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B (A Child) [2007] EWCA Civ 556

Appeal by parents against directions in care proceedings that prevented the instruction of an expert. Appeal allowed to limited extent.

The appeal was allowed partly because the mother announced that she was going to separate from the father, who was perceived as the greatest threat to the welfare of the child. Thorpe LJ also made the point that the proceedings must be seen to be fair when the potentially permanent loss of a child is at stake.


Case No: B4/2007/0661
Neutral Citation Number: [2007] EWCA Civ 556

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 16th May 2007



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(DAR Transcript of
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Mr R Tolson QC (instructed by Messrs Hancock Caffin) appeared on behalf of the Applicant.

Ms J Hall (instructed by Messrs John Boyle & Co) appeared on behalf of the Respondent Father.

Mr F Feehan (Messrs Hine Downing & County Legal Service) appeared on behalf of the Respondent Local Authority.

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(As Approved by the Court)
Lord Justice Thorpe:
1. On 22 March HHJ Vincent, sitting in Truro, gave directions in a care case brought by the local authority to determine the future of a little boy named J, who had been separated from his parents at the outset because of the very worrying history of dangerousness in both the father, who is roughly twice the mother's age, and in the couple, who have spectacularly failed to provide good enough parenting for an earlier child. So at this first directions appointment, HHJ Vincent was rightly concerned to keep the future proceedings within tight boundaries, giving proper reflection to the history and the past litigation concerning the older born child, A, with which he was completely familiar having delivered the judgment that directed A on the road to adoption.

2. At the directions hearing the objective of the representative of the mother and of the father was to persuade HHJ Vincent to allow the instruction of experts. The local authority had conscientiously prepared their application for a care order, founding themselves on reports from Dr Doble, Ms Long and Elizabeth Gates, who had all been involved in the earlier proceedings relating to A. All of them were clear in their opinion that the prospects for the new baby were extremely poor if left with the natural parents and so the local authority's case was already fully-fledged and strong.

3. HHJ Vincent accepted well articulated arguments from counsel for the local authority that the experts whom the parents sought to instruct would really add nothing. Indeed, in relation to the Independent Social Worker, Karen Tudor, whom they sought to instruct, the judge completely concurred with the local authority's submission that that lady really had nothing of relevance to say because the issue in the case was not the mother's capacity to do ordinary motherly things but rather the risk that the father posed, both to the mother's stability and to any child in the family.

4. In his brief judgment the judge explained that the instruction of Karen Tudor would be to miss the point. It would simply result in an assessment of something that did not represent the major impediment to natural parenting. His judgment was immediately challenged with a Notice of Appeal, I think filed on the following day, but unfortunately it did not get to Ward LJ until 8 May, when he ordered this expedited hearing.

5. Mr Tolson QC, who was brought in for the appeal, served a very long skeleton argument in which he criticised many aspects of the proceedings of 22 March. He said that HHJ Vincent had proceeded down tramlines which he had himself crafted as some sort of Truro practice, whereas he should have followed the national protocol. Mr Tolson criticised the restrictions that HHJ Vincent had put upon the parent's ability to test the three experts that the local authority had marshalled. He asserted that the Article 6 and 8 rights of his client had been disregarded. He accused the judge of not actual but perceived bias and sought trial before some other judge. A separate notice was filed on behalf of the father and we had the advantage of a skeleton and position statement from Ms Hall.

6. Now the case has taken a perfectly predictable turn as a result of the first consultation between Mr Tolson and his client at court this morning. On instructions he says that his client will separate herself immediately from the father -- she is able to do so, since he is a mere licensee in her home -- and that she seeks assessment as a single parent now, as it were, removed from the danger that the father represents. Ms Hall's valuable contribution has been to investigate what expertise is available to assess this new case and she particularly draws attention to the expertise and the availability of Dr Banks. The consequence of instructing him would be to vacate the fixture at risk on 21/22 June, but it would not in any way jeopardise the guaranteed fixture on 13/14 September.

7. We have to decide this narrow point, giving due weight to the very skilful argument addressed by Mr Feehan that these three experts are scarcely challenged in their opinion and that the new case that is sought to be advanced today simply lacks any sort of credibility given the mother's history of repeated failure to carry through what she now is said to intend.

8. I, looking at the case in the round, reach the conclusion that it is probably sensible to allow the parents to instruct Dr Banks. It is very important that parents who are at risk of losing a child forever should have confidence in the fairness of the proceedings and that inevitably means the even-handed nature of the proceedings. Furthermore, if Dr Banks shares the opinion of those who have already spoken, there must be a measurable chance that the anticipated two-day final hearing will either be unnecessary or can be abbreviated.

9. The attack on the language of HHJ Vincent's short ruling on 22 March does not impress me. It is suggested that he has pre-judged the issue and has given the clear message to the parents that he is effectively only going through the motions as a prelude to granting a care order. But I do not think that is a fair interpretation of what he said. He quite reasonably drew attention to the significance of the updated evidence from Dr Doble and Elizabeth Gates and he went on to say:

"The court will retain an open mind about these proceedings but by the same token it is not in a position to ignore that evidence base. There are profound difficulties in the way of either parent parenting this baby. And the outlook, frankly, is extremely bleak for either of them. It would be doing an unkindness to give them any other impression at this stage."

10. In my view that is a perfectly proper indication for a judge to give in a case where the adverse messages from the history are so strong. The criticism is mounted by Mr Tolson as the basis for an application that we should shift the direction that the trial should be before HHJ Vincent. I would not accede to that application, for the simple reason that I do not think that its foundation has been made good. There will necessarily be consequential amendments to the directions of 22 March once permission to release the papers to Dr Banks has been given. No doubt counsel can agree between themselves the necessary revisions and hand them in to the learned associate.

11. To that limited extent I would allow the appeal and emphasise that it is upon the basis that the landscape surveyed by HHJ Vincent in March is a very different landscape now in May. The mother's determination to separate is recently stated and the key issue now becomes her capacity to do that.

Lord Justice Gage:
12. I agree.

Lord Justice Toulson:
13. I also agree.

Order: Appeal allowed.