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G (A Child) [2008] EWCA Civ 86

Application by mother for permission to appeal, with appeal to follow, interim care order placed on her son. Application allowed but appeal dismissed.

The mother was appealing the interim care order arising from the case where Nottingham City Council had been found to have unlawfully removed the child at birth as no care plan had been in place. A subsequent, properly constituted interim care order resulted in the child being placed in foster care but with regular contact with the mother.

In the Court of Appeal, Wall LJ confirmed that the district judge had been within his discretion to make the care order given the material he had before him; the issue here was what should happen next. He concludes that the matter should be transferred to the High Court and for Munby J to consider whether a s38(6) assessment should take place.


Case No: B4/2008/0259
Neutral Citation Number: [2008] EWCA Civ 86
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 7th February 2008


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(DAR Transcript of
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Mr I Wise and Ms C Gallagher (instructed by Bhatia Best Solicitors) appeared on behalf of the Appellant Mother.
Mrs R Rowley (instructed by Nottingham City Council) appeared on behalf of the Respondent Authority.
Mrs B Gilead appeared on behalf of the Respondent Father.
Miss Mulrennan appeared on behalf of the Respondent Guardian.
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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Wall:
1. The mother of a new born child, a boy who will be identified by the initial K, seeks permission to appeal against an interim care order made by HHJ Inglis, sitting in the Nottingham County Court on 1 February 2008.

2. K's mother, whom I will call G, was born on 31 May 1989, so she is 18. She has, on any view, had a very difficult and disrupted life. K himself was born in hospital in Nottingham in the early hours of 30 January 2008. Very shortly afterwards, the local authority, acting pursuant to the minutes of an inter-agency pre-birth child protection case conference and a subsequent "birth plan prepared for the hospital staff by the [local NHS primary care trust]" removed K from his mother's care and placed him in a separate ward in the hospital.

3. G is, of course, now an adult. However, she had previously been in the care of the local authority, and it is not disputed by the local authority that G was entitled to look to it for continuing support under the leaving care legislation. Her case is that what is known as the "pathway plan" prepared by the local authority is sufficiently deficient as to be unlawful and she has therefore issued proceedings for judicial review of the plan in the Administrative Court.

4. As it so happened, the judicial review proceedings, which had, of course, to be issued in the High Court came before Munby J, sitting in London on 30 January. The judge was told of the local authority's removal of K from his mother's care. It was plain, and was not disputed by the local authority, that it had not obtained any prior court order permitting it to remove K, and that the removal was, as a consequence, unlawful. Munby J accordingly made a peremptory order requiring the local authority forthwith to reunite mother and child, and that order was immediately put into effect.

5. The local authority did then what, of course, it should have done in the first place, which was to issue care proceedings. It did so on 30 January 2008. Care proceedings have, of course, to be issued in the Family Proceedings Court, but can be swiftly transferred upwards. That is what happened in this case, and the local authority's application for an interim care order was heard in the county court by HHJ Inglis on 31 January 2008, and 1 February 2008, when he gave judgment. We have before us an excellent note of that judgment.

6. Speaking for myself, and without going into details, I am entirely satisfied that the judge was entitled to make an interim care order on the material available to him. I do not wish to embarrass G or to burden this judgment with any unnecessary citation of fact; but, as I say, in my view, the order which the judge made was one plainly within the exercise of a proper judicial discretion under section 38(1) and (2) of the Children Act 1989. Indeed it is conceded by Mr Wise this afternoon that the threshold criteria under section 38(2) of the Act are met and, in my judgment, as I say, the exercise of the judge's discretion in making a care order was in the circumstances almost inevitable.

7. That of course leaves a large number of questions unanswered. The child at the moment is in foster care and the mother, we are told, has contact with him on five days a week for three hours at a time. The critical question which in due course a judge of the Family Division or a circuit judge will have to decide is what should happen to this little baby; what should happen to K?

8. This afternoon, discussion has focused on the next step. Judge Inglis decided that it should remain in the county court and he made a number of directions which, if I may say so without disrespect to him, are in very conventional form. He directed that the case should be allocated to himself and to HHJ Butler QC, the designated family judge for Nottingham. He adjourned the case to a case management conference on 14 March at 3:00 before himself, with an hour set aside. He directed the local authority to file and serve its assessment of the maternal grandparents on or before 4pm on 22 February. He directed the local authority to file and serve contact notes relating to the mother and father's contact with the child on or before 4pm on the same day; and he gave the local authority permission to obtain a transcript of his judgment at its own expense, thereafter to be served on all the parties.

