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D (A Child) [2005] EWCA Civ 1132

Application for permission to appeal an interim care order. Permission granted, appeal dismissed.

B4/2005/1574

Neutral Citation Number: [2005] EWCA Civ 1132

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHESTER COUNTY COURT

(HIS HONOUR JUDGE HALBERT)

Royal Courts of Justice

Strand

London, WC2

Friday, 29 July 2005

B E F O R E:

LORD JUSTICE WALL

LORD JUSTICE MOORE-BICK

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D (a child)

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(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

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MISS GUIRGUIS (instructed by Oliver & Co) appeared on behalf of the First Appellant

MR READE (instructed by Jacobs & Co) appeared on behalf of the Second Appellant

MISS BISPHAM (instructed by Susan Howarth & Co) appeared on behalf of the Respondent

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE WALL: GLD was born on 13 March 1996 so she is 9 years old. She is the subject of care proceedings instituted by the Cheshire County Council and pending in the Chester County Court. Her mother is LJ who is 43. Her father is a man called KD, to whom LJ was married but from whom she is now divorced. LJ is now living with Mr AR, who is 52 years, and who was made a party to the care proceedings on 22 June. On 13 June 2005 Kirsten Bennett was appointed G's guardian.

2. On 22 June 2005 the proceedings were transferred from the local Family Proceedings Court in which they had been issued to the County Court in Chester. On 28 June His Honour Judge Halbert gave directions for the hearing of an application by the local authority for an interim care order. That hearing was to take place on 18 July 2005 at 10.30, with a time estimate of one day, the parties and their representatives to attend by 9.30 am. In addition to giving that direction, the judge gave a number of other important directions amongst which were to fix the final hearing of the care proceedings before His Honour Judge Barnett on 16 January 2006. For the purposes of the proceedings the parties were jointly to have permission to instruct Alison Wales, a child psychologist, to conduct a psychological assessment of the child and to file a report of her findings, that report to be filed by 4 pm on 30 November 2005. The local authority, for the purposes of the interim application, were to file an interim care plan by 4 July together with any other evidence on which they intended to rely. The mother and Mr R were to file evidence by 11 July.

3. On 18 July the local authority's application under Section 38 (1) of the Children Act duly came before Judge Edwards. It began at about 12 o'clock and occupied the rest of the day. Unfortunately the guardian, we are told, only arrived at 2 o'clock due to commitments in relation to another case. The application by the local authority was for the removal of G from the care of her mother and Mr R under the interim care order and for there to be assessments both of her, her mother and Mr R and what was called twin-tracking, namely, at the end of the period of six months for the final hearing, was it going to be in her interests for her to return to the care of her mother and Mr R or was it going to be necessary for her to be placed in a long term foster arrangement?

4. The local authority's case, summarised very shortly, (and I will have to return to it in a little more detail in a moment) was that it had been seeking to work with Mrs D and Mr R for a considerable period with a view to ensuring that G could remain permanently in their care. There had been some improvement during the period of their intervention and some of the issues of neglect which they had addressed had been improved. But the local authority's position was, in essence, that these were parents - and for this purpose I put Mr R in the position of the father although he is not - who lacked capacity to meet G's needs, that she was, as a consequence of her history, a difficult and disturbed child, that the improvements only occurred when pressure was on and that, accordingly, it was necessary for there to be a firm intervention. There had been, the local authority argued, no improvement in what it described as the continued emotional harm which G was suffering in her mother's household. The local authority had come to the view therefore that the only way forward was to apply for an interim order for her removal into foster care, to adopt a twin-track approach and then to decide, or invite the court to decide at the end of the six-month period, which way her welfare pointed.

5. The judge heard both the mother LJ and Mr R. He also heard evidence from the local authority social worker and he heard from the guardian. He reserved judgment overnight. He did not find it an easy application and honestly said so. We initially only had a note of his judgment, but we now have the transcript. He made the interim care order. It is against that order which both LJ and Mr R seek permission to appeal.

