S (a child), Re

This is a case to which reporting restrictions will apply and I therefore propose throughout to refer to the parents of the child concerned as the mother and the father and, as to the child, I propose to identify him only by the initials AS.

On 23 July 2007 Wilson LJ gave permission for the father to appeal against an order made by HHJ Vincent, sitting in the Truro County Court, on 22 June 2007. The child in question is now aged four, having been born on 12 August 2003.

The order made by the judge was an interim care order which resulted in the child being removed from the care of his father and placed with a foster mother. The father appeals against that order. The order made on 22 June, which was a Friday, was implemented on that same day, with the consequence that, for the past eight weeks or so, the child has been living with foster parents and seeing his father four times a week for a period of two hours at a time. He also sees his mother once a week for an hour.

The father’s appeal is predicated on the basis that the order should never have been made in the first place, and accordingly he asks for this court to set it aside. Unfortunately, however, as will be apparent from the dates, the care order, which was due to last eight weeks, has in fact expired, and has, we are told, been renewed by consent until the determination of the appeal today. In the circumstances, to which I will refer only very briefly, we have come to the conclusion that the proper course in this case is for the continuation of the fresh interim care order, that order to be the subject of consideration by a judge at first instance. Following inquiries by the parties, we have been told that a date is available on 12 September 2007, unfortunately in Torquay rather than Exeter, but the judge is available to hear the case on that day. We have had discussions with the Bar; we take the view that this is a case which can be dealt with on an interim basis in a day, provided it is a full day. We have also been told by the Bar that, frequently, when listings occur on the western circuit, a whole day’s case does not get a clean start, and indeed this case, which should have taken a day, took two and a half days because, we are told, it did not get a clean start on either day one or day two. It is, therefore, essential in my view that this case is listed for one day with a clean start, and that there is nothing else in the list before the judge on 12 September.

The final hearing date for the care proceedings is not until February 2008, hence the urgency for reconsideration of the interim position. Speaking for myself again, it would be preferable if the same judge who takes the interim hearing could take the final hearing in February, and that is a matter which I think should be discussed before the judge on 12 September to see if it is a practical possibility.

The direction we will therefore give is accordingly that the interim care order will be extended until 12 September, when its renewal will be considered by HHJ Russell, sitting in Torquay with a time estimate of one day. The parties have agreed a timetable for evidence, and we will invite counsel to draw up an order and give it to the associate so that it can form part of the order of this court.

This leaves two matters as far as I am concerned. The first is the practical matter as to what we do with the appeal. Since the original interim order has expired, my view is that we should dismiss this appeal, but I make it quite clear that I do so without any consideration of its merits. I would dismiss it simply because, in my view, the proper course now is for the order to be reconsidered on the ground after the expiry of the interim order by a circuit judge, and that is what we are directing; therefore the fact that we dismiss this appeal says nothing in my mind about its merits.

As I indicated earlier, it seems to me that this case raises a number of unsatisfactory features, and I wish to deal with simply one of them so that the profession is given information about what can and cannot occur. As I indicated earlier, the order was made on a Friday. The appellant’s notice, which was filed on 3 July, seeks a stay of the judge’s order but the judge’s order had, of course, been implemented, and there was no application to this court for a stay, save for the request in the appellant’s notice. In these circumstances I regard that as highly unsatisfactory, given that the father’s case was the child should never have been removed.

What could have happened -- I forebear to say should have happened -- what could have happened is as follows: the judge could have been asked for a stay. If he refused it, he could have been asked to delay implementation or enforcement of the order for a sufficient period of time to allow the appellant to approach this court. As I say, 22 June was a Friday. The judge could have been asked, for example, to delay the implementation of the order until close of business on 25 June, and if he refused to delay it, and if he insisted on the order being implemented on 22 June, counsel for the father could have made immediate contact with this court by telephone, and could have asked for an urgent stay until an on-notice hearing, which would have taken place on 25 June or shortly afterwards.

Had that occurred, it is highly likely that this court would have listed the application for permission to appeal as a matter of urgency, with the appeal to follow if permission was granted. Whether it gave permission or refused it, this court is also likely to have given robust case management directions, designed to ensure that the substantive proceedings were heard swiftly. This case has plainly drifted on the ground in a wholly unsatisfactory manner, and, in my view, it is quite unacceptable for there to be a final hearing date as long away as 18 February 2007, in proceedings which have been going on for the best part of, if not more than a year. I repeat, therefore, and reemphasise, the practice in this court in relation for urgent applications related to children. In office hours, a potential appellant who wishes to apply for an immediate stay should contact the Court of Appeal office at the Royal Courts of Justice on the conventional telephone number, 0207 947 6000; out of hours, such an appellant should contact the security offices of the Royal Courts of Justice, 0207 947 6260. In either event, the appellant will be able to speak to a Deputy Master who, in turn, will speak to a Lord Justice. Provided the latter is satisfied that the matter is appropriately urgent, and a short stay is called for, he or she will either grant a stay, or arrange for the matter to be listed at short notice for a short oral hearing, on notice to the other parties, within the time frame permitted by the judge at first instance. If the court is then satisfied either that permission to appeal should be granted or that the application for permission should be listed urgently, with appeal to follow if permission is granted, it will give such a direction. In children’s cases or other cases of urgency, this court can move very swiftly indeed. Thus, had that procedure been followed in the instant case, it is highly unlikely that the child would have been separated from his father without a short on-notice oral hearing for a stay in this court. The child would have been permitted to continue to reside with his father pending the hearing of the application for a stay, or if a stay had been granted, up until the application for permission to appeal, or, in the instant case, as permission to appeal was granted, until the hearing of the appeal itself.

