W & Anor v Vale of Galmorgan Council & Ors

The Protocol for Judicial Case Management in Public Law Children Act Cases is a practical tool whose application must further, rather than impair, family justice. It must be read subject to the Children Act, the statutory Rules and its accompanying Practice Direction. Where applying the Protocol strictly would produce an unfair result, the court must depart from it for proper reasons. In particular, a court should not make an interim care order involving serious intervention in a child’s and carers’ lives without hearing an application for party status or permitting the carers to intervene to oppose the order.

Mr and Mrs W, the maternal grandparents caring for a child subject to care proceedings, appealed against the refusal of a Vale of Glamorgan Family Proceedings Court to entertain their application to become parties. The justices transferred the proceedings to the County Court and, relying on the Protocol for Judicial Case Management in Public Law Children Act Cases, declined to hear the grandparents before making an interim care order removing the child into foster care.

The appeal concerned whether the Protocol prevented the Family Proceedings Court from determining party status or permitting intervention before dealing with the interim application, and whether the resulting procedure was unfair.

1. Appeal allowed. The order made by the Family Proceedings Court was procedurally unfair. No further consequential order was necessary or desirable because the grandparents had subsequently been heard in the Care Centre.
2. The Protocol had to be read subject to the Children Act, the statutory Rules and the accompanying Practice Direction. Its purpose was to enable care cases to be dealt with justly, expeditiously, fairly and proportionately.
3. Where serious intervention in the life of a child and other adults was proposed, the court had to keep the Protocol’s purpose clearly in mind. If pursuit of that purpose required departure from the Protocol’s terms, the court had to depart from them and give proper reasons.
4. Several lawful procedural options were available. The justices could have declined to determine the interim care application if that could be done without prejudice to the child. If they proceeded, they should have heard the application for party status or, at minimum, permitted the grandparents to intervene to oppose the interim care application.
5. The Protocol was neither primary nor secondary legislation requiring statutory interpretation. It was a practical case-management tool and was not to become a source of satellite litigation. The High Court would rarely interfere with its application unless its purpose had exceptionally been misunderstood or a manifestly unjust outcome had resulted.

The judgment records an appeal from the Vale of Glamorgan Family Proceedings Court. The High Court allowed the appeal but made no further consequential order.