F (A Child), Re

Where material issues remain unresolved at an issues resolution hearing, including contact, psychological treatment, expert evidence or the Guardian’s final recommendations, the court should not make a final care order. The appropriate course is an interim care order with directions enabling those matters to be addressed at a final hearing. Later availability of public funding, the child’s apparent acceptance of the order, or improvement in the child’s circumstances does not provide a proper basis for retaining an order made prematurely.

Care proceedings concerned L, a child approaching 15. At an issues resolution hearing in the Truro County Court, His Honour Judge Vincent made a final care order although the Guardian was absent, material contact issues remained, and further consideration of psychological treatment and expert evidence was required.

The father sought permission to appeal. The Guardian argued that the order should remain because public funding had become available and L had settled well in foster care. The central issue was whether the final care order had been procedurally appropriate at that stage.

Lord Justice Wall delivered the judgment, with Lord Justice Aikens agreeing. Permission was granted and the appeal was allowed.

1. Procedural appropriateness. The judge had made a final care order at an issues resolution hearing when important matters still required determination. In particular, contact with the family, possible psychological treatment, questions to the clinical psychologist, and the Guardian’s final report remained outstanding. The judge had therefore acted prematurely. The final order was procedurally inappropriate in the circumstances.
2. Effect of subsequent developments. The later availability of public funding was not a proper basis for dismissing the appeal. Nor did L’s apparent acceptance of the order and positive progress in foster care justify leaving an improperly timed final order in place. Those matters did not remove the need for the outstanding issues to be considered through the proper process.
3. Orders made. The final care order was set aside and replaced by an interim care order to the local authority. The clinical psychologist was directed to answer written questions within 28 days. Statements were to identify any disputes concerning contact, the Guardian was to prepare a final report, and the matter was to be listed for a final hearing. Any party wishing to cross-examine the psychologist was required to give notice within 14 days.

The directions were not intended to prevent agreement. L was to remain with her foster carers, and the Guardian was to explain that the appeal concerned a procedural muddle rather than an immediate change to her care arrangements.

1. Court of Appeal (Civil Division): On 12 March 2010, permission was granted, the appeal was allowed and the final care order was set aside.
2. Truro County Court: In October 2009, His Honour Judge Vincent made a final care order at an issues resolution hearing.