Family Law Hub

D (A Child) [2013] EWCA Civ 1217

Application by the F to stay a judge's order that the child lives with the M, in circumstances where the local authority's psychiatric assessment of the M was said not to be as comprehensive as it should be. Application granted.

  • Case No: 2013/PI/11562

    Neutral Citation Number: [2013] EWCA Civ 1217

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (MISS RECORDER ISAACS)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Friday 6th September 2013

    Before:

    LORD JUSTICE McFARLANE

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    IN THE MATTER OF D (A CHILD)

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    (DAR Transcript of

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    Mr Previn Jagutpal (instructed by Morrison Spowart) appeared on behalf of the Applicant Father.

    The Respondent did not appear and was not represented.

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    Judgment

    ( Approved )

    Crown Copyright (c)

    Lord Justice McFarlane:

    1. This is an application brought on effectively short, if any, notice by counsel, Mr Jaguptpal, who acts for the father in proceedings which have been conducted in the Principal Registry of the Family Division, concluding this week in a five-day final hearing before Ms Recorder Isaacs. The proceedings relate to a young girl, who I will refer to as M, born on 23 January 2003 and therefore now ten-and-a-half years of age.

    2. The concern about M apparently arises from the circumstances of the parenting she was receiving prior to January of this year, and in particular, as I would understand it from Mr Jagutpal, because of concerns about the mother's ability to care for her, and there is a longstanding worry, certainly expressed on behalf of the father, that the mother may, unfortunately and unhappily, suffer from a disability in her mental wellbeing.

    3. Initially, following the local authority's decision to seek orders that may protect M, she was the subject of accommodation in foster care from 28 January 2013 under section 20 of the Children Act 1989. More recently, the arrangement has been that she has had six nights of each week since 3 August living with her father and one night back in foster care. The conclusion of the proceedings, which culminated in a handing down of a substantial judgment this afternoon, is that the judge has not found that the threshold criteria in section 31 of the Children Act are met and has made a residence order providing for M to go to live with her mother, supported by a family assistance order.

    4. Although the judge does not stipulate when the handover of care should take place, the judge has made it plain that she expects that to be over the course of this present weekend, and I am therefore giving this judgment now at five o' clock on a Friday afternoon.

    5. Mr Jagutpal seeks to appeal the judge's determination on behalf of the father. He indicates that an area to be addressed in the potential grounds of appeal will relate to the inadequacy of the psychiatric evaluation of the mother and a criticism of the judge's decision to press on and determine the issue of the residential arrangements for M, notwithstanding the inadequacy of the psychiatric assessment. He also indicates that, on behalf of the father, he criticized the local authority assessment on the ground that it was not as comprehensive as one might have wished.

    6. Importantly, for my process, he informs me that both the children's guardian and the local authority support his potential appeal. The guardian's submission to the judge at the close of this week's hearing was apparently that the court could not be satisfied by the quality of the expert evidence, and, depressing though it was to contemplate, a further adjournment was justified in the child's best interests. The judge seemingly rejected that submission and made an order. Mr Jagutpal has explained that one of the principal drivers that will no doubt have influenced the judge's decision is that M has made it plain throughout that she would wish to be in her mother's care.

    7. Having indicated to the judge that he wished to have permission to appeal and wished for a stay of the order, the judge rejected both applications, and Mr Jagutpal has therefore come to the Court of Appeal very promptly this afternoon and I have heard the application by him as soon as he has arrived. I have no view about the merits of the case, but it does seem to me that it is necessary to allow some very short time to permit the father and his counsel to digest the judge's judgment, to formulate - if that remains their wish - grounds of appeal and a notice of appeal, and then the issue of permission to appeal and the interim arrangements for M to be considered by a Lord or Lady Justice next week on notice to the other parties.

    8. I am surprised that the judge, given what I understand about the need for very urgent action, was not persuaded, despite her refusal of permission to appeal, to delay the implementation of her order until the father and his counsel could come before the Court of Appeal early next week in a more orderly way, and I make that observation particularly as I am told that there are no protection concerns, meaning that M has to be removed for her own protection from the father's care and that the contact arrangements under the judge's order are for her to spend extensive periods with her father during term-time every other weekend and for half of the school holidays. But, be that as it may, I consider that it is necessary to hold the ring, as it were, and the status quo with her being based with her father for a few more days to allow this matter to be looked at in much more detail than I can do this afternoon at a hearing next week.

    9. I therefore propose to grant a stay to the judge's order on the basis that this will permit M to continue residing with her father and that that stay will run until midnight on next Wednesday, 11 September. The father, if he wishes to apply for a further extension of the stay, has to file a notice of appeal and an application for further extension by 4pm on Tuesday 10 September, and I will direct that this matter be set down for an oral 30 minute hearing for a Lord or Lady Justice of this court on Wednesday morning, 11 September, and that is to be on notice to the other parties, but they are not obliged to attend; they can indicate on paper their position if that is a proportionate intervention on their behalf.

    10. So a stay is granted as of now, 17.10pm, in the hope that this matter can be resolved and at least planned for the next process if there is to be an appeal at the hearing next week. M, from what I understand about her hopes and wishes and feelings, will be potentially disappointed by this turn of events. Anyone who gives this information to her should simply blame me as the judge who is doing his best to hold the ring. It is not the father's fault that we are in this position; it the father's right, if he wishes to, to hold the judge's decision up for scrutiny in the Court of Appeal, and I consider this is a necessary but short-term step just to keep things on an even keel as they are at the moment, rather than run the risk of her moving to the mother this weekend only for another judge on another day in the not too distant future to say "no, that is not the right plan for her"; I think that would mix her up even more than the disappointment which I suspect she might feel by not going to be with her mother now.

    Order: Application granted

Judgment, published: 11/10/2013

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Published: 11/10/2013

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