and s38 orders had been made.  The children's guardian considered (on retrospective analysis) that there had been procedural errors such as to warrant a rehearing. Issues were also raised in respect of the lack of detail in some of the judgments underpinning the making of the s37 and S38 orders.

The central issue for the Court of Appeal was the extent of the court's jurisdiction to make sequential s37 directions and interim care orders where the local authority had reported and opposed the making of further interim orders.

Lord Justice MacFarlane, having emphasised that it was for the local authority, not the court, to determine whether or not to issue public law proceedings and, having described section 37 as a "bridge" between private and public proceedings, went on to consider the relevant  statutory provisions and case law, before concluding that the court did have jurisdiction to make more than one S37 direction during the currency of private law proceedings and that it would be a question in each case to determine if "such a course is justified".

He confirmed that jurisdiction to order further s37 reports arose not only where there were relevant fresh circumstances, but also where the original direction had not been complied with or where the investigation had failed to "a significant degree to engage with the court's concerns".

MacFarlane LJ also emphasised that at each point at which the court considers exercising its jurisdiction to make such orders it must do so "with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body".

In the particular circumstances of the case, on the last occasion when such orders were made, the judgment given was deficient in that it did not spell out clear reasons why the court took a view contrary to that of the local authority and delegated the task of spelling out the supposed deficiencies in the s37 report  to the guardian and father. On that occasion, the judge had traversed the line delineating the court's role from that of the local authority and had failed to appreciate the limitations of his powers.

The error on that occasion was not, however, sufficient to undermine the conclusions of the judge as a whole. The appellants' case was based upon the judge having been biased and the proceedings thus having been unfair. MacFarlane LJ considered that, in determining this issue, the proceedings as a whole had to be considered. He found no evidence of bias or unfairness and concluded that the finding of the error (made some eighteen months previously and not appealed at the time) should not lead to the decision being set aside.

Appeal dismissed.

Summary by Katy Rensten, barrister, Coram Chambers


____________________



Neutral Citation Number: [2012] EWCA Civ 1549
Case No: B4/2012/0430

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
His Honour Judge Tyzack QC
EX11C00033

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29/11/2012

Before :
THE MASTER OF THE ROLLS
LORD JUSTICE SULLIVAN

and
LORD JUSTICE MCFARLANE
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Re:  K (Children)
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Mr and Mrs B (Appellants) in person
Mr Rupert Chapman (instructed by Leicestershire County Council legal department) for Leicestershire County Council
Ms Kathryn Skellorn
(instructed by Torbay Council Legal Department) for Torbay Council
Ms Carol Mashembo
(instructed by Boyce Hatton Solicitors ) for Dr K (father)
Mr Piers Pressdee QC (instructed by  Tozers Solicitors ) for the Children's Guardian

Hearing date : 24th October 2012
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Judgment

Lord Justice McFarlane:

1. The central question raised in this appeal relates to the extent of a court's jurisdiction in family proceedings to make sequential directions to a local authority under Children Act 1989, s 37 and, on the back of those directions, to continue to make interim care orders under s 38, in circumstances where the local authority may be said to have already discharged its duty under s 37 and where it opposes the making of further interim care orders.

2. The appeal is brought by Mr and Mrs B against orders made in private family law proceedings in the Exeter County Court relating to two boys. The boys will be referred to in this judgment as 'Tok' and 'Tun'. Tok was born on [a date in]  1997 and is therefore now aged 15½  years, his brother Tun was born on [a date in] 2000 and is now 12¾  years old. Mrs B is the mother of both boys and Dr K is their father. Mrs B and Dr K separated many years ago and Mrs B is now married to Mr B, who is therefore the boys' stepfather.

3. Both boys have been the subject of private law proceedings between their two parents since 2006.  For a substantial period of time the boys resided with their father in Devon and there were ongoing entrenched difficulties over the arrangements for contact to their mother who lives in the Midlands.  As time has gone on, two children have been born to Mr and Mrs B, a girl, I, who is now aged six and a boy, W, who is aged four. 

4. Matters have been complicated by periodic collapses in Dr K's mental health.  In particular, in April 2010 Dr K suffered a mental breakdown and both boys moved to live with Mr and Mrs B in Leicestershire.  From the start Tok's behaviour was extremely challenging and a stage was reached after some two months which resulted in Mrs B writing to the court on 7th June 2010 saying that Tok's behaviour was such that he could not stay any longer in her home with the other children.  Dr K's mental equilibrium had apparently been re-established and in July 2010 Tok returned to his care in Devon, leaving Tun in the care of Mr and Mrs B. 