6. As will be apparent from the dates, this application for permission has come on very swiftly. There was no time for it to be considered on the papers, as it more normally would have been, by a single Lord Justice. Had I had the opportunity so to consider it, I think I would have directed it in on notice with appeal to follow if permission were granted.

7. Fortunately the local authority has appeared today by counsel although the guardian - who, in any event, I think attended to take a neutral stance in relation to the permission application - has not appeared. In these circumstances, at the outset of the hearing this afternoon, we indicated to counsel that we were minded to hear the appeal. We indicated that if one wished to select a point on which to hang that application for permission, the judge had made a reference to Article 8 of the Human Rights Convention which could perhaps be criticised. But there were points raised in the case which made it appropriate for us to hear the appeal. We granted permission therefore, and we have heard the appeal this afternoon.

8. I feel bound to say that, having spent a considerable time on the Northern Circuit, that it comes as a refreshing relief to hear such concise and coherent argument as we have heard this afternoon. Speaking for myself, I am extremely grateful to all three counsel for the clarity and good sense of their submissions.

9. This is not, as the judge said, an easy case. The reason of course for the urgency is that under the judge's order G is to be removed to foster parents. An interim arrangement was made at the conclusion of the hearing before the judge for G to stay in the interim, in the meantime, with I think her paternal aunt, and she is staying there awaiting the outcome of this appeal. We therefore did not wish to delay any longer than was absolutely necessary. I rather fear that this judgment, beginning as it does at 4.15 on the last Friday of term, will not do justice to the submissions we have heard this afternoon.

10. I propose to start by looking at the interim threshold criteria as presented by the local authority and not diputed by the parents (for this purpose I will call them LJ and Mr R) to the judge. The judge was dealing with an interim order. An interim order normally lasts for 4 weeks although the first can last for 8 weeks. Some question was raised, not least from the Bench this afternoon, as to potential delay in the local authority instituting proceedings in the context of the factual circumstances I shall shortly describe.

11. For the local authority Miss Bispham informed us that it had been intended to bring this application in the Family Proceedings Court. The delay was in large measure, certainly so far as the hearing was concerned, brought about by the transfer to the county court. She accepts however that G has been at home for a considerable period of time, that the local authority have had serious anxieties about her for a considerable period of time. It is not altogether easy to understand - on the chronology we have been given - why it was that the local authority did not intervene earlier in her care. It is often the case when neglect is involved, as it is here, that local authorities delay intervention often for sound motives because they are attempting to keep the family together but sometimes, I fear, simply from oversight. But either way, parents who find themselves faced with an application for the removal of a child inevitably feel a sense of injustice that whereas the matter has been allowed to go on for a considerable period of time they are suddenly faced with an application to remove the child.

12. In the instant case Miss Guirguis for LJ points to the fact that there were on going proceedings from November 2004 when G's maternal grandmother was making an application for residence, in which the local authority could have intervened had it chosen to do so. However, whatever the background, that is the actual fact and that is the chronology of the institution of proceedings.

13. The threshold criteria under Section 31 for a final court hearing are that the child is suffering or is likely to suffer significant harm, that harm being attributable to the care given to a child by a parent. For Section 38 the test is much lower. It is sufficient that there are reasonable grounds to believe that at the time the proceedings are instituted the threshold criteria are established. It is a lower test. It is right to say that both the local authority's threshold criteria and the threshold criteria accepted by LJ were in slightly different terms.

14. The summary of the local authority's criteria demonstrates the difficulties of the case. It alleged G was suffering harm: physical, social, educational and emotional in all aspects of her development and she had been neglected. The local authority pointed to delayed literacy, poor social development, poor diet, failure in a number of medical aspects of her care, a substantial amount of emotionally disturbed behaviour. It pointed to the fact that her name had been on the register twice, and that at home she suffered inadequate routines, boundaries and supervision. She had also been the subject of a serious sexual assault in November 2003 on an occasion when she had been missing for an hour-an- a-half when she was meant to be in Mr R's care. She had also been allowed to go out a lot on her own. There had, the local authority said, been a failure to implement or sustain the advice in relation to management which the local authority had been attempting to inculcate.

