here is the cover up for HHJ TYZACK:

Neutral Citation Number: [2012] EWCA Civ 1549

Case No: B4/2012/0430

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EXETER COUNTY COURT

His Honour Judge Tyzack QC

EX11C00033

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29/11/2012

Before :

THE MASTER OF THE ROLLS

LORD JUSTICE SULLIVAN

and

LORD JUSTICE MCFARLANE

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Re: K (Children)

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Mr and Mrs B (Appellants) in person

Mr Rupert Chapman (instructed by Leicestershire County Council legal department) for

Leicestershire County Council

Ms Kathryn Skellorn (instructed by Torbay Council Legal Department) for Torbay Council

Ms Carol Mashembo (instructed by Boyce Hatton Solicitors ) for Dr K (father)

Mr Piers Pressdee QC (instructed by Tozer’s Solicitors ) for the Children’s Guardian

Hearing date : 24

October 2012

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Approved JudgmentJudgment Approved by the court for handing down. Double-click to enter the short title

Lord Justice McFarlane:

1. The central question raised in this appeal relates to the extent of a court’s jurisdiction

in family proceedings to make sequential directions to a local authority under

Children Act 1989, s 37 and, on the back of those directions, to continue to make

interim care orders under s 38, in circumstances where the local authority may be said

to have already discharged its duty under s 37 and where it opposes the making of

further interim care orders.

2. The appeal is brought by Mr and Mrs B against orders made in private family law

proceedings in the Exeter County Court relating to two boys. The boys will be

referred to in this judgment as ‘Tok’ and ‘Tun’. Tok was born on 21

st May 1997 and

is therefore now aged 15½ years, his brother Tun was born on 20

January 2000 and

is now 12¾ years old. Mrs B is the mother of both boys and Dr K is their father. Mrs

B and Dr K separated many years ago and Mrs B is now married to Mr B, who is

therefore the boys’ stepfather.

3. Both boys have been the subject of private law proceedings between their two parents

since 2006. For a substantial period of time the boys resided with their father in

Devon and there were ongoing entrenched difficulties over the arrangements for

contact to their mother who lives in the Midlands. As time has gone on, two children

have been born to Mr and Mrs B, a girl, I, who is now aged six and a boy, W, who is

aged four.

4. Matters have been complicated by periodic collapses in Dr K’s mental health. In

particular, in April 2010 Dr K suffered a mental breakdown and both boys moved to

live with Mr and Mrs B in Leicestershire. From the start Tok’s behaviour was

extremely challenging and a stage was reached after some two months which resulted

in Mrs B writing to the court on 7th June 2010 saying that Tok’s behaviour was such

that he could not stay any longer in her home with the other children. Dr K’s mental

equilibrium had apparently been re-established and in July 2010 Tok returned to his

care in Devon, leaving Tun in the care of Mr and Mrs B.

5. The private law proceedings continued in Exeter and it is clear that during the second

half of 2010 the rule 9.5 children’s guardian appointed to represent their interests in

the proceedings was asking judges (HHJ Robertshaw and HHJ Wildblood QC) to

make a direction under CA l989, s37 requiring the social services in Leicestershire to

undertake an assessment of Tun’s welfare in the home of Mr and Mrs B with a view

to considering care proceedings. The judges declined that invitation and, by position

statements dated 24th August and 19 th November, Leicestershire County Council

[‘LCC’], who had knowledge of the family, stated that there were no issues that

would lead that local authority to apply for a public law order to enable Tun to be

removed from Mr and Mrs B’s care.

6. Matters came to a head in early December 2010. On 3 rd December Dr K suffered a

further mental breakdown. Tok was removed from his care by the police and placed

with the maternal grandparents, who also live in Devon. On 6 th December HHJ

Tyzack QC made a section 37 direction in relation to Tok and granted an interim care

order with respect to him in favour of Torbay Council.Judgment Approved by the court for handing down. Double-click to enter the short title

7. On 10th December Tun’s case came before Judge Tyzack. Mrs B was represented, but

not apparently in attendance. On that occasion the judge made a section 37 direction

to LCC, he held that the criteria necessary to establish jurisdiction to make an interim

care order under CA 1989, s 38 were established on the basis of emotional abuse in

the home of Mr and Mrs B as a result of Mr B’s alleged bullying and intimidating

behaviour. On that basis the judge made an interim care order with respect to Tun in

favour of LCC.