5. The private law proceedings continued in Exeter and it is clear that during the second half of 2010 the rule 9.5 children's guardian appointed to represent their interests in the proceedings was asking judges (HHJ Robertshaw and HHJ Wildblood QC) to make a direction under CA l989, s37 requiring the social services in Leicestershire to undertake an assessment of Tun's welfare in the home of Mr and Mrs B with a view to considering care proceedings.  The judges declined that invitation and, by position statements dated 24th August and 19th November, Leicestershire County Council ['LCC'], who had knowledge of the family, stated that there were no issues that would lead that local authority to apply for a public law order to enable Tun to be removed from Mr and Mrs B's care.

6. Matters came to a head in early December 2010.  On 3rd December Dr K suffered a further mental breakdown.  Tok was removed from his care by the police and placed with the maternal grandparents, who also live in Devon.  On 6th December HHJ Tyzack QC made a section 37 direction in relation to Tok and granted an interim care order with respect to him in favour of Torbay Council. 

7. On 10th December Tun's case came before Judge Tyzack.  Mrs B was represented, but not apparently in attendance.  On that occasion the judge made a section 37 direction to LCC, he held that the criteria necessary to establish jurisdiction to make an interim care order under CA 1989, s 38 were established on the basis of emotional abuse in the home of Mr and Mrs B as a result of Mr B's alleged bullying and intimidating behaviour.  On that basis the judge made an interim care order with respect to Tun in favour of LCC.

8. Mr and Mrs B take serious issue with the hearing on 10th December 2010 and the orders that were made.  Whilst these orders were not subject to appeal at the time, it is Mr and Mrs B's case that from that date onwards their ability to have a fair hearing was fundamentally compromised.  They assert that the interim care order was made on the basis that if they co-operated with the social services, Tun would not be removed from their care.  Mr and Mrs B profoundly disagreed with the making of an interim care order and therefore refused to co-operate with the social services with the result that Tun was indeed removed from their care five days later on 15th December.

9. Matters apparently cooled down around the turn of the year and by mid-January Mr and Mrs B were prepared to co-operate with the social workers and in a position statement dated 28th January 2011 LCC stated that, following an assessment, their conclusion was that Tun could be returned to Mr and Mrs B's care after the next hearing, which was on 31st January.  At that hearing, however, HHJ Tyzack expressed dissatisfaction with the local authority report.  He made a further s 37 direction, and renewed the interim care order on the basis that he did not sanction Tun's return to Mr and Mrs B's home.

10. The case was once again before HHJ Tyzack on 4th March.  LCC made it plain to the judge that they were not going to apply for a care or supervision order and opposed the making of further s 37 and interim care orders. Notwithstanding that position the judge made a third s 37 direction and made a further interim care order.

11. Mr and Mrs B apparently understood that the local authority had consented to the further orders (an understanding which now seems to have been incorrect). In any event the orders made on 4th March had the consequence that Mr and Mrs B once again withdrew their co-operation with the social services in Leicester and, indeed, stated their intention to take judicial review proceedings against them (see probation officer's log for 9th March at A134).

12. So far as Tok is concerned, he had continued to reside with the maternal grandparents and, on 12th April 2011, a residence order was made in their favour supported by an interim supervision order to Torbay.

13. In Tun's case, following the withdrawal of cooperation by Mr and Mrs B, LCC issued care proceedings in the Exeter County Court.  At a contested hearing on 12th April 2011 HHJ Tyzack made a further interim care order with respect to Tun and sanctioned Leicestershire's plan which was for Tun to move from his foster carers to be placed, with Tok, in the home of the maternal grandparents.  Mrs B was represented at that hearing and attended for part of the day, but following the luncheon adjournment did not return to court.  As a result of the judge's order Tun moved to live with his grandparents and has continued to remain in their care since that time.  Mr and Mrs B are totally estranged from the maternal grandparents and consider that the placement of either boy in their care is the worst outcome.

14. By their notice of appeal Mr and Mrs B seek to challenge the orders made on 12th April 2011. 

15. Following the April hearing Mr and Mrs B seem to have withdrawn from engagement in the court and social work process but, by an email dated 24th October 2011 (C29), Mrs B indicated that she was "now resuming my involvement in the case" but stated "I am not available for a final hearing in January 2012".  By an order of 12 November 2011 the judge gave very detailed directions for the final hearing, which included extensive provision for the involvement of Mr and Mrs B. Following that the local authority filed their final documents and in early December Mrs B filed detailed responses to the local authority case.  However in an email to the court dated 16th December 2011 Mrs B stated that she "is not seeking residence or contact with Tun" (page C90).  In a further e.mail dated 28th December she stated that she had no intention of attending the hearing, which was booked for January, as she could predict what HHJ Tyzack would do and she would, instead, concentrate on appealing (page C96). 

16. At the final hearing on 13th January 2012 HH Judge Tyzack secured the placement of Tun with the maternal grandparents by making a special guardianship order in their favour.  This final order is the third of the three orders that Mr and Mrs B seek to challenge in this appeal.