15. The local authority also pointed to two periods when G had been away from home, once when she had been taken into police protection in September 2004 when her mother had effectively abandoned her during a police interview in relation to an alleged sexual assault by Mr R, for which there turned out to be - it must be said - absolutely no foundation. At that point G spent 6 weeks in foster care. In March 2005 she spent 6 weeks with her Aunt V when the family was rendered homeless.

16. The local authority pointed to the fact, on their case, that during these periods away from home there had been an improvement in her behaviour. She had responded to firm predictable care and praise. A pattern of settled, contented behaviour had been noted while she was living with her aunt, apart from periods of contact. There had been therefore a serious emotional impact on her on all the aspects which had been summarised in the statement.

17. The statement put forward in manuscript by LJ was to a lesser extent of course, but the underlying thrust of much of what the local authority were saying represented the threshold criteria were still there. Of course I accept that this is not an acknowledgment by the mother that these matters were all proved. The court was moving on the basis that there were reasonable grounds to believe that at the time these aspects were in place. Even LJ accepted that there had been concerns expressed about G's social skills and that emotionally she was immature. She acknowledged the head lice infestation which the mother had failed to cope with over a period of months. There was an acknowledgment that G had displayed emotionally disturbed behaviour including nightmares, bedwetting and soiling. She accepted that G had been on the register on the two occasions I have already mentioned. She also accepted that there had been concerns expressed as to inadequate routines, boundaries and supervision. She acknowledged that G had been the victim of the sexual assault to which I have referred, and also that she had experienced the two periods away to which reference has been made. It was acknowledged that those periods of separation would have had an emotional impact on the child.

18. The judge begins by recording the acknowledgment - and, if I may say so, a realistic and sensible acknowledgment - that the threshold criteria are met for the purposes of Section 38 (2). He is looking therefore at his decision in the context of welfare. He had a detailed plan put forward by the local authority, an interim care plan as directed by the judge, in which it was clear that the aim was to provide a safe and supportive environment for the child and if any interim order was made she would be removed from maternal care, placed in local authority care while assessments took place and therapeutic work was implemented with her. The outcome of those assessments would determine the final care plan for G. Throughout the authority said it would be twin-tracking the family findings with rehabilitation to her mother and to Mr R.

19. The alternative outcome, in the absence of any family members changing their currently steady positions and not being able to care for her, would be long term fostering.

20. The details of what was being offered to the mother and Mr R was then set out, the programme of work that would be expected of them. There was also a proposal - already catered for - to obtain the psychological assessment in respect of G which would inform the final care plan in relation her. So the lines were very clearly drawn before the judge. The parents' case essentially, as I understand it, was that the removal of G now was both unnecessary and likely to be extremely harmful to her.

21. The judge reserved judgment overnight. He is, of course, an experienced judge in care cases, which clearly involve matters of the utmost seriousness and importance for the parties. It is clearly important that a judge should always explain himself clearly so that the parents understand why they have "won" or "lost". At the same time a judge of this experience is entitled to take a number of relative short cuts. He is entitled to take a realistic view. He is entitled to make findings on hearsay evidence as well as forming opinions on what may be quite short acquaintance with the papers and the people.

22. I say that because there is some criticism, not forcibly repeated this afternoon but nonetheless in the background, that this hearing was not really a fair hearing in Article 6 terms, that only a limited amount of time was given to each of the witnesses to give evidence and cross-examination had to be curtailed because of the constraints of time and so on.

23. I simply say that, speaking for myself, I detect no Article 6 unfairness in this hearing. All the relevant parties were represented. There was an abundance of material before the judge. He was skilfully directed by counsel towards the relevant issues. He had a great deal of assistance from the Bar. Inevitably in a case where there are time constraints, as there must be, a judge is entitled to limit evidence (provided he does not act unfairly) and to direct his own mind and the minds of the parties to the specific issues in the case. Although this is a decision of considerable importance for G, I am quite satisfied, speaking for myself, that the judge had ample material on which to make it and the way he went about it was perfectly fair. He began his judgment by painting in the background. He made the point, which I think is a perfectly fair one, that it was common ground that the threshold criteria were met and that if the local authority had been saying that it wanted an interim care order but was going to leave G at home he did not think that would have been resisted by LJ or Mr R.

