Judge wrong not to hear all evidence in care hearing

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

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

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


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

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