8. Mr and Mrs B take serious issue with the hearing on 10th December 2010 and the

orders that were made. Whilst these orders were not subject to appeal at the time, it is

Mr and Mrs B’s case that from that date onwards their ability to have a fair hearing

was fundamentally compromised. They assert that the interim care order was made

on the basis that if they co-operated with the social services, Tun would not be

removed from their care. Mr and Mrs B profoundly disagreed with the making of an

interim care order and therefore refused to co-operate with the social services with the

result that Tun was indeed removed from their care five days later on 15th

December.

9. Matters apparently cooled down around the turn of the year and by mid-January Mr

and Mrs B were prepared to co-operate with the social workers and in a position

statement dated 28

January 2011 LCC stated that, following an assessment, their

conclusion was that Tun could be returned to Mr and Mrs B’s care after the next

hearing, which was on 31

January. At that hearing, however, HHJ Tyzack expressed

dissatisfaction with the local authority report. He made a further s 37 direction, and

renewed the interim care order on the basis that he did not sanction Tun’s return to Mr

and Mrs B’s home.

10. The case was once again before HHJ Tyzack on 4

th March. LCC made it plain to the

judge that they were not going to apply for a care or supervision order and opposed

the making of further s 37 and interim care orders. Notwithstanding that position the

judge made a third s 37 direction and made a further interim care order.

11. Mr and Mrs B apparently understood that the local authority had consented to the

further orders (an understanding which now seems to have been incorrect). In any

event the orders made on 4

th March had the consequence that Mr and Mrs B once

again withdrew their co-operation with the social services in Leicester and, indeed,

stated their intention to take judicial review proceedings against them (see probation

officer’s log for 9

th March at A134).

12. So far as Tok is concerned, he had continued to reside with the maternal grandparents

and, on 12

April 2011, a residence order was made in their favour supported by an

interim supervision order to Torbay.

13. In Tun’s case, following the withdrawal of cooperation by Mr and Mrs B, LCC issued

care proceedings in the Exeter County Court. At a contested hearing on 12

April

2011 HHJ Tyzack made a further interim care order with respect to Tun and

sanctioned Leicestershire’s plan which was for Tun to move from his foster carers to

be placed, with Tok, in the home of the maternal grandparents. Mrs B was

represented at that hearing and attended for part of the day, but following the

luncheon adjournment did not return to court. As a result of the judge’s order Tun

moved to live with his grandparents and has continued to remain in their care since Judgment Approved by the court for handing down. Double-click to enter the short title

that time. Mr and Mrs B are totally estranged from the maternal grandparents and

consider that the placement of either boy in their care is the worst outcome.

14. By their notice of appeal Mr and Mrs B seek to challenge the orders made on 12

April 2011.

15. Following the April hearing Mr and Mrs B seem to have withdrawn from engagement

in the court and social work process but, by an email dated 24

October 2011 (C29),

Mrs B indicated that she was “now resuming my involvement in the case” but stated

“I am not available for a final hearing in January 2012”. By an order of 12 November

2011 the judge gave very detailed directions for the final hearing, which included

extensive provision for the involvement of Mr and Mrs B. Following that the local

authority filed their final documents and in early December Mrs B filed detailed

responses to the local authority case. However in an email to the court dated 16

December 2011 Mrs B stated that she “is not seeking residence or contact with Tun”

(page C90). In a further e.mail dated 28

December she stated that she had no

intention of attending the hearing, which was booked for January, as she could predict

what HHJ Tyzack would do and she would, instead, concentrate on appealing (page

C96).

16. At the final hearing on 13

January 2012 HH Judge Tyzack secured the placement of

Tun with the maternal grandparents by making a special guardianship order in their

favour. This final order is the third of the three orders that Mr and Mrs B seek to

challenge in this appeal.

17. As I have indicated, the notice of appeal was filed on 3

February 2012. Whilst it

specifies the three orders to which I have made reference, the appeal is in fact against

the entire process that has been undertaken from December 2010 onwards. Mr and

Mrs B seek a complete re-hearing of all the issues in the case. In addition to raising

matters in relation to the court process and the orders made, they also express extreme

concern for Tun’s welfare in the care of his grandparents both before and, more

particularly, since the special guardianship order was made in January.

