M (A Child), Re

At a directions hearing, a judge may depart from an agreed interim arrangement where the child’s interests require it, but must first give affected parties a proper opportunity to make representations and, usually, to call evidence. The court must not prejudge substantial welfare issues on the papers or impose an interim order which overrides professional advice without hearing the relevant parties. A condition attached to an interim residence order cannot impose obligations on persons outside Children Act 1989, section 11(7)(b). The refusal of expert evidence is a judicial discretion, but may be plainly wrong where the case is at an early stage and the parties agree that the evidence is necessary.

Peterborough City Council had begun care proceedings concerning a four-year-old child. An interim care order had been made by consent, and the parties agreed directions for further investigation and assessment. At a directions hearing, the county court judge instead made an interim residence order in favour of the maternal grandparents, imposed conditions concerning contact, refused an agreed psychological assessment and declined further directions.

The guardian ad litem appealed. The local authority and the mother supported the appeal. The central issues were whether the judge had acted procedurally unfairly, whether the interim residence order and contact condition were lawful, and whether refusal of the expert evidence was a proper exercise of discretion.

1. Appeal allowed. The orders of 26 July and 31 August 2001 were set aside. The agreed directions were to be restored, subject to improvements emerging during the appeal.
2. A judge is not bound to approve an order agreed by the parties. The judge retains a broad discretion to control proceedings and may intervene decisively to prevent unnecessary investigation or evidence. However, before imposing a wholly different order at a hearing not designed to review the order in force, the judge must give the parties a proper opportunity to make representations and, in most situations, to call evidence.
3. The county court judge had denied those elementary procedural rights. The hearing was an uncontentious directions hearing during the currency of an interim care order. Two parties affected by the new order were absent, and the grandparents, in whose favour it operated, were not represented because their solicitor reasonably regarded the hearing as uncontentious.
4. The interim residence order was plainly wrong in the circumstances. The judge prejudged fundamental welfare issues by treating the mother’s drug use and the likely outcome of the proceedings as effectively determined on the papers, without oral evidence. He also overrode the guardian’s advice and criticised the guardian’s recommendation for psychological assessment without giving the guardian an opportunity to respond.
5. Under section 11(7)(b) of Children Act 1989, the judge had no power to impose obligations or conditions on persons not within the statutory category identified by that provision. The principle in Leeds City Council v C [1993] 2 FLR 802 supported that conclusion.
6. The refusal to authorise the clinical psychologist’s report was also plainly wrong on these facts. The proceedings were at an early stage, the judge had limited knowledge of the case, and all parties agreed that expert evidence was required. That conclusion did not fetter a trial judge’s discretion to prevent unnecessary or unhelpful investigations in an appropriate case.

• Peterborough County Court, sitting at Cambridge County Court: Orders made on 26 July 2001 included an interim residence order in favour of the maternal grandparents, conditions concerning contact, and refusal of an agreed psychological assessment. A consequential order was made on 31 August 2001.
• Court of Appeal (Civil Division): Appeal allowed. The orders of 26 July and 31 August 2001 were set aside.