24. The critical issue in the case - the issue in the case - was the removal of G. The judge described where she was going or where she was likely to go, the distance it was, the twin-track, the fact she would continue to go to the same school but would lose her after-school clubs, and went almost immediately to the question of G's response to the prospect of being removed. He recognised at once that she was fearful of it. She had described it as being taken into care. She had been apprehensive even though there was some suggestion at a social worker meeting that she had been slightly less so. He said:

"It would be wrong on the basis of that one report to regard G as anything but resistant to the move and fearful about it. I have little doubt that the in-put of mother and stepfather on the issue of removal has been wholly negative."

So: child apprehensive, parents hostile to the move and obviously the child was fully aware of their views. He went on to recognise that this was going to be an interim position. There would be a scheduled hearing in front of Judge Barnett.

25. The judge then went on to discuss the question of the psychologist. He pointed out that the guardian ad litem had spent only half-an-hour with the child and had not been able to discuss or make any real intervention into how the care plan would impact on her. The hearing had been brief. It had not been possible to have an in-depth investigation. There was going to be a psychological report available in five months time. A question in his mind, suggested to him by Mr Reade, was that before giving judgment he should try to contact the psychologist to see if she could give an interim opinion on the possibility of trauma to G if she is now removed. The judge, in my view, perfectly reasonably responded by saying that he did not think it was appropriate for a psychologist to be asked to give, or could give, an opinion about a child she had never met. At a later stage in the judgment he said he did not think that a psychologist on this point would be able to say much more to him than he already knew, which was that plainly the child was going to be upset by a move and was apprehensive of it.

26. The judge made his passing reference to the Human Rights Act. He referred to it as having made its customary and "as usual unnecessary" appearance in argument. If the appeal had turned on this point it is one which might be, I suppose, of some interest. In fairness, no counsel in front of us has emphasised it. What the judge was saying of course was "I take into account everybody's right to respect for their family life. Of course I take into account interference and proportionality in relation to removal of a child." What he is, in effect, saying is "I do not need the Human Rights Act to tell me I need to do that because I do it anyway." I think it was unfortunate in the way he expressed himself. What he should have said was that every care application involves a balancing of rights under Article 8. Everybody in the case, including G, has a right to respect for their family life. Every care proceeding is an interference. The question is always whether that interference is justified and proportionate. I therefore do not think that by referring to the matter in the way he did the judge offended against the spirit of the Convention although certainly he does not seem to have obeyed its letter. Be that as it may, it is quite clear that the judge had all the relevant Human Rights Act principles, in my judgment, in his mind when he went on to consider the facts.

27. The judge begins by looking at G. She is clearly, he said, a damaged child. She has behavioural problems. She needs love and firmness. There is never a guarantee, he said, that, in the interim, any foster placement will last. This is not the time, he said, to consider the prospects of success for long term foster care after January next year, but there will be no guarantee of that being a success either. Rejection is the last thing G needs at present. She is already over-burdened with emotional problems which a little girl of 9 should not have to endure. He said this:

"These are all significant factors supporting the respondents' case which is that the interim order should be refused at least temporarily or, if granted, should be granted with a strong recommendation to the local authority to reconsider the interim care plan at least until some clarification can be obtained from the psychologist as to the likely effects on G of removal to foster care."

28. The judge is criticised in particular by Mr Reade for not following that line of thought through. It is argued that before embarking on a course of this gravity the judge should have ensured that he was properly advised and that the advice he was given came from the appropriate expert source. It was not sufficient simply to have provided for a psychologist to report in due course towards the end of the 6 month period. The judge rejected this approach in a passage to which I shall come in a moment.

29. I think it better, before coming to it, to go on with the judgment to identify the factors the judge saw pointing in the opposite direction. Those factors were the concerns which the local authority had demonstrated about G, and those, to an extent, which were conceded in the mother's threshold statement. I have already summarised the nature of the local authority's case, and the judge clearly took it very firmly on board. I quote:

"The local authority say that there has been 18 months of intensive work to try and support the placement of G with her mother and her stepfather. Although there has been some improvement within the home the situation remains seriously damaging to G and it is not a moment too soon to remove her to a more stable environment. The guardian ad litem adds that the assessment of G needs to be made and can be made more effectively against the background of a firm and stable home background away from the pressures which this litigation has inevitably brought into G's life."