18. Permission to appeal was granted by Ward LJ and McFarlane LJ in a reserved

judgment handed down on 30

August 2012, which, at paragraph 18 sets out a

detailed list of the grounds of appeal ([2012] EWCA Civ 1169). In the course of that

judgment I sought to draw the widely cast points that Mr and Mrs B wished to raise

into a coherent list of the matters that particularly justified a full appeal hearing. The

headline points in that list are as follows:

a) The making of an interim care order on 10

December 2010 was not

justified in the light of two extant reports from LCC expressing the

clear opinion that care proceedings were not needed in relation to Tun;

b) There was no justification for making two further s 37 directions and

on each occasion a further interim care order in January and March

2011;

c) The lack of justification for the subsequent s 37 directions is confirmed

by the judge’s description of the two s 37 reports in his judgment of

April 2011 as “comprehensive and thorough”;Judgment Approved by the court for handing down. Double-click to enter the short title

d) Insofar as the threshold criteria are concerned, the 12

April 2011

judgment, in like manner to that of December 2010, does not refer to

the evidence prior to those dates which would establish a factual basis

for holding that there are reasonable grounds for believing that Tun is

suffering, or is likely to suffer, significant harm;

e) If the judge’s motivation was to save Tun from exposure to the

emotional fall-out within this dysfunctional family, placing him in

another part of the family could not be justified and, on that basis, it

would be better for him to be placed in a totally neutral environment;

f) Events since the making of the order have demonstrated that Tun is

highly disturbed and out of control as a result of living in the maternal

grandparents’ home.

19. For the purposes of the appeal hearing the court has been greatly assisted by the

provision of the complete case bundles which are supported by full skeleton

arguments from each respondent together with a comprehensive chronology prepared

on behalf of Torbay Council. The position of both local authorities and Dr K is that

they strongly oppose the appeal. In contrast, Mr Piers Pressdee QC, counsel for the

child, acting through the children’s guardian, having conducted a retrospective

analysis of the procedural history, submits that there have been procedural

irregularities and errors of law which are sufficient to lead to this appeal being

allowed and the whole case being remitted for rehearing before a different tribunal.

The central submission made by Mr Pressdee is that HHJ Tyzack exceeded his

powers by making repeated directions under CA 1989, s 37 and associated interim

care orders which amounted to impermissible pressure upon the local authority to

initiate care proceedings and to exercise its parental responsibility in a manner that

accorded with the judge’s views, rather than those of the social workers.

20. In support of their appeal, Mr and Mrs B are plainly in agreement with the

submissions made by Mr Pressdee. In addition, in clear and measured terms, they

have argued in support of the other criticisms that they make of the entire process.

21. I consider that the focus that Mr Pressdee has rightly drawn to the judge’s use of CA

1989, s 37, and under it the making of a series of interim care orders, goes to the heart

of the matter not only in terms of the law but also in the light of its apparent impact

upon Mr and Mrs B. I therefore propose to give primary consideration to this aspect

of the appeal.

22. Under CA 1989, s 31(1) an application to place a child in care or to put him under

local authority supervision may only be made by a local authority or an authorised

person. The role of ‘authorised person’ is not relevant to these proceedings. The legal

context within which s 37 therefore operates is that under the CA 1989, s 31(1)

Parliament has entrusted to the local authority, and not to the court, the role of

determining whether or not public law proceedings in relation to a child are to be

issued.

23. CA 1989, s 37 provides a jurisdictional bridge between private law proceedings under

Part 2 of the Act, in which a local authority normally plays no part, and the public law

provisions in Part 4. The relevant provisions of CA 1989, s 37 are: Judgment Approved by the court for handing down. Double-click to enter the short title

37 Powers of court in certain family proceedings

1) Where, in any family proceedings in which a question arises with respect

to the welfare of any child, it appears to the court that it may be

appropriate for a care or supervision order to be made with respect to him,

the court may direct the appropriate authority to undertake an

investigation of the child’s circumstances.

2) Where the court gives a direction under this section the local authority

concerned shall, when undertaking the investigation, consider whether

they should –

(a) apply for a care order or for a supervision order with respect to

the child;

(b) provide services or assistance for the child or his family; or

3) Where a local authority undertake an investigation under this section, and

decide not to apply for a care order or supervision order with respect to

the child concerned, they shall inform the court of –

(a) their reasons for so deciding;

(b) any service or assistance which they have provided, or intend to

provide, for the child and his family; and

respect to the child.