As I have already stated, this court is also likely to have made a direction for an urgent listing and fixed a date for that hearing. It must be emphasised that these facilities are designed to cater for urgent cases and must not be abused. When a potential applicant is legally represented, it will always be appropriate for that legal representative to make the approach to this court, but the profession needs clearly to understand that the emergency facilities are always available to deal with urgent child cases and can be speedily accessed by the profession by telephone where necessary. If it is objected that such an application in such a case would not be covered by public funding, I am in no doubt at all that this court would accept an undertaking from the parties’ legal advisers to file the appellant’s notice once public funding had been obtained. Plainly, an application will need to be made urgently for the certificate to be extended, and in the scenario I have envisaged, it is highly likely that this court would also encourage the Legal Services Commission to consider an application for funding as a matter of the greatest urgency.

I propose to invite the President to make available to the Designated Family Judges both paragraphs 26 and paragraph 27 of Wilson LJ’s judgment in re A (a child) [2007] EWCA Civ 899 which covers the same ground, and this extract from my judgment dealing with the same point, so that they can be widely disseminated within the judiciary hearing family cases, and made available both to the Family Law Bar Association and Resolution, to ensure that the message given in those two cases is clearly known to its members.

That is all I wish to say on that point, and for the reasons I have given I would myself dismiss this appeal.

I agree. I wish to add a few remarks of my own, in the light of what has happened in this case. It seems to me that, as is apparent from the judgment of my Lord, the delays and problems in this case are unacceptable, and do no credit to a system of justice. Three questions in my view arise: first, is there a shortage of judges on this part of the western circuit who have the appropriate authorisations to try care cases? If there is, when is that to be remedied, and, if not, why are there delays that are apparent in this case? The second question arises out of an observation my Lord has already made: we were told in the course of argument that cases generally do not start on this circuit because of the need to have interlocutory hearings and other matters until midday, with the consequence that what is a day’s case can be spread over two days or more. This is a most inefficient use of resources because of the costs that are incurred by the parties in attending at a court over two days when one day should suffice. The third question arises out of the operation of a central listing system in Exeter for the counties of Devon and Cornwall. We are told that one of the hearings in this case took place in Truro, even though it is a Barnstaple case. Bearing in mind the type of case it is, it seems to us that an explanation as to whether this was a one-off or is common is something that should be provided to the court. But the more serious matter that was raised with us is that we were told that listing is not keen on discussing cases and difficulties in cases with the legal profession. In my experience of listing systems across England and Wales, this is unusual. Listing normally functions best if it works well with the profession, and it seems to me that it would be helpful if there were identified any reasons why central listing in Exeter was different.

These questions that I have raised give rise to concern in relation to the proper administration of justice in family cases in this part of the western circuit, and in the circumstances, it seems to me that this court should direct; having discussed this with my brethren, we so direct that the Area Director for Devon and Cornwall provide a report dealing with these specific questions that I have raised in this short judgment, and that report be submitted to the presiding judges of the circuit and the Family Division Liaison Judge by 25 September, with a copy to the President of the Family Division and to the members of this court. We do so because, today, very significant costs have been incurred: there are the costs of this court actually sitting; there are the costs of four counsel before us; the costs of solicitors; the costs of representatives of the public bodies; and of the parties in attending here, which probably would have been wholly and unnecessarily incurred if there had been a proper listing system in place.

But I add those merely as observations, because of the events to which this case has given rise; otherwise I agree entirely with the reasons and the order proposed by my Lord.

Lord Justice Keene:

I agree with both judgments and I warmly endorse those comments and directions. I would echo my Lord’s concerns about the lack of proper case management in this particular case. It has required this court to try to act as a combination of listing officer and counsel’s clerk. It goes without saying that should not be necessary. This appeal will be dismissed on the terms indicated, and counsel should, as has been indicated already, draw up an agreed order to reflect the discussions which have taken place in these judgments. I would direct that the transcript of the judgments delivered this morning be expedited.