17.  As I have indicated, the notice of appeal was filed on 3rd February 2012.  Whilst it specifies the three orders to which I have made reference, the appeal is in fact against the entire process that has been undertaken from December 2010 onwards.  Mr and Mrs B seek a complete re-hearing of all the issues in the case.  In addition to raising matters in relation to the court process and the orders made, they also express extreme concern for Tun's welfare in the care of his grandparents both before and, more particularly, since the special guardianship order was made in January.

18. Permission to appeal was granted by Ward LJ and McFarlane LJ in a reserved judgment handed down on 30th August 2012, which, at paragraph 18 sets out  a detailed list of the grounds of appeal ([2012] EWCA Civ 1169). In the course of that judgment I sought to draw the widely cast points that Mr and Mrs B wished to raise into a coherent list of the matters that particularly justified a full appeal hearing. The headline points in that list are as follows:

a) The making of an interim care order on 10th December 2010 was not justified in the light of two extant reports from LCC expressing the clear opinion that care proceedings were not needed in relation to Tun;

b) There was no justification for making two further s 37 directions and on each occasion a further interim care order in January and March 2011;

c) The lack of justification for the subsequent s 37 directions is confirmed by the judge's description of the two s 37 reports in his judgment of 12th April 2011 as "comprehensive and thorough";

d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm;

e) If the judge's motivation was to save Tun from exposure to the emotional fall-out within this dysfunctional family, placing him in another part of the family could not be justified and, on that basis, it would be better for him to be placed in a totally neutral environment;

f) Events since the making of the order have demonstrated that Tun is highly disturbed and out of control as a result of living in the maternal grandparents' home.

19. For the purposes of the appeal hearing the court has been greatly assisted by the provision of the complete case bundles which are supported by full skeleton arguments from each respondent together with a comprehensive chronology prepared on behalf of Torbay Council. The position of both local authorities and Dr K is that they strongly oppose the appeal. In contrast, Mr Piers Pressdee QC, counsel for the child, acting through the children's guardian, having conducted a retrospective analysis of the procedural history, submits that there have been procedural irregularities and errors of law which are sufficient to lead to this appeal being allowed and the whole case being remitted for rehearing before a different tribunal. The central submission made by Mr Pressdee is that HHJ Tyzack exceeded his powers by making repeated directions under CA 1989, s 37 and associated interim care orders which amounted to impermissible pressure upon the local authority to initiate care proceedings and to exercise its parental responsibility in a manner that accorded with the judge's views, rather than those of the social workers.

20. In support of their appeal, Mr and Mrs B are plainly in agreement with the submissions made by Mr Pressdee. In addition, in clear and measured terms, they have argued in support of the other criticisms that they make of the entire process.

21. I consider that the focus that Mr Pressdee has rightly drawn to the judge's use of CA 1989, s 37, and under it the making of a series of interim care orders, goes to the heart of the matter not only in terms of the law but also in the light of its apparent impact upon Mr and Mrs B. I therefore propose to give primary consideration to this aspect of the appeal.

22. Under CA 1989, s 31(1) an application to place a child in care or to put him under local authority supervision may only be made by a local authority or an authorised person. The role of 'authorised person' is not relevant to these proceedings. The legal context within which s 37 therefore operates is that under the CA 1989, s 31(1) Parliament has entrusted to the local authority, and not to the court, the role of determining whether or not public law proceedings in relation to a child are to be issued.

23. CA 1989, s 37 provides a jurisdictional bridge between private law proceedings under Part 2 of the Act, in which a local authority normally plays no part, and the public law provisions in Part 4. The relevant provisions of CA 1989, s 37 are:

37 Powers of court in certain family proceedings

1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances.

2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should –

(a) apply for a care order or for a supervision order with respect to the child;

(b) provide services or assistance for the child or his family; or

(c) take any other action with respect to the child.

3) Where?a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of –

(a) their reasons for so deciding;

(b) any service or assistance which they have provided, or  intend to provide, for the child and his family; and

(c) any other action which they have taken, or propose to take, with respect to the child.

4) The?information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.

5) ….

6) If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child –

(a) they shall consider whether it would be appropriate to review the case at a later date; and

(b) if they decide that it would be, they shall determine the date on which that review is to begin.

24. CA 1989, s 37(1) gives the court power to direct the appropriate local authority to investigate the child's circumstances. The authority must consider whether they should apply for a care or supervision order under s 31 with respect to the child (s 31(2)). If the authority decides to make a s 31 application then that application will be a public family law application under CA 1989, Part 4 and the bridge from the earlier private law proceedings provided by s 37 will have been traversed. The present appeal questions the position where a local authority complies with a s 37 direction by undertaking an investigation but decides not to make an application under s 31 and purports to comply with s 37(3) by informing the court of their reasons, any services that are to be provided to the family and any other action that is to be taken.

