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NP v South Gloucestershire County Council & MLC [2005] EWCA Civ 1329

Application for permission to appeal against the refusal to discharge a care order. Application refused.

Neutral Citation Number: [2005] EWCA Civ 1329

Case No: B4/2005/2118




HHJ Rutherford


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10/11/2005

Before :



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Between :

NP Appellant

- and –

South Gloucestershire County Council 1st Respondent

- and –

MLC ( A child) by his guardian 2nd Respondent

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Robin Tolson QC (instructed by Messrs Foster & Partners) for the Appellant

Stephen Cobb QC and Judi Evans (instructed by Mowbray Woodwards) for the Guardian

Stephen Cobb QC and Elizabeth Hudson (instructed by South Gloucestershire County Council) for the Local Authority

Hearing date : 3rd November 2005

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Lord Justice Wall: :


1. In this case, we made a direction imposing restrictions on the identification of the child involved and his family. I shall therefore throughout this judgment refer to the child concerned as M and his parents as "the mother", and "the father".

2. The mother seeks permission to appeal against His Honour Judge Rutherford DL's refusal, sitting in the Bristol county court on 15 September 2005, to discharge a care order made on 14 December 2004 in relation to M, who was born on 15 January 2004, and is now aged 21 months.

3. The cases raises once again the question of the remedies open to a parent;

(1) whose child is made the subject of a final care order in proceedings under Part IV of the Children Act 1989 (CA 1989); and

(2) where the care plan for the child on the basis of which the care order was granted proposes a particular course of action for the child; but

(3) the care plan is either not implemented, or is changed in a way which the parent perceives may be adverse to the interests of the child and / or the parent.

4. On 20 October 2005, having considered the mother's application for permission to appeal on paper, I directed an oral hearing of the application on notice to the local authority and M's guardian with the appeal to follow if permission was granted. Due to the urgency of the matter, the application was expedited and heard on 2 November 2005.

5. Full and helpful skeleton arguments and position statements were produced on behalf of the mother, the local authority and M's guardian, but at the conclusion of the oral argument from Mr. Robin Tolson QC, for the mother, we reached the decision that permission to appeal should be refused. We announced that decision, but as the case raises points of importance for the profession, we reserved our reasons.

The facts

6. As the local authority's application to free M for adoption, the mother's application for contact with M as a child in care, and her further application for relief under the Human Rights Act 1998 (HRA 1998) issued on 12 October 2005 are all due to be heard in the High Court over three days commencing 22nd February 2006. I propose to limit my summary of the facts to the minimum necessary for an understanding of my reasons for coming to the conclusion that the current application for permission to appeal should be refused. Moreover, nothing I say in this judgment should be taken in any way as expressing an opinion on the merits of the outstanding applications before the county court.

7. The mother was born on 29 October 1988. She is therefore just 17 and is herself subject to a care order in favour of the local authority made in October 1996. Prior to her receipt into care she was neglected and subject to both physical and sexual abuse. She was removed from her mother's care in May 1996, and initially placed with relatives. Following the making of the care order in October 1996 she lived in a number of placements, all of which seem to have broken down.

8. The mother was thus 14 when M was conceived, and 15 when he was born. M's father was born on 29 September 1986. He is thus two years older than the mother. It is unnecessary to say anything else about him for the purposes of this judgment, save that he did not attend the hearing before Judge Rutherford, and on 15 September 2005, the judge dismissed his applications for parental responsibility and for contact with M.

The care proceedings relating to M

9. The local authority took care proceedings in relation to M on 23 March 2004. The care plan was to find out if the mother was capable of looking after M properly. To that end, the mother and M were placed in a mother and baby unit.

10. Once again, it is sufficient for the purposes of this judgment to record that the final hearing of the care proceedings was scheduled for 14 December 2004. On 1 December 2004, the local authority filed an interim care plan. It wished to postpone the final hearing and continue with a supported mother and baby foster placement for a further three to six months. It therefore sought further interim care orders. The guardian, however, was opposed to that course. Whilst, as I understand it, he was not opposed to the mother remaining in the supported foster placement for a further period, his view was that the court should make a final care order on 14 December 2004.

