(Court of Appeal; Thorpe, Scott Baker and Wall LJJ; 23 July 2009)
Care proceedings had been issued in relation to the three children because of serious injuries to the youngest child, and fatal injuries to a fourth sibling. Although at one stage adoption was favoured, the final hearing was postponed because the expert reported that there was a possibility that the youngest child could be rehabilitated to the parents. Before the final hearing the prospect arose of rehabilitation of all three children to the father, on the basis that he would separate from the mother. All parties, including the guardian and the local authority agreed that this proposal justified assessment, and that the final hearing should therefore be adjourned. Unfortunately, when the proposal was discussed with the expert, he rejected it as misconceived.
The judge took the expert's evidence, following which the judge made it clear that he was not himself prepared to endorse the assessment of the father as sole carer; however, he nonetheless adjourned the hearing on the basis of an interim care order to the authority, the legal consequence of which was to empower the authority to decide whether or not to carry out the assessment. The judge's order provided for the expert to prepare a further report for the adjourned hearing in any event. On the guardian's appeal none of the parties supported the judge's order.
The judge had really had to choose between two plain alternatives: the first was to countenance a fresh assessment of the father as sole carer, providing for a further hearing at which the outcome of the assessment would be considered and a final order made; the second was to conclude the final hearing by vetoing a further assessment, following the advice of the expert. The judge had fallen into error in his failure either to conclude the proceedings or to provide for a further hearing on the firm foundation of assessment.
On the evidence the judge would have been vulnerable to an appeal if he had concluded the proceedings, given that the expert had not seen the father or the youngest child for some time and had not independently investigated the father's proposal that he become the children's sole carer. The judge really had had no realistic option but to endorse the assessment, expressing whatever reservations he might have had for the benefit of the expert professionals, but nonetheless allowing the proposal to go forward for consideration at the relisted final hearing; there was simply no downside in giving the father that chance. The case should return to a different judge to avoid any suggestion that the father would be disadvantaged at the final hearing by the attitude of the judge.