4) The information shall be given to the court before the end of the period of

eight weeks beginning with the date of the direction, unless the court

otherwise directs.

5) ….

6) If, on the conclusion of any investigation or review under this section, the

authority decide not to apply for a care order or supervision order with

respect to the child –

(a) they shall consider whether it would be appropriate to review the

case at a later date; and

(b) if they decide that it would be, they shall determine the date on

which that review is to begin.

24. CA 1989, s 37(1) gives the court power to direct the appropriate local authority to

investigate the child’s circumstances. The authority must consider whether they

should apply for a care or supervision order under s 31 with respect to the child (s

31(2)). If the authority decides to make a s 31 application then that application will be

a public family law application under CA 1989, Part 4 and the bridge from the earlier

private law proceedings provided by s 37 will have been traversed. The present appeal

questions the position where a local authority complies with a s 37 direction by

undertaking an investigation but decides not to make an application under s 31 and Judgment Approved by the court for handing down. Double-click to enter the short title

purports to comply with s 37(3) by informing the court of their reasons, any services

that are to be provided to the family and any other action that is to be taken.

25. A significant facet of the s 37 bridge is that where a court directs that a report is to be

provided under s 37 a limited jurisdiction is established by s 38 under which,

depending on the facts of the case, the court may make an interim care order or

interim supervision order. If an interim care or supervision order is made the

proceedings will, for the duration of that order, become ‘specified proceedings’ under

CA 1989, s 41 and the court thereby has jurisdiction to appoint a children’s guardian

for the child. The relevant parts of CA 1989, s 38 are:

38 Interim orders

1) Where

(a) in any proceedings on an application for a care order or

supervision order, the proceedings are adjourned; or

(b) the court gives a direction under section 37(1).

the court may make an interim care order or an interim supervision order with

respect to the child concerned.

2) A court shall not make an interim care order or interim supervision order

under this section unless it is satisfied that there are reasonable grounds for

believing that circumstances with respect to the child are as mentioned in

section 31(2).

3) ….

4) An interim order made under or by virtue of this section shall have effect for

such period as may be specified in the order, but shall in any event cease to

have effect on whichever of the following events first occurs –

(a) the expiry of the period of eight weeks beginning with the date

on which the order is made;

(b) if the order is the second or subsequent such order made with

respect to the same child in the same proceedings, the expiry of the

relevant period;

application;

(d) in a case which falls within subsection (1)(b), the disposal of an

application for a care order or a supervision order made by the

authority with respect to the child;

(e) in a case which falls within subsection (1)(b) and in which –

(i) the court has given a direction under section 37(4), but

(ii) no application for a care order or supervision order has

been made with respect to the child,

the expiry of the period fixed by that direction.

5) In subsection (4)(b) “the relevant period” means –Judgment Approved by the court for handing down. Double-click to enter the short title

(a) the period of four weeks beginning with the date on which the

order in question is made; or

(b) the period of eight weeks beginning with the date on which the

first order was made if that period ends later than the period

mentioned in paragraph (a).

6) ….

26. It is to be noted that s 38(4) limits the length of an interim care or supervision order to

the earliest occurring of a number of events. In the context of a s 37 direction which

does not result in the local authority issuing a s 31 application, an interim order under

s 38 will come to an end on the date when whichever of the following events first

occurs:

i) the expiry of the period of eight weeks beginning with the date

which the order was made [s 38(4)(a)];

ii) if the order is the second or subsequent such order, the expiry of

‘the relevant period’ (being either the remainder, if any, of the

first eight weeks after the making of the first order or four

weeks) [s 38(4)(b)+(5)]; or

iii) the expiry of any court directed period varying the normal eight

week period fixed for a local authority to comply with a s 37

direction [s 37(4) and 38(4)(e)].

27. The first stage of Mr Pressdee’s submissions on s 37 was to suggest that the decision

of Wall J (as he then was) in Re CE (Section 37 Direction) [1995] 1 FLR 26 made it

impermissible for a court to order repeat interim care orders under the umbrella of a s

37 direction. The issue in Re CE was whether there was jurisdiction to continue the

appointment of a children’s guardian, who had been appointed during the currency of

a s 37 direction, once the s 37 had run its course with the outcome that no care

proceedings had been issued. Wall J concluded that where a s 37 investigation runs its

course with the outcome that the local authority declines to issue care proceedings, the

court has no continuing jurisdiction to maintain an interim care order with respect to

the child; the proceedings will thereby cease to be ‘specified proceedings’ under s 41

and the jurisdiction to appoint a children’s guardian will also come to an end.

