Case No: B4/2008/0478
Neutral Citation Number: [2008] EWCA Civ 650
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE PHILIP PRICE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 15th May 2008

Before:

LORD JUSTICE THORPE,
LORD JUSTICE WALL
and
LORD JUSTICE STANLEY BURNTON
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IN THE MATTER OF A (A Child)

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Mrs C Hartley (instructed by Lemon & Co) appeared for the Appellant Father.
Ms L Thomas (instructed by Vale of Glamorgan Council) appeared for the Local Authority.
Ms N Sandercock (instructed by Nicol Denvir & Purnell) appeared for the Guardian ad Litem.
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Judgment
Lord Justice Thorpe:

1.	This is an appeal from the order of HHJ Philip Price QC, sitting in the Cardiff County Court on 12 February 2008.  Permission was given by Wilson LJ on 21 April 2008.  He supported that grant with reasons which perceptively analysed the fractures in the judge’s findings and reasoning in relation to what was a small ingredient in the important questions that were listed for his decision.  The future of BJ, born on 8 July 2002, was the focus of this hearing.  The local authority sought a care order and a placement order for him.  They had a rock solid case, given that his mother had a history of drug abuse and the whereabouts of his father were unknown.  BJ had, since February 2007, lived with his grandmother in Wolverhampton, a placement which broke down thereafter.  He was then looked after by foster carers.  For the two years preceding trial he had been having contact with his maternal grandfather, Mr Jess Stimson; and so Mr Stimson was a party to the proceedings and represented before the judge in order to, protect his future relationship with BJ.  He was represented at the trial by Mrs Hartley who appears for him before us today.  At the outset, his prospects of achieving some sort of order or recognition of his future role were not good, since he had no support from the local authority or the Guardian.

2.	Undoubtedly his forensic position was much strengthened when the Guardian concluded that, if BJ was to remain in long-term foster care, then he should have continuing direct contact, and if it proved possible to place BJ for adoption, then certainly the adopters should be asked to consider the possibility of the continuing role for Mr Stimson in his life.  The social worker with principal responsibility for the case came to agree to the Guardian’s conclusion and, accordingly, an amendment to the care plan was necessary to record the shift.  No amended or revised care plan was put before the judge and his care order was therefore posited on the basis of an outdated care plan.  He also reached firm conclusions adverse to the case that Mrs Hartley was advocating and even concluded that Mr Stimson represented a risk to any future placement in that he was susceptible to bend under pressure from other members of the family, particularly BJ’s mother, and might reveal to them and her information that it was important should not be within their knowledge.

3.	Given that outcome in relation to Mr Stimson, it is hardly surprising that, the judge having refused permission, a Notice of Appeal was filed here and permission granted by Wilson LJ.  It is, equally, hardly surprising, given the force of Mrs Hartley’s case, that a supportive skeleton was received on 8 May from the Guardian and on the following day from the local authority, hardly opposing her appeal.  So, sensibly, there were discussions between counsel yesterday which have resulted in the agreed disposal of this appeal.  The principal orders made by the judge were of course the care and placements orders, and there is no question that they were inevitably made.  How then to record the appellant’s success in this court?  In my judgment it should be recorded by allowing the appeal and making a fresh care order on the basis of a revised care plan, which continues to be the subject of further revision, and accordingly we should, I think, grant Ms Sandercock’s suggestion that the ultimate revised care plan should be lodged presumably we could say by 4pm tomorrow afternoon.  It is also agreed that we should incorporate in our order a permission to disclose the Guardian’s report to the court below to the respective adopters who have fortunately emerged since the 12 February.

4.	I ask myself how on earth did this situation arise, given that HHJ Price is a judge of enormous experience in this field?  I think the answer is relatively simply discerned from the transcript of the proceedings.  We can see that, at the very outset, Mr Lewis for the local authority had informed the judge that the Guardian was raising issues in relation to grandfather’s contact and that accordingly he would appreciate time -- that is to say a short adjournment -- for further discussions out of court.  HHJ Price was not having that.  He said he was not prepared to allow time and he did not regard that issue as being of any priority in the scale of the more fundamental orders that were sought by the local authority.  So he said that he would get on.  Seemingly, at the end of the day the local authority did revise the care plan to reflect continuing discussions between the parties towards consensus, but most unfortunately did not file or seek to file the revised care plan with the judge.  The forensic shift from a contested issue, as between Mrs Hartley and the other parties, to something close to a consensus did not register with the judge and he therefore did not, I think, sufficiently notice within the oral evidence of the social worker, the Guardian and the expert that there had been a decided softening towards Mr Stimson’s position.  