25. A significant facet of the s 37 bridge is that where a court directs that a report is to be provided under s 37 a limited jurisdiction is established by s 38 under which, depending on the facts of the case, the court may make an interim care order or interim supervision order. If an interim care or supervision order is made the proceedings will, for the duration of that order, become 'specified proceedings' under CA 1989, s 41 and the court thereby has jurisdiction to appoint a children's guardian for the child. The relevant parts of CA 1989, s 38 are:

38 Interim orders

1) Where

(a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b) the court gives a direction under section 37(1).

the court may make an interim care order or an interim supervision order with respect to the child concerned.

2) A?court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2).

3) ….

4) An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs –

(a) the expiry of the period of eight weeks beginning with the date on which the order is made;

(b) if the order is the second or subsequent such order made with respect to the same child in the same proceedings, the expiry of the relevant period;

(c) in a case which falls within subsection (1)(a), the disposal of the application;

(d) in a case which falls within subsection (1)(b), the disposal of an application for a care order or a supervision order made by the authority with respect to the child;

(e) in a case which falls within subsection (1)(b) and in which –

(i) the court has given a direction under section 37(4), but

(ii) no application for a care order or supervision order has been made with respect to the child,

the expiry of the period fixed by that direction.

5) In?subsection (4)(b) "the relevant period" means –

(a) the period of four weeks beginning with the date on which the order in question is made; or

(b) the period of eight weeks beginning with the date on which the first order was made if that period ends later than the period mentioned in paragraph (a).

6) ….

26. It is to be noted that s 38(4) limits the length of an interim care or supervision order to the earliest occurring of a number of events. In the context of a s 37 direction which does not result in the local authority issuing a s 31 application, an interim order under s 38 will come to an end on the date when whichever of the following events first occurs:

i) the expiry of the period of eight weeks beginning with the date which the order was made [s 38(4)(a)];

ii) if the order is the second or subsequent such order, the expiry of 'the relevant period' (being either the remainder, if any, of the first eight weeks after the making of the first order or four weeks) [s 38(4)(b)+(5)]; or

iii) the expiry of any court directed period varying the normal eight week period fixed for a local authority to comply with a s 37 direction [s 37(4) and 38(4)(e)].

27. The first stage of Mr Pressdee's submissions on s 37 was to suggest that the decision of Wall J (as he then was) in Re CE (Section 37 Direction) [1995] 1 FLR 26 made it impermissible for a court to order repeat interim care orders under the umbrella of a s 37 direction. The issue in Re CE was whether there was jurisdiction to continue the appointment of a children's guardian, who had been appointed during the currency of a s 37 direction, once the s 37 had run its course with the outcome that no care proceedings had been issued. Wall J concluded that where a s 37 investigation runs its course with the outcome that the local authority declines to issue care proceedings, the court has no continuing jurisdiction to maintain an interim care order with respect to the child; the proceedings will thereby cease to be 'specified proceedings' under s 41 and the jurisdiction to appoint a children's guardian will also come to an end.

28. In the course of his judgment Wall J made a number of observations (at pages 42 and 43) highlighting the inability of the court to make an interim care order in the absence of a full s 31 application made by the local authority other than during a live s 37 direction. Wall J does not refer, one way or the other, to the court having jurisdiction to make more than one single s 37 direction in a case. Mr Pressdee submits that it is therefore implicit that Wall J was working on the assumption a court does not have jurisdiction to make a second or subsequent s 37 direction. He submits that this is consistent with the use of the word 'investigation' in the singular throughout s 37.

29. Whilst the statutory analysis urged by Mr Pressdee may be arguable, I do not regard the judgment of Wall J in Re CE as being any authority on this point. It is plain from the facts of Re CE and from the judge's approach that the option of the court making a further s 37 direction (and thereby continuing an interim court order and the appointment of a guardian) simply did not arise. The s 37 direction process had run its course, the local authority had determined not to issue a s 31 application, there was therefore no continued jurisdiction to make an interim care order under s 38 and no power to maintain the guardian's appointment.

30. In Lambeth LBC v TK and KK [2008] EWCA Civ 103; [2008] 1 FLR 1229, the Court of Appeal considered a case where the local authority had responded to a s 37 direction by producing a report which solely contained evidence relating to the 'child's' age and the authority's assertion that she was not in fact a 'child'. Wilson LJ (at paragraph 29) did not regard the local authority as having yet made a substantive report in response to the s 37 direction, notwithstanding that a 'report' had been filed. The implication, and it is no more, is that Wilson LJ contemplated that a further report from the local authority would be, and could be, required by the court.

31. In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child's circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court's ability to utilise the s 37 jurisdiction to 'one shot' in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists 'where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made'. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings.

32. In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge's exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court's concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure thus:

'[The court] cannot require the local authority to take proceedings. The limit of [the court's power] is to direct the authority to undertake an investigation of the children's circumstances.' [paragraph 123]

33. Having looked at the matters of principle raised by Mr Pressdee, and having determined that a court does have jurisdiction to make more than one s 37 direction during the currency of private law proceedings and has jurisdiction to extend or renew an earlier s 37 direction if the circumstances so justify, I now turn to look at the deployment of that jurisdiction by HHJ Tyzack in the present case.