11. A pre-hearing review of the care proceedings took place before Judge Rutherford on 9 December 2004. The judge heard argument, and sided with the guardian. He therefore refused to vacate the fixture. Thus on 14 December 2004, the final hearing took place before a different judge, Judge Roach. On that day, a final care order was made by consent, and although the care plan was amended in certain respects, it remained essentially the same, namely that the placement of the mother and M was to continue for a further three to six months; that specified work was to be undertaken, and if sufficient progress was not made within that period, an adoptive placement would be sought for M. The plan also identified situations which would lead to M being removed from his mother.

Events post care order

12. The mother and M moved to a different foster placement on 17 December 2004, and on 6 January 2005, M was removed from his mother's care. The circumstances in which he came to be removed are in issue, and I say nothing about them save to report the fact that he was removed.

13. On 19 July 2005, the local authority issued an application under CA 1989, section 34(4) for permission to terminate both parents' contact with M. On 7th March 2005 the mother made an application to discharge the care order, and for contact with M. M's father also applied for contact and for parental responsibility. These applications all came before Judge Rutherford. He heard them over 3 days and gave an extempore judgment at the conclusion of the hearing on 15 September 2005.

The judgment given on 15 September 2005

14. As the judge rightly recognised, the issue which was the focus of attention was the mother's application to discharge the care order. His judgment concentrates on that application. Having recounted the history, and the making of the care order on 14 December 2004, he continues:

There then followed a disastrous period in the history of this case, and I think it is probably right to say that with the wisdom of hindsight, if I had known what was going to happen on 9th December, I would have willingly embraced the idea of a further interim care order. Equally, I am pretty sure, had all the parties and the judge known on 14th December, they would also probably have gone down the interim care order route, but of course hindsight is wonderful, but we are not blessed with it at the time when we are doing these things, and so the court made the final care order.

15. Having described briefly the circumstances in which the mother and M came to be separated, the judge then identifies the problem. What are the powers of the court to regulate what happens once a final care order has been made?

16. The judge begins his analysis of the issue by extensive citations from the decision of the House of Lords in Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 2 AC 291 (Re S; Re W). Those citations lead him to the conclusion that the only remedies open to a parent under CA 1989 in these circumstances are (1) an application to discharge the care order and (2) an application for contact.

17. The judge then queries whether or not, by analogy with the decision of the House of Lords in Barder v Calouri [1988] AC 20, the mother might have applied for permission to appeal against the care order out of time, on the basis of an unforeseen event. Alternatively, she might have applied for judicial review of the local authority's decision to terminate the foster placement.

18. Since the mother had done neither, the judge turns to examine the application to discharge the care order. He describes it as "a very blunt instrument", and points out, correctly, that it falls to be considered by applying CA 1989, section 1 and that the welfare of M was paramount. The judge then deals with the applicability of the Human Rights Act 1998 (HRA 1998). The two paragraphs in which he does so deserve to be cited in full.

31. In her closing submissions, counsel for the mother, Miss Duthie, dealt at some length with the Human Rights Act and Article 8 of the European Convention, and quite rightly said that when the local authority came to make its decision on 5th January of 2005, and when this court makes its decision now, those matters are engaged. However, she had to accept and did accept – very properly – that she could not seek any relief under the Human Rights Act, not least because the Family Proceedings Rule specifically provide the procedure to be followed if you are seeking to invoke the Human Rights Act, a procedure which is designed to enable the people you are accusing of not complying with the convention, enabling them to know precisely what it is they have to meet. I need not take everybody to it, but it is – in fact – Rule 10, Point 26 of the Family Proceedings Rules of 1991, which set out in considerable detail what a person alleging a breach is required to do.

32. Consequently, because in the first place she accepts that she cannot ask me to grant relief under the Act, and secondly, because it would be – it seems to me – wholly unfair on the local authority, when the rules have not been complied with and that proper notice has not been given, and it is right to say that Miss Hudson – for the local authority – did her best, but was very much having to do it 'on the hoof', it would be quite wrong of me to make any findings against the local authority of a breach of the European Convention of Human Rights, and I do not propose to do so. That does not mean that I am not left with some feelings of unease about the way things went, and I am going to deal with those now.

19. The judge then examines the care plan in some detail, and sets out the events between 14 December 2004 and 6 January 2005. He says: -

So the decision was made to remove M on the 6th. It was done without any warning to the mother; without any indication to the mother between 14th December and 6th January that the placement was seriously at risk. Why am I uneasy? I am uneasy for these reasons and this is why – it seems to me – it must look incredibly unfair to the mother."