As to that passage, it seems to me that the judge was perfectly entitled to reach the first conclusion, namely that the situation at home remained seriously damaging to the child and that it was appropriate to move her.

30. The reference to the guardian's evidence is again criticised by Mr Reade, for the father, who says that this was a thought put forward by the guardian for the first time in the witness box, not part of the local authority's case, and that it was quite inappropriate for the judge to agree to the removal of the child as a means of facilitating an assessment. If he was to do that that was an improper move unless he had evidence, not just from the guardian but from the psychologist, that it was necessary to remove the child in order for the assessment to take place.

31. I see the force of that observation. Had the judge decided the case on that basis I think Mr Reade might have a point. But what the judge was primarily saying, it seems to me, was that G is suffering significant harm (or there was reasonable cause to believe that G was suffering significant harm) in her placement at home, and in order, as the local authority wished, to assess her properly and to enable the local authority to make an assessment of her without the pressure of the harm she is suffering, or would be likely to continue to suffer, at home, it was necessary to move her into a more neutral, more stable, more structured environment where it would be possible to make a full assessment of her, one which one could not properly make at home. I think the guardian's add-on, if I can put it that way, is very much an afterthought in the judge's mind and not part of the ratio of his decision.

32. The judge went on to back up his assessment of the harm which he believed there was reasonable cause to believe G to be suffering by looking at the evidence before him and making what he described as findings of fact. Some of these are, I think, uncontroversial; - for example, the proposition that part of G's disturbance sprang from the fact that LJ's relationship with Mr D was one of extreme violence which G had herself witnessed. Not only had conditions at home been appalling when the mother was living with Mr D, but G's half-brother Paul - LJ's child by an earlier relationship - had lived in that household and been a man with considerable mental problems who, while he may not actually have assaulted G, certainly added to her disturbance.

33. The judge went on to make a number of a assertions or findings about LJ's and Mr D's capacity to look after G, all of which are taken from the very detailed chronology and from the social work evidence. He referred to a school report and a more confidential letter produced by the school teacher. He referred to the sexual assault which G had suffered in 2003. He pointed out that the mother appeared to attribute all of her misbehaviour after that date to the sexual assault which she had suffered. The judge described that as unreal. He took the view that the central reason was poor parenting and poor home circumstances.

34. The judge then gave a pen picture of Mr R who he had seen in the witness box and expressed anxieties about his drinking and temper. He dealt with the separation, the period in September 2004 when G was (as he described) abandoned by her mother at the police station. He made a finding about an incident which occurred on 24 June. He is again criticised, particularly I think by Mr Reade, for making his findings in relation to that. It is the case that the findings he made are based on a hearsay report from the social worker of a complaint to the police. On 24 June a neighbour had called the police after hearing Mr R shouting at G about how it was her fault that he had to see a solicitor and barrister. After a while G was heard to shout back. Mr R was then heard to shout, "Get out or I will kill you." LJ then intervened and G was heard to shout, "Get off my ears," a somewhat ambiguous remark, and, "Mum, help me." The police were called and they duly arrived. The judge dealt with this incident in the following way:

"That is based on hearsay evidence, but I have no reason to doubt the truth of it. It is a very recent incident and reflects very badly indeed on Mr R."

35. In my judgment - and this is why I refer to the experienced judge and his attitude to it - an experienced judge in the County Court hearing that evidence, having seen the parties in the witness box, and Miss Bisham for the local authority says the father was asked about it, was entitled to make that finding. It is brisk. It is to the point. It is to an extent, I accept, rough and ready. But in the context of the decision which the judge was being asked to make, it was a factor, in my view, which he was entitled to take into account.