28. In the course of his judgment Wall J made a number of observations (at pages 42 and

43) highlighting the inability of the court to make an interim care order in the absence

of a full s 31 application made by the local authority other than during a live s 37

direction. Wall J does not refer, one way or the other, to the court having jurisdiction

to make more than one single s 37 direction in a case. Mr Pressdee submits that it is

therefore implicit that Wall J was working on the assumption a court does not have

jurisdiction to make a second or subsequent s 37 direction. He submits that this is

consistent with the use of the word ‘investigation’ in the singular throughout s 37.

29. Whilst the statutory analysis urged by Mr Pressdee may be arguable, I do not regard

the judgment of Wall J in Re CE as being any authority on this point. It is plain from Judgment Approved by the court for handing down. Double-click to enter the short title

the facts of Re CE and from the judge’s approach that the option of the court making a

further s 37 direction (and thereby continuing an interim court order and the

appointment of a guardian) simply did not arise. The s 37 direction process had run its

course, the local authority had determined not to issue a s 31 application, there was

therefore no continued jurisdiction to make an interim care order under s 38 and no

power to maintain the guardian’s appointment.

30. In Lambeth LBC v TK and KK [2008] EWCA Civ 103; [2008] 1 FLR 1229, the Court

of Appeal considered a case where the local authority had responded to a s 37

direction by producing a report which solely contained evidence relating to the

‘child’s’ age and the authority’s assertion that she was not in fact a ‘child’. Wilson LJ

(at paragraph 29) did not regard the local authority as having yet made a substantive

report in response to the s 37 direction, notwithstanding that a ‘report’ had been filed.

The implication, and it is no more, is that Wilson LJ contemplated that a further report

from the local authority would be, and could be, required by the court.

31. In an appropriate case the jurisdiction in private law proceedings for the court to make

a s 37 direction is an important and useful facility under which a local authority is

required to investigate a child’s circumstances and required to consider issuing care

proceedings. A private law case may last for a significant time and the circumstances

of a child who is the subject of the proceedings may change. It would be wholly

artificial to limit the court’s ability to utilise the s 37 jurisdiction to ‘one shot’ in each

case. Nothing in the statutory language suggests that there is to be such a limitation on

use. To the contrary, by s 37(1) the jurisdiction exists ‘where, in any family

proceedings in which a question arises with respect to the welfare of any child, it

appears to the court that it may be appropriate for a care or supervision order to be

made’. Circumstances sufficient to justify it appearing to the court that a public order

may be appropriate may occur for a variety of reasons and at different stages during a

single set of proceedings.

32. In the present case, the judge made a series of s 37 directions arising out of the same

factual context on the basis that the investigation conducted by the local authority

was, on each occasion, unsatisfactory. As a matter of principle, and before turning to

the facts of this case and the justification for the judge’s exercise of the jurisdiction in

this case, it must be the case that where a judge is satisfied that the local authority has

either simply not complied with an initial s 37 direction, or has conducted an

investigation which fails to a significant degree to engage with the court’s concerns,

the court has jurisdiction to extend or renew its s 37 direction. It will be a question in

each case to determine whether such a course is justified. In approaching that question

it will be necessary to bear very much in mind that the statutory structure is firmly

weighted in favour of the local authority, which, alone, has the power to issue a public

law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim

Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure

thus:

‘[The court] cannot require the local authority to take proceedings. The limit of

[the court’s power] is to direct the authority to undertake an investigation of the

children’s circumstances.’ [paragraph 123]

33. Having looked at the matters of principle raised by Mr Pressdee, and having

determined that a court does have jurisdiction to make more than one s 37 direction Judgment Approved by the court for handing down. Double-click to enter the short title

during the currency of private law proceedings and has jurisdiction to extend or renew

an earlier s 37 direction if the circumstances so justify, I now turn to look at the

deployment of that jurisdiction by HHJ Tyzack in the present case.

th December 2010

34. The judgment given on 10

December 2010 in support of the first s 37 direction and

interim care order is, on any view, very short and in full reads:

‘I am quite satisfied in this case that the situation before me is a grave one in

which the litigation has been entrained in respect of [Tok and Tun] for something

like four and half years. Having heard the evidence of Dr Freedman yesterday and

having read her reports and having today heard the evidence of the guardian, I

should say yesterday very helpfully as well have having received Mrs

Churchman’s [the social worker] observations, it was not oral evidence but her

observations about the situation for these boys, that the situation is one in which

this court is in really no doubt at all that the criteria for s 38 of the CA 1989 are

met.

