Case tests powers of judge in care proceedings

This is a situation which has arisen before and will
increasingly happen again (especially after the Re W and B cases in
the court of appeal on 23 May whereby courts will increasingly
review matters). The dilemma arose in the case of Re
K, heard in the court of appeal on 21 August 2001.

A baby (S) was the subject of interim care proceedings on 2 July
2001. When the matter came before the family proceedings court, the
magistrates did not grant the interim care order requested, but
made an interim supervision order. The Guardian ad Litem (the GAL)
supported the local authority’s decision to appeal and the
matter came before the high court on 11 July 2001, but no judge was
available. The matter was then transferred to the local county
court for a hearing in the near future, but by then the GAL had
changed her opinion and no longer supported the local authority. A
date was set for a contested hearing on 23 July 2001. On that date
the judge made an interim care order for 28 days.

The father of S appealed saying that the local authority had
created the situation whereby effectively the county court was
hearing the appeal from the decision of the magistrates (when it
should have been the high court) whose decision had set out what
should happen until the final hearing. Unless there was a
fundamental change in circumstances, that decision (a supervision
order) should have stood unless the baby’s safety was at
stake. The father said that no such change had occurred, in fact
all that had happened was that the GAL had investigated and decided
to recommend that S should remain with her parents, so backing his
stance.

The court of appeal dismissed the father’s appeal saying
it was vital to remember that S’s interests were their
paramount consideration. Their starting point was that once the
magistrates had reached the conclusion that a supervision order was
appropriate, that stood unless and until varied by a judge. Once
the magistrates had acted to regulate a child’s life through the
interim stages of care proceedings, this could only be varied by a
significant change of circumstances.

The main issue was whether it was open to the judge to reach the
conclusion he did and make the interim care order. He had heard
further evidence which was not available to the justices, including
oral evidence from a social worker. The court of appeal was firm in
their opinion that the judge undoubtedly had the power to act as he
did. Even if (on the facts of the case) they had reservations, the
most they would do would be to remit the case to the county court
for a retrial.

The next review of S’s situation will be in the county
court, on 20 September 2001 or 12 October 2001. The court of appeal
judges also considered what had been agreed between the parties on
11 July 2001 when there was no judge and so no hearing, implying
criticism of the GAL saying that she should have made it clear that
she consented to the transfer of the proceedings to the county
court purely on the basis of the complexity of the case and its
likely length, not to enable the local authority to obtain a
substantive rehearing.

Comment

The court has the power to review the situation of the child
each time it considers a case, whether or not an interim
supervision order, interim care order or any other order is applied
for. Indeed it must do so. The appeal from Manchester
magistrates’ court was only on the high court ‘at
risk’ list, no judge was guaranteed to hear the case and none
in fact was able to do so.

The next step, the pragmatic one of transferring the case to the
care centre, effectively ensured that the appeal could not be
heard. One cannot blame the county court judge for wanting to hear
evidence from disputing parties and making his mind up as to what
was in the best interests of the baby – that is his job. One
is, however, left with a feeling that somehow the father was not
able to enjoy the success he gained in the family proceedings
court.

Bernadette Livesey

Human Rights Solicitor

Walker Morris