9. This is a very difficult and sensitive case. The critical question, as I say, for a judge in due course is whether or not mother and baby can remain together, whether mother is capable of caring for this child and, if so, whether it is in his interests to remain in her care. I say nothing of the father at this stage, whose position is not fully known to me. The mother's position before us this afternoon is that she would like there to be a viability assessment to be carried out by that well-known institution, the Cassel Hospital in Richmond. Through her solicitor she has approached the Legal Services Commission who appear to have indicated that funding will be made available to her on her certificate for such a viability assessment. It is also apparent from what Mr Wise has told us this afternoon that the viability assessment itself can be carried out swiftly. It will involve a representative of the Cassel interviewing the mother and, in all probability, observing the child's contact with the mother during one of the contact periods. Those contact periods, we are told, take place in the local authority's offices and, of course, it would seem to me eminently straightforward for a visit by a representative of the Cassel to be facilitated for that purpose.

10. Mr Wise therefore invites us this afternoon to direct the release the case papers to the Cassel Hospital to enable a viability assessment to be conducted and, subject to the question of funding, to direct that that viability assessment be undertaken as quickly as possible, and certainly prior to 18 February. The reason the 18 February becomes relevant is that Munby J has set aside that day in Liverpool in order to hear the judicial review proceedings – that is, as we understand it, both the application for permission, and the substantive proceedings if permission is granted.

11. As I indicated to Mr Wise at the outset of the argument, I have taken the opportunity to speak to Munby J and he tells me that he would be able to accommodate the care aspect of this case at the same time on the same day, 18 February, in Liverpool in his Liverpool list.

12. In my judgment the only criticism, I think, which I could even begin to make of HHJ Inglis was that where there is a case which plainly involves, as this does, judicial review proceedings in the Administrative Court and care proceedings, it would be sensible at least at the early stages for the case to be case-managed by a judge who has jurisdiction to sit in both; and plainly HHJ Inglis does not have jurisdiction to sit in the Administrative Court, nor indeed, as I understand the matter, does HHJ Butler.

13. Speaking for myself, therefore, it would seem to me the sensible course would be to transfer the care proceedings to the High Court for the purposes of the hearing on 18 February before Munby J, at which he will decide whether or not there is to be a full residential assessment of this mother and child under section 38(6) of the Act, either by the Cassel or by some other institution; whether or not either is practicable and in the interests of J; and whether or not the matter should be transferred back to the county court to be dealt with by the judge.

14. After discussion with counsel for the local authority, the local authority has agreed to use its best endeavours to serve its assessment of the maternal grandparents on or before 4pm on 17 February. We appreciate very much that that date has already been brought forward and Mr Wise, in my judgment wisely, accepted that the proper course here was to accept a "best endeavours" offer by the local authority given the difficulties that will be involved.

15. There is, of course, less difficulty about producing the contact notes, but we are anxious if possible that Munby J should have everything before him on 18 February so he can consider the position as fully as may be. It will of course be a matter for Munby J on 18 February whether or not there is to be a direction for an assessment by the Cassel and if so, who should pay for it. It will be open to him on that date to decide whether or not there should be some other form of residential assessment of mother and child; or whether there should be no assessment at all. I say nothing about those matters. They will be for the judge on 18 February and will be a matter entirely for an exercise of his discretion under section 38(6) of the Act.

16. There is an anxiety at the bar, and not surprisingly, about the funding of the assessment if it is to take place. But I, speaking for myself, see no difficulty, in the first instance at least, about the viability assessment being carried out by the Cassel on the initiative of those instructing Mr Wise. Clearly the local authority and the guardian will have time between now and 18 February to consider their position, and, in particular, to consider their position in the light of whatever emerges from the Cassel. There is, I think, common ground at the bar that at least in the first instance the question must be to decide whether or not it is viable for this mother and child to live together, for the mother to care for the child. If it is not, alternatives will plainly have to be considered.

17. Speaking for myself, therefore, I would grant permission to appeal. I would dismiss the appeal against the interim care order but I would vary the judge's order along the lines that I have indicated and direct that the next hearing take place before Munby J in Liverpool on 18 February. For the judge's assistance I will direct a transcript of my judgment and any judgment my Lord gives will be made available to the judge on that day so he can follow why it is that this court has taken the steps it has.

Lord Justice Ward:
18. My judgment is simple. I agree.

Order: Application granted; appeal dismissed.