36. Therefore in those circumstances he came to the view that it was not appropriate to leave G at home. The threshold criteria had been established, and the child's interest called for an interim care order and for removal. He goes on to say, again returning to the care plan and the risks of removal:

"It would have been better once the psychologist had been instructed if it were possible to have some in-put to G. I assess little G's needs ..... signs of which are all too apparent from the various reports, social work and school. The move to foster care is certainly a drastic one but I assess as best I can that G will settle down to it after considerable initial upset. I hope and expect that the foster carers are up to the task and have been warned what to expect. It is certainly an opportunity to assess over a longer term than 6 weeks what advances can be made with G away from home. It is certainly a better background against which to make assessments of her. I have no doubt at all that there are tensions within G's present home. Certainly the litigation and the pressures on G must be considerable. These are arguments advanced by Mr Pay on behalf of the guardian and they are persuasive arguments."

He went on to say:

"I think it is in G's best interests to make the move now. I feel that I know enough about the case even after a day's hearing to take that decision already. To wait for some sort of report from a psychologist is likely to take too long. G would certainly suffer harm in the meantime, and I am not sure a psychologist, however distinguished, can tell me anything about the upset of removal to G that I cannot work out for myself. I therefore make the interim care order for G who is in urgent need of coming under the care of the local authority although I acknowledge that there are powerful arguments each way I approve the interim care plan. It will be apparent I have not found this an easy case. Contested interim applications of public or private law matters concerning children are frequently not easy. For that reason and also because of the lateness of the hour yesterday I have adjourned my decision overnight to give the thought needed. This decision, I should emphasise, for the benefit of the two respondents, does not of necessity mean that G's future lies away from her mother's home. The present plan, that is the interim care plan, is for twin-tracking though there may yet be changes in that plan before it is presented as a final care plan at the final hearing. Doing the best I can however on my decision as I have indicated is that G is placed in the interim care plan and I approve the interim care plan."

37. Before turning to the arguments advanced on behalf of Miss J, I make this preliminary observation having gone through the judgment in some detail. The threshold criteria under Section 38 having been established, the decision which the judge had to make was essentially a welfare decision under Section 1 of the Act. Was it necessary to make an order at all? If it was necessary to make an order, what order should it be? Proportionately I think one should add that one should only make an interim care order if it was absolutely necessary in the interests of the child to do so. The child has a right to be brought up by her natural mother unless that right is displaced by considerations of welfare.

38. In the welfare equation, as it has become called, in the balancing exercise the judge had to undertake, he has a very wide discretion. He must take into account all relevant factors and he must discard all irrelevant factors. If the balancing exercise is vitiated by a failure one way or the other, either to take any factor into account or fail to take any factor into account, then the exercise can, of course, be vitiated and the decision thereby plainly rendered wrong. Anyone attacking the exercise of discretion has either to show a substantial error of law or a plain error in the balancing exercise which indicates that the decision is plainly wrong. It is a truism in family law that the more difficult, more finely balanced, a decision, in a way the more difficult it is to upset it provided the judge has gone through the balancing exercise appropriately. I have already dealt with one of the points, namely his attitude to the Human Rights Convention. In my judgment that does not affect the balancing exercise because the factors underlying it were undoubtedly within the judge's contemplation.

39. I also think, with respect to Miss Guirguis, that it is not on a fair reading of the judgment or a proper criticism to say that the judge made an error of law by applying the threshold criteria under Section 31 (2), ie, he found them established, therefore he prejudged the case, made up his mind and decided on inappropriate and on inadequate evidence that a care order was necessary and the child was not effectively going to return to her mother's care.

40. Throughout the judgment, although there are passages in which he specifically refers to findings of fact and he makes findings about specific harm, the judge at no point sets out the criteria under Section 31 (2) or Section 38 for that matter. But throughout the judgement he is at pains to say that this is an interim order and interim provision, and it is going to be for an interim period. At the end of the judgment, which is an important passage from the parents' point of view, he says in terms that part of this exercise of twin-tracking is that it is an interim order and that if the parents are able to address their own deficiency between now and December they will be able to mount a case - a strong one - for return of the child.