10th December 2010
34. The judgment given on 10th December 2010 in support of the first s 37 direction and interim care order is, on any view, very short and in full reads:

'I am quite satisfied in this case that the situation before me is a grave one in which the litigation has been entrained in respect of [Tok and Tun] for something like four and half years. Having heard the evidence of Dr Freedman yesterday and having read her reports and having today heard the evidence of the guardian, I should say yesterday very helpfully as well have having received Mrs Churchman's [the social worker] observations, it was not oral evidence but her observations about the situation for these boys, that the situation is one in which this court is in really no doubt at all that the criteria for s 38 of the CA 1989 are met.

Namely that in so far as [Tun] is concerned born on [a date in] 2000 now aged 10 the court at the very least is satisfied that there are reasonable grounds for believing that the threshold criteria in s 31 of the Children Act are met. Having heard Mr Ingham, the guardian, today and having read his reports it is quite clear to me that [Tun] is in a situation where he has suffered emotional abuse at the hands, probably principally of Mr B but also in respect of his mother, Mrs B failing to protect him from Mr B's bullying and intimidating behaviour.

Also there are reasonable grounds for believing that [Tun] is at risk of suffering emotional abuse in the future. The court would be failing in its duty under the Children Act in particular section 1 where the welfare of [Tun] is the paramount consideration if I did not make today an interim care order to LCC.

I have been helpfully informed that LCC will carry out an immediate assessment because it seems to me that an order is needed under s 37 of the CA 1989 requiring Leicestershire social services to assess [Tun]'s position and to come back to the court with a report in due course indicating whether any public law order is required.

I also feel that the situation is serious enough, in the light of the failure by the B's to cooperate wholeheartedly in the past with professionals such as social workers from Leicestershire and indeed this guardian, Mr Ingham, that there should be no delay in assessing with the B's will cooperate with such a s 37 enquiry.'

35. Mr and Mrs B are very critical of this judgment. As a result of the lack of detail, they claim to have asked for clarification from the judge on many occasions so that they may understand the basis upon which the order was made. A transcript of the judgment apparently only became available during the preparation of this appeal. The fact that the transcript indicates a confusion as to the name of the two boys (which I have corrected in the above quotation) has only compounded Mr and Mrs B's exasperation.

36. It is important to step back from the judgment itself and consider the wider context in which it was given, which was that the court had been immersed for over a day in professional and expert evidence from Dr Judith Freedman, a nationally respected child and adolescent psychiatrist, and the children's guardian, both of whom expressed very clearly that Tun was exposed to significant emotional harm in the home of Mr and Mrs B. Dr Freedman's report and the various position statements and reports from the guardian had been disclosed to Mr and Mrs B and indeed they were plainly aware of the guardian's previous attempts to achieve an interim care order with other judges at earlier hearings on the same basis.

37. Mr Pressdee rightly concedes that the court had sufficient evidence upon which it could properly reach the view under s 37(1) that 'it may be appropriate for a care or supervision order to be made' with respect to Tun, and to concede that there was also sufficient evidence to be satisfied under s 38(2) that there were reasonable grounds for believing that the s 31 threshold criteria were met in Tun's case, thereby opening the jurisdiction to make an interim care order. He is, however, critical of the judge's failure to set out in full and clear terms the rationale for making a s 37 report to LCC (who were not at court and not parties to the proceedings). He also draws attention to the structure of the judgment in which the judge makes the interim care order before making the s 37 direction, whereas as a matter of law the latter should precede the former.

38. In relation to the 10th December 2010 hearing I consider that Mr Pressdee's criticisms are well made. In order for the s 37 facility to be effective there is a need for the judge to communicate with the local authority in clear terms so that the social workers, who almost by definition will not be privy to the private law proceedings prior to the direction being made, may understand the focus of the court's concern. It is also obviously important for judges to work through the jurisdictional stages established by s 37 and s 38 in the correct sequence. That said, I am clear that no unfairness or material error resulted from the judge's approach. He had ample expert and professional evidence upon which to be satisfied that grounds necessary for ss 37 and 38 were established. Mr and Mrs B, although they had not attended the hearing, were well aware of this evidence which featured in written reports and had been raised at earlier hearings. The short judgment, whilst possibly unhelpful at the time, does not indicate an absence of clear grounds for making the orders that were made. For these reasons I would not have upheld the appeal in relation to the December 2010 interim care order if it were being heard at a time close to the original order; looked at now, some two years later, the points made are effectively academic in any event.

