Judge should have recognised public law aspects of care order hearing

Private law proceedings are not the right vehicle to deal with
public law issues, and decisive expert evidence that children are
at risk of emotional harm should not be rejected where there is no
contradictory evidence. Also, guardians’ evidence should be heard
where it is needed. That was the decision of the court of appeal in
RE B (CHILDREN) (2002).

The facts were that the father (F) and his wife (W) were married
in 1990. In 1995, F started a relationship with another woman (M)
and they had two children. A pattern developed that when F’s
marital relationship waned, the relationship with M improved and

Due to M’s state of mind, in November 2000 the local authority
decided to put both the children’s names on the child protection
register on the basis of their emotional abuse. In April 2001, F
was granted unsupervised interim contact with the children every
Saturday at fixed times, and the local authority was ordered to
refer the case to a special monitoring centre nearby.  In June
2001, the court ordered the family to undergo a multi-disciplinary
assessment, resulting in a report (signed by two doctors and a
senior social worker) which stated that if the emotional abuse
continued then the local authority ought to consider child
protection for the children. It also indicated a feeling of
“guarded optimism”, and suggested that M should re-focus her
attention on the children.

In December 2001 F taped a telephone conversation with M during
which she told him that she would kill herself and the children
unless her life improved. In February 2002 F took the tape to the
local authority which in March 2002 applied for an emergency
protection order, which was refused. 

The local authority applied (procedurally improperly) via the
principal registry for an interim care order without notice to M. A
district judge, after initially declining to make that order, did
grant the application on the basis that M was told. A guardian was

The case was transferred to the high court for hearing on 18
March 2002 before Nicholas Mostyn QC, who decided to discharge the
interim care order pending arrangements for a final hearing. The
judge was of the view that there was no need for the local
authority to be involved in the case, and categorised the
proceedings as contested cross-applications for residence orders –
effectively as a private law case.

The local authority appealed saying that the judge was
(i) because he was not required to make a final decision at the
interim hearing stage
(ii) to discharge the interim care order, because he had before him
written and oral submissions to the effect that it was not safe to
return the children to M
(iii) to have twice refused to hear evidence from the guardian ad
litem who had carried out extensive interviews with all the parties

The three-man court of appeal allowed the appeal, and considered
that the judge’s attempt to promote the welfare of these children
within private law proceedings was unattainable and made the
interim care order saying :
1. That it was necessary to recognise the broad range of discretion
the judge had in a difficult and unusual case like this, which he
had taken on without any opportunity for reading or reflection
before he commenced the hearing; that he had taken great care and
had given judgement extemporaneously, at the end of a long day and
with time constraints.
2. They could not work out how he could have concluded that there
was no public law aspect to the case, which was clearly wrong.

The judge might have concluded that the recorded telephone
conversation had been rhetoric or melodrama, but should also have
acknowledged the troubled history and way M cared for her children
and that returning the children to her exposed them to the severe
risk of emotional abuse and a distorted development. It was not
open to the judge, in the face of decisive expert evidence that the
children were at risk of emotional harm, to have effectively
rejected that evidence in the absence of any contradicting
3. The judge was again clearly in error in not letting the guardian
go into the witness box. He had had a broad discretion, but given
the facts and circumstances of this case, her evidence was needed
and the judge’s decision to refuse it was plainly wrong.

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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