K (A Child), Re

An interim order made by a county court after proceedings were transferred from a family proceedings court was not rendered without jurisdiction merely because it was made before the date fixed for renewal of the existing order. Parties may adopt pragmatic arrangements to accommodate practical difficulties, but consent cannot confer jurisdiction which statute withholds. Once justices have reached a discretionary conclusion after a contested hearing, it ordinarily remains effective unless varied by a judge of the Family Division. The interlocutory pattern governing a child’s life should generally be changed only following a significant change of circumstances. The child’s welfare remains the paramount consideration, and any later review must approach the child’s best interests with an open mind.

The appeal concerned an infant, S, who had been made subject to an interim care order by His Honour Judge Kenny in the Watford County Court on 23 July 2001. The local authority’s earlier application for an interim care order had been rejected by the Dacorum Family Proceedings Court on 2 July, which made an interim supervision order instead.

After an intended appeal could not be heard, the parties agreed that the appeal notice could be withdrawn, the proceedings transferred to the Watford County Court, and the interim care application heard there on 23 July. The father challenged the county court’s jurisdiction and the evidential basis for changing the arrangements. Permission to appeal was granted out of time. The central issues were whether the county court had jurisdiction to hear the application on 23 July and whether the evidence justified the interim care order.

The appeal was dismissed unanimously. Lord Justice Thorpe delivered the judgment, with Lord Justice May agreeing.

1. Once justices have reached a discretionary conclusion after a contested hearing, that conclusion ordinarily stands unless and until varied by a judge of the Family Division. As a matter of general practice, the interlocutory pattern regulating a child’s life should not be varied without a significant change of circumstance.

2. Consent cannot achieve what statute does not permit. However, the parties’ pragmatic procedural arrangements made after the inability to obtain a judge for the risk-listed appeal were relevant to the jurisdictional assessment. The transfer and earlier listing had been agreed as practical arrangements, and the county court therefore had jurisdiction to hear the interim care application on 23 July.

3. The county court was entitled to decide the application on further evidence which had not been available to the justices, including oral evidence from the principal social worker and the fuller history of the related proceedings.

4. The court expressed anxiety about separating a four-week-old breast-feeding baby from her mother, particularly where the guardian ad litem supported the mother’s position. Even if the order had not been evidentially open to the judge, the safe course would have been remission for retrial rather than immediate substitution of the Court of Appeal’s own assessment.

5. A forthcoming review should consider what was best for the child with a completely open mind, having regard to developments in the meantime and without treating the earlier order as determinative.

Public funding assessments were directed for those requiring them.

• Watford County Court: His Honour Judge Kenny made an interim care order for 28 days on 23 July 2001 and refused permission to appeal.
• Court of Appeal (Civil Division): Permission to appeal was granted out of time and the appeal was dismissed on 21 August 2001.