Case No: B4/2008/2080 & 2081
Neutral Citation Number: [2008] EWCA Civ 1517
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE LANCASTER)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 27th November 2008

Before:

LORD JUSTICE THORPE
LORD JUSTICE RIX
and
LORD JUSTICE RICHARDS

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IN THE MATTER OF T (a Child)

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Mr J Gray (instructed by Swinbourne & Jackson) appeared on behalf of the Appellant.
Ms Morgan (instructed by Gateshead MSC) appeared on behalf of the Respondents.

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Judgment
Lord Justice Thorpe:  

1.	This is an unusual case in which a mother in cohabitation with a father, caring for a ten-year old child, conceived again and apparently concealed from all her pregnancy and imminent birth.  Following birth, seemingly in the home, the mother delivered the child to a local hospital and made it plain that she did not seek to care for the child.  That presented the local authority with an obvious responsibility.  They applied for a care order, and within the care proceedings a guardian for the child has been appointed.  All this occurred in the summer of 2007, so the child is now 17 months old.  

2.	Unfortunately, plans for J’s future have become bogged down in the difficult question of whether or not the father should be told of this reality.  The question was first considered by HHJ Taylor, who said that the father should be informed.  The mother then applied for that decision to be set aside.  The application came on 16 May before HHJ Lancaster, because seemingly HHJ Taylor’s list overran.  He granted the relief sought, the local authority and the guardian being present but essentially taking no part.  

3.	Subsequently, it became apparent that the decision of 16 May had been taken without proper preparation of the essential evidence.  There had been nothing before the court except a position statement filed on the mother’s behalf.  There was no evidence from her directly, and accordingly an application was made for a full review, and directions were given by HHJ Lancaster on 7 July with a view to the review on 31 July.  

4.	However, on 31 July he reached the erroneous conclusion that he had no jurisdiction to re-engage, on the ground that Rule 37 of the County Court Rules had been discharged.  What he was not told, and what he did not appreciate, was that that discharge was in relation to civil proceedings in the County Court but not family.  

5.	The guardian has taken the lead in this court, applying for permission to appeal, and the case comes before us as a result of the direction of Wall LJ of 5 November, saying that the application should be listed on notice to mother and the local authority, with appeal to follow.  That notice produced a skeleton from the local authority in which they essentially support the guardian’s appeal.  The mother, although well aware of this hearing, has elected to take no part.  

6.	So it seems to me a simple business for us to allow this appeal by consent and to set aside the orders of HHJ Lancaster of 16 May and 31 July, and to direct that the core issue be determined on the next occasion in Newcastle, either by the liaison judge, Moir J, or as he may direct.  The case deserves the maximum expedition because, until this difficult is resolved, J’s future, either return to her natural family or adoption, cannot be settled.  

7.	Given the importance of the mother’s participation, I think we should also direct that she attends the hearing to give evidence, and it is desirable that her medical records be available to the judge.  She has not complied with a direction that she produce her records but she has, we are told by Ms Morgan, signed an authority to enable the counsel to obtain those records.  So that authority will be immediately exercised and the records should be in the hands of the local authority very quickly.

8.	So that is the disposal that I would propose.  

Lord Justice Rix:  

9.	I agree.

Lord Justice Richards:  

10.	I also agree.

Order:  Appeal allowed.