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Judges should not interfere with interim arrangements agreed between all parties at uncontested directions hearings without at least giving the parties the opportunity to be heard. That was the view of the court of appeal in the case of Re M brought by the child's guardian ad litem.

M was a four year old child (with a mother with a history of drug abuse) who lived with his grandmother and her husband. The local authority had initiated care proceedings in June 2001. All parties agreed to an interim care order and directions (which were to include the instruction of a psychiatric expert) were to be considered at a hearing on 26 July.

When the hearing was held the mother, the guardian ad litem, and the local authority were represented by barristers but were not in court themselves and the grandmother came without her solicitor. The judge approved only one of the agreed directions and 'of his own motion' made an interim residence order in favour of the grandparents (subject to them complying with contact conditions between the child and the mother imposed by the local authority), and refused to renew the interim care order. He would not allow a psychiatric expert to become involved to advise the court.

The guardian appealed arguing that:

1. the hearing was procedurally incorrect

2. that the judge had been wrong to make the interim residence order, and

3. that the judge was wrong not to instruct a psychiatric expert

The grandparents argued that the child had settled with them and that the residence order should remain.

The court of appeal allowed the appeal and set aside the order of circuit judge. Lord Justice Thorpe and Mr Justice Wilson said that as the case was at such an early stage and all the parties were agreed, the judge was wrong to have refused the order for expert evidence. Judges have a broad discretion regarding the conduct of hearings and should avoid any unnecessary investigations, but they are not 'a rubber stamp' and can always refuse to make consent orders if they consider this not to be in a child's interests.

In this case, before making a completely different order the judge should at least have given the parties a chance to make representations and heard evidence. One key issue concerned the mother and the judge should not have made findings which prejudiced some of the important issues in the case without hearing evidence.

In addition, the judge should not have overridden the guardian's advice when he was not in court, and no explanation had been given for rejecting the guardian's position. The guardian was correct in law that the judge could not attach condition to an interim residence order because he could not impose obligations or conditions on persons not listed in s.11(7)(b) of the Children Act. The court made an interim care order and the agreed directions were made.

Comment

This case shows the court of appeal treading a fine line between upholding the powers of judges to manage cases and take decisions in the interests of the child, and ensuring that there are no surprises when parties arrive for uncontested hearings or directions hearings, including the matter of expert evidence. The key here was that the judge did not allow representations to be made to him about what he was considering, nor hear any evidence about what the effect would be. That he was wrong in law on the contact point was the 'last straw' for the court of appeal, who reinstated the original agreed orders.

Bernadette Livesey

Human Rights Solicitor

Walker Morris