20. The judge then identifies four reasons for his concern. They are, in summary; (1) that the social worker from Families First, whose job it was to work with the mother, had not been involved, or had any say, in the decision to terminate the placement; (2) the local authority social worker responsible for M was not consulted; and (3) the judge queried whether this really was a case which required an emergency removal. The judge then adds a fourth concern, by asking: "was the removal permanently the right course?"

21. The judge summarises his analysis in paragraph 58 of the judgment: -

58. However, I do think that, with hindsight, there were better procedures that could have been adopted. I think I have tried to set out what they were. I do think there could have been better consultations. Whether or not it would have led to any different decision, I know not, but to simply tear up the care plan three weeks into its existence, when it was recognised that there were all these sorts or problems that could arise, indeed the very support under the care plan was going to help the mother to deal with them, so there was not anything new in any of this. To tear it up at that stage is bound to leave the mother, and indeed the court to some extent, to feel that it was unfair and somewhat precipitate.

22. The judge then had to relate his findings to the application to discharge the care order. He reminded himself that M's welfare was his paramount consideration and that the welfare checklist in section 1(3) of CA 1989 applied. He then asked himself the question: -

If, on the 14th December, the court, considered, as did all the parties, that the evidence in the case – by which I mean, I suppose, in particular the various assessments to which I referred – were such that the child's welfare required a care order, what evidence is there before me to suggest that nine months later, this is not still required?

23. The judge answered his own question in paragraphs 62 and 63 of the judgment, which, with paragraph 66, contain his essential reasoning for refusing the application.

62. No-one has called any evidence to suggest that the child could safely be returned to the mother without the protection of a care order. No-one has called any evidence to suggest that the mother's position has changed so as to make a residence order to the mother viable at this stage. No-one has called any evidence to suggest that the massive support programme, and I use those words deliberately because if you look at it in the care plan, it is a very, very detailed support programme, no-one has called any evidence to suggest that that programme required back in December, if mother and child were to live together, is no longer needed.

63. The risks which were identified by all the professionals and which the care plan sought to minimise, are all present today just as they were before the court on 14th December. Indeed, the mother's own statement – I think the only statement she has made – in support of her application does not seek to suggest otherwise. All that could be said to me by her counsel who is in a very difficult position – as is the mother, because of the law – all that could be said to me was that I could make my own assessment of the mother from seeing her in the witness box, and observing her throughout the trial and her demeanour and that I could, therefore, conclude she had sufficiently matured so that the care order could be discharged."

24. The judge also reported the recommendation of the guardian (who, of course, had been reappointed as a consequence of the application to revoke the care order). The guardian's view was that whilst he could understand why the mother had made the application, a care order remained essential to ensure that M was kept safe from harm and had a chance of a stable and secure family life. The judge said he found himself in the same position. His hands were tied because the position which existed on 14 December 2004 was exactly the same as that which existed on 15 September 2005. The judge thus concluded his judgment by saying in paragraph 66: -

66. If the court thought there were grounds for a care order on the 14th, as indeed did everybody, I cannot see that anything has changed to enable the court to say I should discharge the care order. Where we are all stuck, where the mother and I are stuck, is that Parliament has taken away from the courts the power to regulate the way the local authority discharges its care order once that order is made and I think, in a sense, I have gone round in a complete circle, but there simply is not, if I apply Section 1, evidence which would enable me to say that the interests of this child would justify my discharging the care order. Indeed, on the contrary, the very matters that led the court to impose it in December are still there – the very worries and fears – and one would be bound to say, I think, as of today, that a care order is necessary for the protection of M, and therefore, the application to discharge the care order has to be dismissed.

The grounds of appeal

25. The perfected grounds of appeal are short, and should be cited in full.

"By CPR Part 52.11(3): "The appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

1. The learned Judge was wrong to dismiss the application for discharge of the care order and should have either, (i) discharged the order and substituted a fresh interim care order, or (ii) adjourned the application for discharge.

2. The Judge's decision was unjust because of a serious irregularity and should be set aside because of a failure (through no fault of his own) to consider remedies under the Human Rights Act 1998.

Section 9:

… the appeal court makes the following additional orders:-

An interim care order. Alternatively,

An order remitting the hearing of the application to discharge the care order to either HHJ Rutherford or a Judge of the Family Division. "

The attack on the judgment

26. Mr. Robin Tolson QC, for the mother, properly conceded that before the judge no reliance had been made upon ECHR rights under section 7(1)(b) of the Human Rights Act 1998 as (he says) it should have been. Human rights were raised in closing submissions by counsel for the mother, but only to concede (Mr. Tolson submitted wrongly) that she could not seek any relief under the HRA 1998 because of procedural omissions. Mr. Tolson also accepted that no adjournment had been sought.

