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OC & OE (Children) [2013] EWCA Civ 162

Mother’s appeal against interim care orders made in respect of her two youngest children.

The local authority had been conducting investigations of the children's circumstances and were considering applications for care orders when the mother removed the children to Ireland. As a result the local authority applied for both interim care orders and orders for the summary return of the children. Those orders were granted by the circuit judge, although no considered findings were made that the interim threshold had been crossed.

The mother appealed. Thorpe LJ, giving the lead judgment of the Court, allowed the appeal. The first instance court had too quickly acceded to the application for interim care orders, despite the local authority conceding that, but for the abduction, no proceedings would have been brought. The right approach was to restore the children to the status quo ante, in their mother's care in England; it did not follow that the making of a return order required interim care orders as well. The interim care orders were therefore set aside and substituted with location orders securing the children's whereabouts and ancillary orders about the passport and other matters. Moses and MacFarlane LLJ agreed.

SUmmary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Case No: B4/2013/0096
Neutral Citation Number: [2013] EWCA Civ 162


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday, 14th February 2013





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(DAR Transcript of WordWave International Limited
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The Appellant appeared in person assisted by McKenzie friend Ms Janice Downes.
Mr Keith Miller
(instructed by Middlesbrough Council) appeared on behalf of the Respondent.
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Lord Justice Thorpe
1. This is the appeal of Ms O against the order of HHJ Michael Taylor sitting in the Middlesbrough County Court on 19 December 2012.  Mrs O is the mother of four children, C, A, OC, and OE.  She takes no part at all in relation to orders obtained by the local authority concerning C and A, and is content for the interim care order which expires today to be renewed in relation to those two elder children.  The appeal turns only on the judge's order relating to OC and OE.  The local authority were carrying out investigations in the Leicester area in December, as a result of which they obtained information which in their view justified the commencement of public law proceedings.  The two elder children were already in local authority accommodation, but the two younger children were seemingly safe and well in their mother's accommodation, and the information that the local authority had obtained would not necessarily have triggered the initiation of public law proceedings had the mother not removed herself and the children to Ireland on 7 December.  That was interpreted by the local authority as a calculated evasion of applications which they were poised to launch in relation to the children.  Accordingly, it radically affected the concerns of the local authority and their attitude towards the mother.

2. So on 17 December 2012 they prepared a document stretching in our bundle from page 123 to 148, therefore a 25-page document, setting out their current concerns.  The local authority lawyer, Mr Lamb, handed that document into the court on 19 December, and he supplied it to the guardian.  The proceedings had been initiated in the Family Proceedings Court, but immediately transferred to the county court, given that the local authority were seeking both an interim care order in respect of the two younger children, but also an order for their summary return under the European Convention.  The European Convention is very seldom invoked since it is, as it were, overshadowed by the Global Convention, which applies equally amongst European Member States.  But that Convention was relied on by the local authority, and their advocate, Mr Lamb, frankly conceded to the judge that he was not operating in legal territory familiar to him. 

3. The hearing before HHJ Taylor was a brief one.  The transcript runs to over some four-and-a-half pages, and after Mr Lamb and the judge had exchanged pleasantries, and the judge had made Mr Lamb aware of an email he had received from the children's father, Mr Lamb asked the judge whether he had seen the case summary.  The judge said yes, but then obviously doubted whether he and Mr Lamb were referring to the same document.  The judge asked if there was a file; Mr Lamb said there is in the bundle but that he proffered a draft order.  The draft order was questioned by the judge.  He said "What order are you seeking today?"  Mr Lamb said "Interim care orders in relation to all four children".

4. So it seems to me that this case went off the rails when we see at 35 on page 67, the judge asked the question:

"So what are you going to do if I make an interim care order?  Are you going to ask for a return order as well?"

That, in my view, was to put the cart before the horse.  The judge should first have considered whether he was going to make a return order.  That order was amply justified on the circumstances of flight which resulted within a day or two of the local authority notifying the mother of their intention to issue proceedings.  But it did not follow that an interim care order was also one to which the local authority was entitled.  HHJ Taylor is a specialist judge of very great experience and, as this transcript demonstrates, he has a great deal of skill and experience in case management.  He was plainly concerned to get these children back within his jurisdiction, and he was plainly concerned thereafter to exercise that jurisdiction speedily and pragmatically.  So he set the interim care order, limited duration, hearing in front of him, as soon after Christmas as it could be arranged.  All that is model case management.  But the flaw is in the too ready acceptance of the draft order proffered by the local authority which included within it what is a draconian order separating mother and children, even if only on an interim basis.  For it is conceded that had the mother not fled the jurisdiction, the local authority could not have thought this was a case justifying an interim care order application.  It is also evident from the transcript that social services in Ireland had made investigation and had established that the children in the care of the maternal grandmother were fit and well and, as the judge himself added, well turned-up. 

5. So in these Convention cases the essence is to get the abducted children back into the jurisdiction as quickly as possible, but it is another fundamental of the proper operation of the Convention that as far as possible they are returned to the status quo ante.  Accordingly, there was absolutely no presumption that the making of the return order necessarily entailed the making of an interim care order.  The assumption should have been that on return they would return to the care of their mother, pending further welfare investigations.  So it is manifest that the proceedings before the judge, insofar as they resulted in an interim care order, were precipitate, and did not rest upon the necessary considered findings that the section 31 threshold had been crossed.

6. The children are back. The only order that is vulnerable is the interim care order; I would set it aside.  However, it is clearly in the interests of the children that their immediate return to their mother's care should be secured against the risk of any future flight.  Mrs O accepts that.  Adopting Lord Justice McFarlane's suggestion as to the necessary safeguard, a location order specifying that the children reside at the mother's address, [an address], in Middlesbrough, and alongside the location order ancillary orders about the passport and other matters, I would simply allow the appeal and set aside the interim care order.

Lord Justice Moses:
7. I agree.

Lord Justice McFarlane:
8. For the sake of clarity, I stress that the interim care orders that we are setting aside relate to the younger two children, OC and OE.  It is agreed by the mother and the local authority that the interim care orders for the older two, C and A, should continue.  They would otherwise expire at 5.00pm today.  We therefore, with the agreement of the parties, make a fresh interim care order from today for a further 28 days.  Otherwise I agree with all that my Lord, Lord Justice Thorpe, has said.

Order:  Appeal allowed.