39. Mr and Mrs B's reaction to the order, and their decision not to cooperate with LCC, was a matter for them. The removal of Tun from the care of Mr and Mrs B under the interim care order on the 15th December was a consequence of their decision not to cooperate with an order of the court that had been validly made and was, in any event, in force

31st January 2011
40. Prior to the hearing on 31st January 2011 LCC had filed a 16 page report in purported compliance with the first s 37 direction. An unapproved note of the judgment and the fairly full recitals within the order made on that day make it plain that the judge regarded the report as being deficient in the following respects:

a) Inadequate evaluation of the risk of Tun suffering emotional harm if he were to return to the care of Mr and Mrs B;

b) No assessment of the option of placing Tun with the maternal grandparents in Devon;

c) The effect on Tun (and his education) of any further moves.

LCC indicated a willingness to file an addendum to the s 37 report, but it did not wish the court to make another interim care order. The judge nevertheless made a further interim care order and, in doing so, he acknowledged that under the order it was for the local authority and not the court to determine where Tun should be placed. He nevertheless urged LCC to think carefully before returning the boy to his mother's home.

41. For the reasons that I have already given (see paragraph 31 and 32) a court has jurisdiction to make more than one s 37 direction in the course of ongoing proceedings. Here the judge identified specific deficiencies in the report that had been provided and the local authority accepted that it was appropriate for an addendum report to be provided. Mr and Mrs B rightly point to an observation of the judge made in a judgment in April 2011 to the effect that the reports from LCC (including the first s 37 report) were comprehensive and thorough. I do not however consider that that observation is incompatible with the decision to order an addendum report in January 2011. The content of the first report was indeed sound, the problem, as the judge apparently saw it, was not what was in the report but what had been left out. He therefore directed an addendum to fill in the apparent deficiencies. The evidence that had supported the making of the original interim care order remained unchanged as, apparently, did the level of judicial concern at the prospect of Tun living with Mr and Mrs B. Mr Pressdee rightly accepts that the evidence continued to provide a basis for a further interim care order. As a matter both of jurisdiction and of process therefore I cannot find that the making of a further s 37 order together with an interim care order in January 2011 can properly be challenged.

4th March 2011
42. Prior to the hearing on 4th March 2011, LCC had complied with the request for an addendum by filing a substantial 30 page report, which concluded that Tun should be returned to his mother's care under a Family Assistance Order to LCC for a period of 12 months. The recommendation was based upon the level of cooperation between LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that it did not intend to make an application under CA 1989, s 31 for a care or supervision order.

43. It has not been possible to obtain a transcript of the March 2011 judgment, but we have seen an attendance note of the hearing made by counsel for LCC and a note of the judgment prepared by Dr K's counsel. LCC's counsel seemingly met the jurisdictional issue head on by submitting to the judge that there were now no reasons that might justify making a further s 37 direction and therefore no jurisdiction to contemplate making a further interim care order. The judge apparently pointed to aspects of the report which gave rise to fresh concerns, in particular with regard to sanitation at the B's home and the prospect that they might be evicted. He was also concerned that the social worker regarded it as acceptable for Tun to be left to protect himself from emotional harm by 'developing strategies' to cope with Mr B's behaviour. These concerns are mirrored in the note of judgment which continues:

'I am satisfied that it would not be right to act on what [the social worker] has said and I am not minded to discharge the ICO. I require the local authority to address the concerns of the father and the children's guardian and the court on reading [this report]. I shall give [the social worker] 21 days to respond. I shall direct that input on behalf of the father and the guardian be put to [the social worker] within 14 days.'

On that basis the judge made a further s 37 direction for 21 days and a further 28 day interim care order.

44. Mr Pressdee submits that the judge's actions on the 4th March are in a different category from those at the earlier two hearings and that it is hard to avoid the conclusion that the judge, sitting in private law proceedings, was effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in CA 1989, which separates the local authority from the court. He also submits that the judge, once again, inverted the order of decision making by first determining that he was 'not minded to discharge the interim care order' before making the s 37 direction. Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why the s 37 report was deficient; instead he delegated that role to the father and the guardian who were, over the course of 14 days, to indicate their concerns to LCC. In this context it is of note that the guardian had apparently departed on leave prior to seeing the March s 37 report and was not at the hearing. His views on the document were therefore not available to the judge at that time.

45. Although a court has jurisdiction to make more than one s 37 direction in the course of proceedings, the exercise of that jurisdiction is to be considered at each turn with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body on the question of whether or not a child is to be the subject of care proceedings. In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.

46. By the 4th March the local authority had plainly discharged its duty under s 37 to investigate Tun's circumstances, it had provided a comprehensive report of that process and had described the reasons for its considered and sustained opinion which was that it did not consider that a care or supervision order was justified at that time. On the evidence as it was at that hearing, making a further s 37 direction and, on the back of that, a further interim care order were steps that were clearly on the far side of the jurisdictional line delineating the role of the court from that of a local authority. In making these orders on that day the judge would seem to have failed to appreciate the limitation of his powers.