27. Mr. Tolson also accepted that the judge was not referred to the body of authority which has built up in this area of the law, including the dictum of Thorpe LJ in Re: P (Adoption: Breach of Care Plan) [2004] 2 FLR 1109 that relief under the HRA 1998 must be claimed promptly or the right to it may be lost. Since the judge had not considered HRA 1998 section 7, Mr. Tolson accepted that it may be open to the mother to bring such an application (coupled with her now adjourned application for defined contact) regardless of the outcome of this present application for permission to appeal. However, he argued that it would be "unjust" within the meaning of CPR, Part 52.11(3)(b) to require her to do this without first setting aside the judge's dismissal of the application to discharge the care order.

28. Mr. Tolson sought to argue that the discretion to discharge a care order under CA 1989, section 39 was not restricted by the statute, save by the terms of CA 1989, s. 1, and in particular by the requirement that discharge must serve the child's welfare. He submitted that the judge's concerns that simply discharging the order would leave the child essentially unprotected in that only his mother would have parental responsibility for him could have been met by making an interim care order. He submitted that the power under CA 1989 section 39(4) to make a supervision order in substitution for the care order "on the application of any person entitled to apply for an order to be discharged" was a sufficient application to invoke the power to make interim orders under CA 1989 section 38(1). Alternatively, he submitted, an interim care order could have been made on the application of the Local Authority. The Judge should at least have invited them to apply.

29. In short, Mr. Tolson submitted that the Judge in fact had the power to return decision-making to the hands of the Court (as apparently he wished to do) without recourse to section HRA 1998 section 7. He should have exercised that power. Alternatively, Mr. Tolson argued that, having expressed the criticisms he did of the local authority, and being aware at least of the possibility of some relief being available under HRA 1998 in principle and but for procedural omissions, it was incumbent on the Judge to adjourn the application to discharge the care order in order to permit the mother to bring on the appropriate application. The proceedings were quasi-inquisitorial in nature and an application to adjourn was not a pre-requisite to the judge taking that step.

30. As to the allegation of serious irregularity, the irregularities upon which Mr. Tolson relied upon were (1) the absence of the appropriate application under HRA 1998 section 7(1)(b); and (2) the failure by the judge to consider the exercise of the powers given to him by HRA 1998 sections 6 to 8.

31. Mr. Tolson advised us that the mother's advisers had, on 12 October 2005 issued an application under HRA 1998 section 7(1)(b) seeking relief within both the ongoing application for contact and the freeing proceedings. He then advanced an additional reason why it would be "unjust" (within the meaning of CPR 52.11(3)(b)) to permit the order dismissing the mother's application to discharge to stand whilst she pursued other remedies. He submitted that she might face the argument that she was estopped from seeking relief under HRA 1998 by the fact that the judge had dismissed the application to discharge the care order and had made findings of fact when so doing; although Mr. Tolson acknowledged that the weight of Court of Appeal authority was against the existence of any strict rule of issue estoppel binding upon any of the parties in children's cases, citing a dictum of Hale J (as she then was) following a review of the authorities, in Re: B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285 at 295D. Thus, Mr. Tolson argued, the order dismissing the mother's application for the discharge of the care order was, at worst, a bar to her prospective application under section 7 HRA 1998. At best - and on what he argued was probably the better view that the mother was not strictly estopped - the dismissal of her application to discharge the care order represented in its own right a significant hurdle for her to overcome. It would in a general sense dominate the landscape in which any other application by her (even her contact application) is heard.


32. Although I have set out Mr. Tolson's argument in some detail, neither of the two grounds advanced in the appellant's notice and set out at paragraph 25 above is, in my judgment, arguable. The judge, in my view, was right to dismiss the application to discharge the care order for the reasons he gave. In reality, no other course was properly open to him. I will, however, deal with Mr. Tolson's various points under separate headings.

The power to substitute an interim order

33. A judge hearing an application to discharge a care order under CA 1989 section 39 does not, in my judgment, have the jurisdiction, if he decides to discharge it, to substitute an interim care order. This is, I think, evident from the relevant statutory provisions. The material provisions of CA 1989 39 read:

Discharge and variation etc of care orders and supervision orders

(1) A care order may be discharged by the court on the application of—

(a) any person who has parental responsibility for the child;


(4) Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.

