S (a child), Re

An appeal against an interim care order which has expired may properly be dismissed without determination of its merits where the current interim arrangement can instead be reconsidered promptly by the first-instance court.

Where removal of a child is challenged urgently, the appellant may seek a stay from the judge who made the order and, if necessary, immediately seek an urgent stay or hearing in the Court of Appeal. Those emergency procedures should be used for genuinely urgent child cases and should not be abused.

The father appealed from an interim care order made by HHJ Vincent in county-court care proceedings. The order removed his four-year-old child from his care and placed the child with foster carers.

By the time the appeal was heard, the original eight-week order had expired. A fresh interim order had been continued by consent pending the appeal. The Court of Appeal considered whether to determine the challenge to the expired order and addressed the handling of urgent applications for stays in children proceedings.

1. Appeal dismissed. The original interim care order had expired. The court therefore dismissed the appeal without considering its merits. That disposition did not indicate whether the original removal of the child from the father was justified.

2. The appropriate course was for the current interim position to be reconsidered at first instance. The interim care order was extended until 12 September 2007, when HHJ Russell was to consider its renewal at a one-day hearing with a clean start. The court also endorsed an agreed timetable for evidence.

3. Wall LJ gave procedural guidance for urgent children cases. A party challenging an immediately implemented removal order could seek a stay from the trial judge. If that was refused, the judge could be asked to postpone implementation long enough for an urgent approach to the Court of Appeal. A represented party could contact the Court of Appeal urgently by telephone to seek a short stay or an expedited on-notice hearing. The facilities were for genuine emergencies and were not to be abused.

4. The court considered that prompt use of those procedures would probably have enabled an urgent hearing before the child was separated from the father. Wall LJ directed dissemination of the corresponding guidance in re A (a child) [2007] EWCA Civ 899.

5. Thomas and Keene LJJ agreed. Thomas LJ additionally directed the Area Director for Devon and Cornwall to report on the judicial resources, listing practices and professional liaison which had contributed to unacceptable delay and cost.

• Court of Appeal (Civil Division): appeal dismissed without considering the merits because the challenged interim order had expired; the continuing interim position was directed to be reconsidered at first instance: [2007] EWCA Civ 958.
• County Court: HHJ Vincent made an interim care order removing the child from the father’s care and placing the child with foster carers.