Namely that in so far as [Tun] is concerned born on 20

January 2000 now aged

10 the court at the very least is satisfied that there are reasonable grounds for

believing that the threshold criteria in s 31 of the Children Act are met. Having

heard Mr Ingham, the guardian, today and having read his reports it is quite clear

to me that [Tun] is in a situation where he has suffered emotional abuse at the

hands, probably principally of Mr B but also in respect of his mother, Mrs B

failing to protect him from Mr B’s bullying and intimidating behaviour.

Also there are reasonable grounds for believing that [Tun] is at risk of suffering

emotional abuse in the future. The court would be failing in its duty under the

Children Act in particular section 1 where the welfare of [Tun] is the paramount

consideration if I did not make today an interim care order to LCC.

I have been helpfully informed that LCC will carry out an immediate assessment

because it seems to me that an order is needed under s 37 of the CA 1989

requiring Leicestershire social services to assess [Tun]’s position and to come

back to the court with a report in due course indicating whether any public law

order is required.

I also feel that the situation is serious enough, in the light of the failure by the B’s

to cooperate wholeheartedly in the past with professionals such as social workers

from Leicestershire and indeed this guardian, Mr Ingham, that there should be no

delay in assessing with the B’s will cooperate with such a s 37 enquiry.’

35. Mr and Mrs B are very critical of this judgment. As a result of the lack of detail, they

claim to have asked for clarification from the judge on many occasions so that they

may understand the basis upon which the order was made. A transcript of the

judgment apparently only became available during the preparation of this appeal. The

fact that the transcript indicates a confusion as to the name of the two boys (which I

have corrected in the above quotation) has only compounded Mr and Mrs B’s

exasperation.Judgment Approved by the court for handing down. Double-click to enter the short title

36. It is important to step back from the judgment itself and consider the wider context in

which it was given, which was that the court had been immersed for over a day in

professional and expert evidence from Dr Judith Freedman, a nationally respected

child and adolescent psychiatrist, and the children’s guardian, both of whom

expressed very clearly that Tun was exposed to significant emotional harm in the

home of Mr and Mrs B. Dr Freedman’s report and the various position statements and

reports from the guardian had been disclosed to Mr and Mrs B and indeed they were

plainly aware of the guardian’s previous attempts to achieve an interim care order

with other judges at earlier hearings on the same basis.

37. Mr Pressdee rightly concedes that the court had sufficient evidence upon which it

could properly reach the view under s 37(1) that ‘it may be appropriate for a care or

supervision order to be made’ with respect to Tun, and to concede that there was also

sufficient evidence to be satisfied under s 38(2) that there were reasonable grounds for

believing that the s 31 threshold criteria were met in Tun’s case, thereby opening the

jurisdiction to make an interim care order. He is, however, critical of the judge’s

failure to set out in full and clear terms the rationale for making a s 37 report to LCC

(who were not at court and not parties to the proceedings). He also draws attention to

the structure of the judgment in which the judge makes the interim care order before

making the s 37 direction, whereas as a matter of law the latter should precede the

former.

38. In relation to the 10

December 2010 hearing I consider that Mr Pressdee’s criticisms

are well made. In order for the s 37 facility to be effective there is a need for the judge

to communicate with the local authority in clear terms so that the social workers, who

almost by definition will not be privy to the private law proceedings prior to the

direction being made, may understand the focus of the court’s concern. It is also

obviously important for judges to work through the jurisdictional stages established

by s 37 and s 38 in the correct sequence. That said, I am clear that no unfairness or

material error resulted from the judge’s approach. He had ample expert and

professional evidence upon which to be satisfied that grounds necessary for ss 37 and

38 were established. Mr and Mrs B, although they had not attended the hearing, were

well aware of this evidence which featured in written reports and had been raised at

earlier hearings. The short judgment, whilst possibly unhelpful at the time, does not

indicate an absence of clear grounds for making the orders that were made. For these

reasons I would not have upheld the appeal in relation to the December 2010 interim

care order if it were being heard at a time close to the original order; looked at now,

some two years later, the points made are effectively academic in any event.