5.	Thus he created a situation in which Mrs Hartley was able to say in her skeleton that his reason for rejecting Mr Stimson’s position was erroneous; his finding, in one respect, contrary to the evidence, and therefore his conclusion plainly wrong.  Mrs Hartley is clearly well-founded in those submissions, and I only reiterate that I am satisfied that this situation has developed as a consequence of either a deliberate decision or neglect or failure to place the revised care plan before the judge at the commencement of the second day.  The only finding of the judge that Mrs Hartley urges us to correct is the finding that Mr Stimson represented a risk to BJ of the nature which I have already described.  She says that such a finding ignored the fact that he had been having contact without the smallest harm to BJ over the previous two years.  BJ had been with foster parents for 18 months, and Mr Stimson’s continuing relationship had not in any way undermined that placement, nor had he succumbed to pressure from other members of the family to reveal information which he should not.  She further points out that of all the experts in the case -- that is to say the social worker, the Guardian and the psychologist -- had all focused upon the potential risk of disruption posed by Mr Stimson and had all concluded that it was negative.  In the face of that evidence it was simply not open to the judge to find that Mr Stimson represented a risk of disruption.  She is plainly right in those submissions and I am in no doubt that the judge made that one impermissible finding.  That requires no reflection in the order which was drawn, the nature of which I have already indicated.

Lord Justice Wall:  

6.	I entirely agree with the course my Lord proposes.  I add a few words because I share his concern at the way this muddle has come about. 

7.	 When the Children Act 1989 (the Act) was first implemented, the local authority’s care plan in proceedings under Part IV of the Act was not a statutory document; indeed,  no mention of it was made in the  Act.  However, by amendment of what is now section 31A of the  Act, the care plan is not only a statutory document,  but one which the local authority is obliged to keep up to date.  I read section 31A of the Act:

“(1) Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (”a care plan”) for the future care of the child.

(2) While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.”

8.	So, in my judgment, in the instant case, the local authority was under a statutory obligation to do what in fact it did not do, which was to amend the care plan during the course of the proceedings to reflect the new evidence. In my judgment it did not require the consent or permission of the judge to do that.  The judge had no jurisdiction over it whatsoever.  It was the responsibility of the local authority to present the new care plan to the judge and, if the judge did not like the care plan, his only remedy was not to make a care order.  That is all trite  law.  

9.	What has happened in this case, plainly, is that the judge has made his care order on the basis of what he himself describes as the “existing plan”.  Indeed, he says so in terms in the final paragraph of his judgment.  In my judgment that was in error.  He should have made his care order on the basis of the new care plan.  Alternatively, if he did not like the new care plan he could have asked the local authority to reconsider it, or he could have refused to make the care order.  

10.	I am in no doubt, for the reasons my Lord has given, that the proper order in this case was to make a care order. The case cries out for the making of a care order, but equally for a care order  on the basis of the revised care plan. That, effectively is the order which we are going to make.  

11.	It is equally self-evident to my mind that the case cried out for a placement order, and that is not effectively opposed, save on the basis that the judge himself, on the premise of the original care plan, would not have perceived Mr Stimson’s position as being the same. I am in no doubt, however, that on the basis of a care order made in accordance with the fresh care plan,  a consequential placement order is the right order to make. 

12.	Subject to the question of whether or not the court should make a placement order under the 2002 Act, what happens once a care order is in force is essentially a matter for the local authority.  These questions, it seems to me,  are all self-evident and would  have been self-evident to the judge.  It is, in my view, most unfortunate that he was not presented with the amended care plan as he should have been, and he would have then, no doubt, have addressed it appropriately in his judgment.  He did not, however,  do so, and for the reasons my Lord has given it follows, in my view, that this appeal must be allowed.  The care order and the placement order must stand but they stand on the basis of the amended care plan.

Lord Justice Stanley Burnton: 

13.	I agree with both judgments of my Lords.

Order:  Appeal allowed