(5) When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded.

34. CA 1989 section 39(4) plainly defines and limits the court's jurisdiction. If the court is minded to discharge the care order, the only CA 1989 Part IV order which it can substitute for the care order is a supervision order. This construction of the statute is confirmed by the terms of CA 1989 section 38, under which the court is empowered to make interim care and supervision orders. The material parts of section 38 read: -

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 the circumstances with respect to the child are as mentioned in section 31(2).

35. It is, I think, self-evident that an application for the discharge of a care order is not within either CA 1989 section 38(1)(a) or (b). The application to discharge a care order is manifestly not "an application for a care order", and the care proceedings are not pending and being adjourned: they have been completed: hence the application to discharge the order. CA 1989, section 37(1) empowers the court to require a local authority to undertake an investigation into a child's circumstances where "it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him". In an application to discharge a care order, once again, a care order has already been made, and the court is plainly not deciding that it may be appropriate to make a care order in relation to the child. Equally plainly, therefore, the court cannot give a direction under section 37 in an application to discharge a care order.

Should the judge have adjourned the application to discharge the care order?

36. Mr. Tolson acknowledges that no application was made to the judge for an adjournment. In these circumstances, no criticism can, in my judgment, be levelled at the judge for not adjourning the application of his own motion. The judge had heard evidence over three days, and was entitled to make findings on the evidence he had heard. I have to ask myself: why should the judge have adjourned the application? I can see no good reason for doing so, let alone that it was "incumbent" on him to do so.

Serious irregularity

37. The argument here seems to me wholly untenable. There simply was no "serious procedural or other irregularity" in the proceedings before Judge Rutherford. When the application to discharge the care order was before the judge, the mother's advisers had not taken proceedings under HRA 1998. They had not, accordingly, fulfilled the conditions provided by Family Proceedings Rule 1991, rule 10.26(2) which reads:

"A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act—"

(a) shall state that fact in his originating document or (as the case may be) answer; and

(b) shall in his originating document or (as the case may be) answer:—

(i) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement;

(ii) specify the relief sought;

(iii) state if the relief sought includes a declaration of incompatibility.

38. In my judgment, far from the judge's failure to address HRA 1998 being "a serious irregularity", it would have been quite wrong for the judge to have considered such issues without the provisions of FPR 10.26 having been obeyed. So much was properly accepted by counsel for the mother before Judge Rutherford – see paragraph 31 of the judgment, set out at paragraph 18 above.

39. I do not think the manner in which the judge dealt with this issue in paragraph 32 of the judgment can be faulted. Furthermore, in my judgment, it is simply not open to the mother to take such a fundamental point in this court when it was not taken in the court below, and where, indeed, she properly acknowledged that it could not be taken. The simple fact of the matter is that the mother's advisers had not taken separate proceedings under HRA 1998, or sought to rely on the ECHR in the discharge proceedings, and it is, accordingly, not open to them to attack the judge for properly refusing to address something which it was conceded was not properly before him.

The judge's response to the discharge application

40. In my judgment, the judge applied the right test, and reached the right conclusion. Was it in the best interests of the child for the care order to be discharged? That was a separate question from that arising from the manner in which the local authority had behaved in separating M from his mother, albeit clearly related to it. There was abundant evidence that the care order was still required to protect M's best interests. If it was discharged, the local authority would have ceased to have parental responsibility, and would have been obliged to return M to his mother's sole care. The substitution of a supervision order does not appear to have been canvassed before the judge: given the mother's age, and the history of the case, such an order would, in my judgment, have been quite inadequate either to protect M or to provide the framework for any sensible discussion of M's future. M's welfare required the care order to remain in being: that was the judge's conclusion in paragraph 66 of his judgment, and in my view he was plainly right.

41. For all these reasons, I reached the very clear conclusion that permission to appeal in this case had to be refused.

42. In paragraph 3 of this judgment, I identified the issue raised by the case. The outstanding applications, including the mother's proceedings under HRA 1998 now fall to be decided by the judge on 22nd February 2006 in the High Court on their merits. As I made clear in paragraph 6 above, I say nothing about the merits of those applications, which will be for the judge to determine.

Lord Justice Laws

43. I agree.