Court of appeal overturns care order

Judges should not be constrained in their actions by the views
of the local authority, according to the court of appeal on 14
January 2002. In a case named Re B concerning a new-born baby, the
court said that it can use section 38(6) of the Children Act 1989
to order an assessment.

The parents appealed a decision of a county court judge made on
10 January 2002 when an interim care order was made in relation to
their new-born baby, ‘B’. The parents had six other children, all
of whom were the subject of care proceedings which started in
January 2001. The high court had found in October 2001 that the
threshold criteria had been established on the basis of concessions
made by the parents, and the disposal hearing was set for 11
February 2002.

The local authority’s plan was to remove B for adoption, a plan
made before he was due to be born in mid-January. In November 2001,
the guardian ad litem asked the local authority to arrange a
residential placement for the parents and the new baby, which it
refused in December 2001. The local authority stuck to its policy
decision and would not engage in a meaningful consultation process
on the matter. The judge had wanted the parents to meet a doctor to
see if they had changed since the hearing in October, but that
meeting did not occur.

B was born on 30 December 2001 and on 2 January 2002 the local
authority swiftly applied for an interim care order to separate B
from his parents. The hearing was adjourned until 8 January 2002
and was put before His Honour Judge Tyrer, who unsuccessfully made
every effort to try and bring proceedings before Mr Justice
Kirkwood. At the hearing it became clear that the local authority’s
view regarding a residential placement was based on the wrong
assumption that this case involved a first-experience teenage

When it was realised that this was not the case, the parents
were sent to a centre for assessment. The guardian ad litem
supported this, and planned that B and his mother should move to a
nearby residential lodge, and the judge hoped that the local
authority would agree – but it did not and said it would proceed
with the plan to separate B from his mother, placing him with a
foster mother who would not allow parental visits.

The judge thought that his power was dictated by the local
authority, and that he only had the power to grant or refuse an
interim care order and not impose conditions, whereas the parents
said he should exercise his discretion and balance the advantages
and disadvantages of B being placed in foster care, and also that
he was wrong in law to find that he had no power to direct a
residential placement on the making of an interim care order.

The two appeal judges stated that the case was obviously a
difficult one for the judge, and in less than perfect
circumstances. Extra submissions were heard regarding the
residential centre and the effect it could have. The appeal was
allowed on 4 grounds:

(1) It was clear the judge was unhappy with the local
authority’s decision because he decided to ensure that B was cared
for within an adjacent London borough until the hearing, and he
also directed the pre-residential assessment as well as a doctor’s
assessment of the parents’ current standing.

(2) The centre would need to see the family together in normal
settings and at the centre itself. The centre focused on parents’
ability to learn the necessary parenting skills, and was not just a
hostel as it had the resources and skills to carry out an accurate
assessment of their capacity.

(3) The key issue was whether the judge was right to have
regarded himself as bound by the decision of the local authority to
separate B from his parents as soon as the interim care order was
issued. Section 38(6) of the Children Act does empower a court to
make directions as it thinks “appropriate with regard to the

(4) The placement would be the right one for the parents and for
B, and the judge was wrong to have decided as he did just because
of the local authority view.

Bernadette Livesey

Human Rights Solicitor

Walker Morris 



More from Community Care

Comments are closed.