47. In addition, where a local authority is presenting a considered position which is against the issue of care proceedings, it must be incumbent upon a court which holds a contrary view to spell that view out in clear terms and full detail in a reasoned judgment. In the circumstances, it was not sufficient simply to refer back to the December 2010 judgment and recite that the interim threshold had been satisfied at that time; it was, by March 2011, necessary to engage with the contrary view that was being firmly and consistently presented by LCC. The short judgment that was apparently given, and the delegation of the task of spelling out the suggested deficits in the local authority assessment to the father and children's guardian were significant procedural errors.

48. If this appeal were being heard during the currency of the 4th March 2011 order, rather than 18 months later, the s 37 direction and with it the interim care order would have to be set aside on the basis that the court had exceeded its jurisdiction in making them and had done so in a procedurally unsustainable manner.

The proceedings as a whole
49. Thus far I have focussed upon three important but specific hearings. It is now time to step back and consider the wider case that Mr and Mrs B seek to establish. That case is that, from the start in December 2010, HH Judge Tyzack had been set upon achieving the permanent removal of Tun from their care. They assert that at each turn the judge acted unfairly towards them and displayed obvious bias against them in the decisions that he made. The decisions of LCC to remove Tun in December 2010 and not to return him to the care of Mr and Mrs B in March 2011 were, on each occasion, the result of Mr and Mrs B withdrawing from cooperation with the social workers. Mr and Mrs B justify their actions at those times on the basis that they did not agree with the court orders that had been made and were therefore fully justified in withdrawing from cooperation.

50. In presenting their case to us Mr and Mrs B were plain in making their allegation of judicial bias. They submitted that 'the fact is that the judge did not make an error [as to his jurisdiction], he did it on purpose. He knew that it was outside the Children Act but he carried on like a bull in a china shop'. Having heard others submit that whatever may have occurred in the earlier stages of the hearing, the overall result was sound, Mr and Mrs B concluded their case by saying that once the judge had made errors of jurisdiction in the period December 2010 to March 2011 'the damage was done and it could not be put right'.

51. In assessing the fairness of court proceedings and, more particularly, in investigating whether the serious allegation of judicial bias is established it is necessary to look at the proceedings as a whole, rather than dwelling only upon one or two events in the course of a long sequence of hearings. If Mr and Mrs B are to succeed in this appeal on their wider case, they will only be able to do so by establishing unfairness or bias which runs right through the process or which is a feature of the proceedings as a whole.

52. I have already drawn attention to the judge's judgments of December 2010, January and March 2011 which fall short of the level of detail required to communicate to the local authority why the court was making orders under CA 1989, s 37 and s 38. In relation to the March hearing, I have held that the exercise of jurisdiction and the absence of detailed reasons would have led to the orders being set aside had they been challenged at the time. The fact that a judge may give a judgment which is so short as to be an inadequate means of communicating with a local authority in the context of s 37 does not, however, mean that the process is automatically 'unfair' to the other litigants. It is not always possible for a judge to give a full judgment on a particular day and where, as here, the parties, including Mr and Mrs B, were well aware of the evidence upon which the court's conclusions were based, the overall fairness of the process has to be considered in that light. In contrast to those that preceded it, the judgment given by HHJ Tyzack on 12 April 2011 is substantial and detailed and focuses upon the events following December 2010, upon the judge's analysis of the evidence and the welfare needs of Tun at that stage. Whilst Mr and Mrs B now seek to challenge the orders made on that day, they did not do so at the time. Having read that judgment with a clear eye upon the judicial bias case that is being advanced, I cannot see evidence of bias in the judge's approach, which is supported by the evidence to which he refers and which was supported by unanimous professional and expert opinion.

53. Mr Rupert Chapman, counsel for LCC, had a difficult path to tread before this court in that his client's case before the judge had been that there was no jurisdiction to make further s 37 and interim care orders, whereas LCC now support the judge's handling of the case and his final conclusions. Despite the forensic delicacy of his position, Mr Chapman was firm in refuting Mr and Mrs B's assertion that they only withdrew from cooperation as a result of the judge's sustained interference with their care of Tun by way of court orders. Mr Chapman points to the long history of non-cooperation by Mr and Mrs B with the local authority and the court process. In particular he points to clear evidence that the B's had been antagonistic to the orders of previous judges prior to the involvement of HHJ Tyzack.

54. In the context of their overall case alleging judicial bias, the judge treated Mrs B's opposition to his continued involvement as a formal application for him to recuse himself from the case at a hearing in November 2011. The court order records that Mrs B had given no reasons to support her position and the deemed application for recusal was refused on 22 November 2011. It is of note that Mrs B made no application to appeal the judge's refusal to stand aside. Instead, as I have recorded at paragraph 14, in December 2011 Mrs B filed detailed documents in the case, but indicated that she was seeking neither residence nor contact with Tun at the forthcoming hearing.

