M (A Child)

Meeting the threshold for an interim care order under the Children Act 1989, sections 38(2) and 31(2), opens the court’s jurisdiction but does not require an order. The court must then treat the child’s welfare as paramount under section 1 and decide whether an order is necessary and, if so, which order. The judge must consider available alternatives, including interim residence with a parent and interim supervision by the local authority. On appeal, where circumstances and evidence have materially changed, the appellate court should not substitute its own welfare decision without hearing the evidence. The appropriate course may be prompt remittal for reconsideration.

An infant suffered catastrophic injuries while in her father’s care and became subject to care proceedings under Part IV of the Children Act 1989. The Peterborough County Court made an interim care order placing her with foster carers. Her mother sought permission to appeal and proposed caring for the child at home, with the father excluded. The judge found the interim threshold satisfied but did not consider an interim residence order for the mother with interim supervision by the local authority. By the Court of Appeal hearing, the evidence and local authority care plan had materially changed, including the assessment of the maternal grandmother. The central issues were whether the order was justified, whether the Court of Appeal could substitute its own interim arrangement, and what procedural course should follow.

Decision

Lord Justice Wall delivered the leading judgment. Lord Justices Wilson and Pill agreed. Permission to appeal was granted, but the appeal was formally dismissed because the Court of Appeal declined to substitute its own interim order. The matter was directed to be reconsidered promptly by the county court.

1. Threshold and welfare. The threshold in section 38(2) of the Children Act 1989, by reference to section 31(2), is a gateway to jurisdiction. Once reasonable grounds for believing that the statutory circumstances exist are established, the court has jurisdiction to make an interim order. The threshold finding does not itself require an order. The subsequent decision is governed by the child’s welfare under section 1, which requires consideration of whether an order is necessary and, if so, which order should be made.
2. Available alternatives. The judge failed to consider the statutory alternative of an interim residence order in the mother’s favour with interim supervision by the local authority. That failure was sufficient to vitiate the decision. The evidence did not establish that the mother was incapable of caring for the child, or that she had responsibility for the injuries or had failed to protect the child on the relevant occasion.
3. Appellate restraint. Even though the first-instance reasoning and evidence were highly unsatisfactory, the Court of Appeal had not heard the evidence itself and the circumstances had moved on. It was therefore not open to the court simply to set aside the order and impose its own welfare solution. The proper course was a rehearing on current evidence, with the mother free to make any cross-application.
4. Further directions. The county court was directed to hear the local authority’s renewed application and any cross-application on 20 April 2006. Updated evidence concerning the child’s medical condition and daily care requirements, and an updated care plan addressing available support, were required. The maternal grandmother was to be at liberty to seek joinder.

• Court of Appeal (Civil Division) — In [2006] EWCA Civ 404, permission to appeal was granted but the appeal was dismissed in form. The case was directed to return promptly to the county court for reconsideration on current evidence.
• Peterborough County Court — His Honour Judge McKittrick made an interim care order on 26 January 2006, placing the child with foster carers and approving interim contact arrangements.