W & Anor v Vale of Galmorgan Council & Ors

This is an appeal by Mr and Mrs W against a decision of the Vale of Glamorgan Family Proceedings Court whereby they refused to entertain an application to become a party in family proceedings at the time when they decided to transfer the case to the County Court. It raises a point of principle in relation to the application of the Protocol for Judicial Case Management in Public Law Children Act Cases (the Protocol) and accordingly I decided to put my Judgment into writing.

The child concerned is G who was born on 25^th April 2002. Her mother is AG and her father is JG. The couple were married at the time of G’s birth, and both held parental responsibility. In fact the mother had encountered problems in looking after G who had on 28^th May 2003 been placed with the Appellants who are her maternal grandparents. The local authority had instituted care proceedings in the FPC and it is accepted that the Protocol applied to such proceedings. It was common ground that the case should have been transferred to the County Court as indeed it was on 4^th November 2003.

However on that occasion the local authority wished to apply for an interim care order on the basis of an interim care plan to remove the child from the Appellants. That was a course supported by the Guardian and to which the mother did not object. The father was not present at court and had not sought to be represented. The Appellants wished to be joined as parties so that they could oppose that application and it is clear that the evidence upon which the local authority relied was directly referable to the Appellants. The Justices declined to hear the Appellants and went on to make the Order sought. The child was duly removed into foster care pursuant to this order.

The reason that they gave for that approach was that they were required so to act by the provisions of the Protocol. Paragraph [2.5] states that where a decision is made to transfer to the Care Centre, the FPC shall….”Except as to disclosure of documents, make only those case management directions upon transfer as are agreed with the Care Centre as set out in the CCP and the FPCP.” Under those plans this decision as to party status is not one provided for the FPC to take.

On appeal it is contended that the combined effect of decisions not to consider party status and yet to make an interim care order was to work a serious injustice upon the Appellants. Although the child had lived with them for some months, their voice was not heard for, perhaps unusually, the mother did not argue the point. It is said both that that is an unduly restrictive approach to the Protocol and that its effect was to infringe their common law and Convention rights to a fair hearing. At first blush those arguments have considerable force.

It is necessary first to consider the status of the Protocol. Clearly it must be read subject both to the Children Act and the statutory Rules. The key in my view is to be found in the Practice Direction that accompanies and authorises the Protocol. Paragraph [2.1] says “The purpose of the …Protocol is to ensure…. (a) that care cases are dealt with in accordance with the overriding objective…” and then in Paragraph [3.1] it continues “The overriding objective is to enable the court to deal with every care case: (a) justly, expeditiously, fairly and with the minimum of delay….(c) …in ways that are proportionate…..(ii) to the nature and extent of the intervention proposed in the private and family life of the children and adults involved.”

In my judgment a serious intervention was being proposed here in the life of the child and the Appellants and the effect of that decision being made without their having the opportunity to take part in those proceedings was unfair. Although this appeal is now academic, since the Appellants have since been heard on the issue in the Care Centre, I am of the opinion that I should nevertheless hear and determine it as it raises an important issue.

In my judgment every court, in approaching the application of the Protocol, must keep clearly in mind not only the terms of the Protocol itself but also its purpose as explained in the Practice Direction and Principles of Application. If the pursuit of that purpose requires departure from the terms of the Protocol, then that must be done with proper reasons being given for such departure.

In this case several options were available to the Justices. They could have declined to deal with the local authority’s application for an interim care order and, if that could have been done without prejudice to the child, that would have been the preferred course. If they decided to deal with that application, then they should either have heard the application for party status or, at the very least, have given the Appellants permission to intervene in the proceedings to the extent of opposing that application. Any of those courses would in this case have been within the spirit and intent of the Protocol. As it is the order made in the way in which it was, contravened both its spirit and its purpose. Accordingly the appeal is allowed but it is neither necessary nor desirable to make any further order consequent thereon.

I have reduced this Judgment into writing for two reasons. The first is to make clear that the Protocol is a tool to improve family justice and not, in the quest for speed and consistency, to impair it; in applying it, courts must always have clearly in mind its true purpose as set out in the Practice Direction. The second reason is to make clear that the Protocol is not to be allowed to become the source of satellite litigation; rarely will the High Court interfere with the Justices’ application of it unless it can be shown that exceptionally it has been misunderstood as to purpose or a manifestly unjust outcome has transpired. The Protocol is neither primary nor secondary legislation requiring statutory interpretation; it is a practical tool to be used in furtherance of the securing of what is best for children within the family justice system.