55. The order of 22 November 2011 is of note as it contains detailed provisions which seem designed to give Mr and Mrs B clear notice of the content and structure of the final hearing that was listed for two days in January 2012. The eight witnesses who were booked to be called were listed, but Mr and Mrs B were given a detailed procedural path through which they could apply to have other witnesses called. Mr B was given permission to intervene for the purposes of cross examining the local authority witnesses. Those directions, and the very fact that the matter was being set up for a two day hearing, do not indicate to me that the judge had a closed mind or that he was pursuing his own agenda against Mr and Mrs B in the biased and unfair manner that they allege.

56. The final hearing took place on 13 January 2012. Neither Mr nor Mrs B attended the hearing. Mrs B applied for an adjournment on the grounds that her GP had advised that she was too emotionally labile to cope with the court process. The judge, having in particular heard of the need for Tun to know the outcome of the court process and where he was to live, refused to adjourn the hearing. Given earlier communications from Mrs B (to which I have already made reference) he concluded that neither Mr nor Mrs B had any intention of attending the hearing in person. The judge refused an application for Mr B to represent Mrs B in her absence as her McKenzie Friend, but he did permit Mr B to question the social workers over the telephone during the hearing.

57. In a set of 'written reasons' covering 59 paragraphs handed down after the hearing, HHJ Tyzack described the procedure adopted and the analysis of the evidence which had led him to conclude that Tun should remain placed with the maternal grandparents and that that placement should be under a special guardianship order. My reading of that document is that at each stage the judge describes the decision that he has taken, be it procedural or substantive, cross refers it to the evidence or information that was before the court and then sets out clear reasons for the conclusion to which he has come. There is, in my view, nothing in that document that could advance the case of judicial bias or, indeed, procedural unfairness and it is of note that Mr and Mrs B do not really refer to this important concluding judgment in presenting their appeal.

58. It is, however, part of Mr and Mrs B's case before us that the decision to place Tun with his maternal grandparents was plainly wrong as being totally contrary to his best interests. Even if he had to be in care, they say that would be a better outcome than living in his present home. Both at the permission to appeal stage and at this hearing Mr and Mrs B have submitted information and given accounts of Tun displaying very difficult behaviour at school and elsewhere with the result, they say, that his educational needs are not being met and he is on the fringes of the criminal justice system.

59. The information provided by Mr and Mrs B is an obvious source of concern, but having now been taken by counsel for the local authority to the material before the judge which indicates that these difficulties were known about at the time of the hearing, and having been told in very clear terms by Mr Pressdee that the guardian does not support the appeal upon this aspect of the case, I am clear that the choice of placement was a decision as to the child's welfare in relation to which the judge had a wide margin of discretion. His decision to place and consolidate Tun in the home of the maternal grandparents was supported by all of the expert and professional evidence, and was urged upon him by all parties save for Mr and Mrs B. The worrying matters to which reference is made were properly before the court and therefore part of the welfare balance undertaken by the social workers, the guardian and, ultimately, the judge. In order to succeed on this aspect of their appeal, Mr and Mrs B would have to establish that the judge's choice of placement was plainly wrong; it is simply not possible to characterise the judge's decision in that way and the appeal on this ground must fail.

Conclusion
60. In the circumstances, Mr and Mrs B's appeal must stand or fall upon the conclusion to be reached on their core assertion which is that the whole process before HHJ Tyzack was fatally tainted by unfairness and judicial bias against them. Their case is assisted by the conclusion at which I have already arrived to the effect that in making the March 2011 s 37 direction and a further interim care order the judge exceeded his jurisdiction. That conclusion is, however, the high point of their case on bias and unfairness. The conduct of the proceedings has to be looked at as a whole. From that perspective, for the reasons that I have given, I can detect no evidence of judicial bias or procedural unfairness. On the contrary the judgment of April 2011, the directions order of November 2011 and the full reasons given for the final decision in January 2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process, should they choose to take part in it, and laying out clearly the factors that he was concerned about and in relation to which he would need to see evidence of change, should Mr and Mrs B wish to provide such. The actual decisions made by the judge were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in not, of itself, any indication of judicial bias. In the present proceedings it would seem that Mr and Mrs B's unilateral actions in withdrawing from cooperation with LCC and with the court at key stages contributed much to the way in which their claim to have Tun in their care became progressively less and less tenable.

61. Having undertaken a thorough analysis of the process in this case, and despite having concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs B had appealed the March 2011 interim care order at the time then, in my view, that appeal would have succeeded. They did not do so. Instead they withdrew from cooperation with a local authority, which hitherto had been supporting them to be Tun's carers. Events moved on and now, some 18 months later, the finding of error in March 2011 is part of the history and cannot, of itself, lead to a finding that the judge's final conclusion should be set aside with the result that the whole question of this young boy's future should, once again, be considered afresh by the court.

62. For the reasons that I have given I would dismiss this appeal.

Lord Justice Sullivan
63. I agree.

The Master of the Rolls
64. I also agree.