T (A Child)

In family proceedings, the discharge of Rule 37 of the County Court Rules for civil proceedings does not remove the court’s jurisdiction to reconsider a family issue. Orders made without proper preparation of essential evidence may be set aside so that the issue can be determined on a properly informed basis. Relevant directions may include requiring the mother to give evidence and making relevant medical records available. The Court of Appeal allowed the appeal and remitted the central question for determination.

A mother concealed her pregnancy and, after the child’s birth, made clear that she did not wish to care for the child. The local authority applied for a care order and a guardian was appointed. The central issue was whether the child’s father should be informed.

HHJ Taylor initially decided that the father should be told. HHJ Lancaster later set that decision aside on 16 May, without the essential evidence before the court. On 31 July he concluded that he had no jurisdiction to re-engage because Rule 37 of the County Court Rules had been discharged. The guardian appealed, supported by the local authority.

Lord Justice Thorpe gave the substantive judgment. Lord Justices Rix and Richards agreed. The appeal was allowed by consent.

1. Jurisdiction. HHJ Lancaster’s conclusion that he lacked jurisdiction was erroneous. The discharge of Rule 37 of the County Court Rules related to civil proceedings in the County Court, not family proceedings. It therefore did not prevent the court from re-engaging with the issue concerning whether the father should be informed.
2. Procedural fairness and evidence. The earlier decision had been made without proper preparation of the essential evidence. There was no direct evidence from the mother. A full review was therefore required before the central issue could properly be determined.
3. Directions and disposal. The orders of HHJ Lancaster dated 16 May and 31 July were set aside. The core issue was directed to be determined at the next hearing in Newcastle, by the liaison judge or as otherwise directed. The mother was directed to attend and give evidence, and her medical records were to be obtained and made available. The matter was to proceed with maximum expedition because the child’s future placement could not be settled until the issue was resolved.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1517, the appeal was allowed by consent. The orders of HHJ Lancaster were set aside and the core issue was remitted for determination.
2. Newcastle-upon-Tyne County Court: HHJ Taylor initially directed that the father should be informed. HHJ Lancaster subsequently set that decision aside and later declined to re-engage on the mistaken jurisdictional basis described above.