41. I do not accept the argument - part of the first ground that Miss Guirguis advances - that the judge went beyond what was necessary for the purposes of an interim care order and that he was plainly wrong to make the finding that the Section 31 criteria were made out in full. I do not think he did so. Therefore the references to Hampshire County Council v S which Miss Guirguis advances do not, I think, advance the case. The judge does not refer to any authority. He does not even, I think, refer to the Children Act. But it is quite clear with a judge of this experience, who is dealing with an application which he recognises is difficult and recognises is frequently difficult in this context, that that, to my mind, is not appropriate criticism of him.

42. As to the findings of fact, I can understand why both Miss Guirguis and Mr Reade from their respective positions are unhappy about the robust may in which the judge looked at the material before him. But, as I said in the course of argument, there is, in my judgment, absolutely no question at all of any issue estoppel arising as a result of what the judge has found. The judge had to look at the facts as they presented to him that afternoon in order to make a decision about G. He has done so. Everyone recognises that that was done on limited evidence with limited cross-examination and, for example, in relation to areas such as absences from school, improvements in behaviour and so on, when it comes to a full hearing I am in no doubt, if it is appropriate, there will be cross-examination as to those factual issues. And the judge who takes the final hearing - who will not be Judge Edwards - will not be in any way bound by the findings which the judge says he made.

43. That, in a way, covers Miss Guirguis' ground 4 because the judge did, I think, recognise the relationship between G and in particular her mother.

44. There had been improvements in a number of aspects of G's behaviour over time. The real test will come at the final hearing when those points are fully argued out. In my judgment, the question as to whether or not at this interim stage there had been improvements of a sufficient nature one way or the other was not, of itself, enough to outweigh the judge's more profound consideration of G's needs in the context of the next six months. I do not propose to go through the detail of that submission. It will be for another occasion.

45. As I indicated earlier, in my view, all options remain open for these parents even if this appeal is dismissed.

46. I hope I have dealt with the question of the psychologist. It seems to me that here the judge was being robustly commonsensical. He was saying, in effect, "I have not any psychological evidence to tell me what harm she is going to suffer in the process of being moved. I would have liked it. It would have helped me. But there is no point in trying to get someone to do it cold without seeing the child because all she will tell me is that the child will be upset. I know that." That seems to me a robust response to the first point.

47. As to the second point, the judge was clearly concerned about delay. He thought that G should be moved; G was suffering significant harm. She needed to be moved. Delay in order to obtain a report which would advise him whether or not she should be, he thought would take too long. Given the other factors he was weighing in the equation, I cannot say that he was wrong to do that. It seems to me a perfectly sensible approach to have adopted. The argument that she was being moved simply to enable a psychologist to assess her elsewhere seems to be something of an add-on, not one that is directly relevant to his primary decision.

48. It seems to me, having I hope looked at the case as carefully as I can, that the judge was entitled to make the decision he did. He was certainly not plainly wrong. Whether I would have made it or whether my Lord would have made it is not the issue. The question was whether the judge was within the parameters. Is his decision outwith the band within which reasonable disagreement is possible? In a difficult, sensitive and finely balanced case I do not think it was.

49. I come back to the same point. These are interim orders. It is a strong thing to do, but the judge was motivated by what he believed to be in the best interests of the child. He had good reason for doing what he did. Of course only time will tell.

50. The parents have this assurance. These are interim orders. They will need to be renewed. They can be kept under review. If they are not working the judge can be invited to reconsider them. I do not invite the parents to do so because G needs, above all else, security and stability of placement. But the position is that this is not a once-and-for-all, final, nanny-state intervention. This is not, in my view, social engineering. This is the judge attempting to set up the best forum he can for a decision as to this child's future in six months time.

51. For all those reasons, and I fear at somewhat garrulous length, I would, having granted permission to appeal, dismiss this appeal.

52. LORD JUSTICE MOORE-BICK: I agree. The appeal should be dismissed for the reasons given by my Lord, Lord Justice Wall, with which I am in full agreement.

53. I would like to add that I, too, wish to express a debt of gratitude to counsel for the very helpful way in which they have dealt with these matters this afternoon.

Order: Application for permission to appeal granted. Appeal dismissed