39. Mr and Mrs B’s reaction to the order, and their decision not to cooperate with LCC,

was a matter for them. The removal of Tun from the care of Mr and Mrs B under the

interim care order on the 15

December was a consequence of their decision not to

cooperate with an order of the court that had been validly made and was, in any event,

in force.

January 2011

40. Prior to the hearing on 31

January 2011 LCC had filed a 16 page report in purported

compliance with the first s 37 direction. An unapproved note of the judgment and the

fairly full recitals within the order made on that day make it plain that the judge

regarded the report as being deficient in the following respects:Judgment Approved by the court for handing down. Double-click to enter the short title

a) Inadequate evaluation of the risk of Tun suffering emotional harm if he

were to return to the care of Mr and Mrs B;

b) No assessment of the option of placing Tun with the maternal

grandparents in Devon;

c) The effect on Tun (and his education) of any further moves.

LCC indicated a willingness to file an addendum to the s 37 report, but it did not wish

the court to make another interim care order. The judge nevertheless made a further

interim care order and, in doing so, he acknowledged that under the order it was for

the local authority and not the court to determine where Tun should be placed. He

nevertheless urged LCC to think carefully before returning the boy to his mother’s

home.

41. For the reasons that I have already given (see paragraph 31 and 32) a court has

jurisdiction to make more than one s 37 direction in the course of ongoing

proceedings. Here the judge identified specific deficiencies in the report that had been

provided and the local authority accepted that it was appropriate for an addendum

report to be provided. Mr and Mrs B rightly point to an observation of the judge made

in a judgment in April 2011 to the effect that the reports from LCC (including the first

s 37 report) were comprehensive and thorough. I do not however consider that that

observation is incompatible with the decision to order an addendum report in January

2011. The content of the first report was indeed sound, the problem, as the judge

apparently saw it, was not what was in the report but what had been left out. He

therefore directed an addendum to fill in the apparent deficiencies. The evidence that

had supported the making of the original interim care order remained unchanged as,

apparently, did the level of judicial concern at the prospect of Tun living with Mr and

Mrs B. Mr Pressdee rightly accepts that the evidence continued to provide a basis for

a further interim care order. As a matter both of jurisdiction and of process therefore I

cannot find that the making of a further s 37 order together with an interim care order

in January 2011 can properly be challenged.

th March 2011

42. Prior to the hearing on 4

th March 2011, LCC had complied with the request for an

addendum by filing a substantial 30 page report, which concluded that Tun should be

returned to his mother’s care under a Family Assistance Order to LCC for a period of

12 months. The recommendation was based upon the level of cooperation between

LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that

it did not intend to make an application under CA 1989, s 31 for a care or supervision

order.

43. It has not been possible to obtain a transcript of the March 2011 judgment, but we

have seen an attendance note of the hearing made by counsel for LCC and a note of

the judgment prepared by Dr K’s counsel. LCC’s counsel seemingly met the

jurisdictional issue head on by submitting to the judge that there were now no reasons

that might justify making a further s 37 direction and therefore no jurisdiction to

contemplate making a further interim care order. The judge apparently pointed to

aspects of the report which gave rise to fresh concerns, in particular with regard to

sanitation at the B’s home and the prospect that they might be evicted. He was also Judgment Approved by the court for handing down. Double-click to enter the short title

concerned that the social worker regarded it as acceptable for Tun to be left to protect

himself from emotional harm by ‘developing strategies’ to cope with Mr B’s

behaviour. These concerns are mirrored in the note of judgment which continues:

‘I am satisfied that it would not be right to act on what [the social worker] has

said and I am not minded to discharge the ICO. I require the local authority to

address the concerns of the father and the children’s guardian and the court on

reading [this report]. I shall give [the social worker] 21 days to respond. I shall

direct that input on behalf of the father and the guardian be put to [the social

worker] within 14 days.’

On that basis the judge made a further s 37 direction for 21 days and a further 28 day

interim care order.

44. Mr Pressdee submits that the judge’s actions on the 4

th March are in a different

category from those at the earlier two hearings and that it is hard to avoid the

conclusion that the judge, sitting in private law proceedings, was effectively dictating

to a local authority and seeking to subvert the delineation of role, enshrined in CA

1989, which separates the local authority from the court. He also submits that the

judge, once again, inverted the order of decision making by first determining that he

was ‘not minded to discharge the interim care order’ before making the s 37 direction.

Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why

the s 37 report was deficient; instead he delegated that role to the father and the

guardian who were, over the course of 14 days, to indicate their concerns to LCC. In

this context it is of note that the guardian had apparently departed on leave prior to

seeing the March s 37 report and was not at the hearing. His views on the document

were therefore not available to the judge at that time.

45. Although a court has jurisdiction to make more than one s 37 direction in the course

of proceedings, the exercise of that jurisdiction is to be considered at each turn with

regard to the evidence that is then before the court and with regard to the firm

weighting of the legislation in favour of the local authority being the determining

body on the question of whether or not a child is to be the subject of care proceedings.

In each case and at each hearing there will be a line beyond which the court may not

go in deploying the facility provided by s 37 under which an interim care order may

be made. Whilst the position of the line will vary in accordance with the particular

circumstances of the case, the existence of the line and the need for the court to be

aware of it should not be in doubt.

46. By the 4

th March the local authority had plainly discharged its duty under s 37 to

investigate Tun’s circumstances, it had provided a comprehensive report of that

process and had described the reasons for its considered and sustained opinion which

was that it did not consider that a care or supervision order was justified at that time.

On the evidence as it was at that hearing, making a further s 37 direction and, on the

back of that, a further interim care order were steps that were clearly on the far side of

the jurisdictional line delineating the role of the court from that of a local authority. In

making these orders on that day the judge would seem to have failed to appreciate the

limitation of his powers.

47. In addition, where a local authority is presenting a considered position which is

against the issue of care proceedings, it must be incumbent upon a court which holds a Judgment Approved by the court for handing down. Double-click to enter the short title

contrary view to spell that view out in clear terms and full detail in a reasoned

judgment. In the circumstances, it was not sufficient simply to refer back to the

December 2010 judgment and recite that the interim threshold had been satisfied at

that time; it was, by March 2011, necessary to engage with the contrary view that was

being firmly and consistently presented by LCC. The short judgment that was

apparently given, and the delegation of the task of spelling out the suggested deficits

in the local authority assessment to the father and children’s guardian were significant

procedural errors.

48. If this appeal were being heard during the currency of the 4

th March 2011 order, rather

than 18 months later, the s 37 direction and with it the interim care order would have

to be set aside on the basis that the court had exceeded its jurisdiction in making them

and had done so in a procedurally unsustainable manner.

The proceedings as a whole

49. Thus far I have focussed upon three important but specific hearings. It is now time to

step back and consider the wider case that Mr and Mrs B seek to establish. That case

is that, from the start in December 2010, HH Judge Tyzack had been set upon

achieving the permanent removal of Tun from their care. They assert that at each turn

the judge acted unfairly towards them and displayed obvious bias against them in the

decisions that he made. The decisions of LCC to remove Tun in December 2010 and

not to return him to the care of Mr and Mrs B in March 2011 were, on each occasion,

the result of Mr and Mrs B withdrawing from cooperation with the social workers. Mr

and Mrs B justify their actions at those times on the basis that they did not agree with

the court orders that had been made and were therefore fully justified in withdrawing

from cooperation.

50. In presenting their case to us Mr and Mrs B were plain in making their allegation of

judicial bias. They submitted that ‘the fact is that the judge did not make an error [as

to his jurisdiction], he did it on purpose. He knew that it was outside the Children Act

but he carried on like a bull in a china shop’. Having heard others submit that

whatever may have occurred in the earlier stages of the hearing, the overall result was

sound, Mr and Mrs B concluded their case by saying that once the judge had made

errors of jurisdiction in the period December 2010 to March 2011 ‘the damage was

done and it could not be put right’.

51. In assessing the fairness of court proceedings and, more particularly, in investigating

whether the serious allegation of judicial bias is established it is necessary to look at

the proceedings as a whole, rather than dwelling only upon one or two events in the

course of a long sequence of hearings. If Mr and Mrs B are to succeed in this appeal

on their wider case, they will only be able to do so by establishing unfairness or bias

which runs right through the process or which is a feature of the proceedings as a

whole.

52. I have already drawn attention to the judge’s judgments of December 2010, January

and March 2011 which fall short of the level of detail required to communicate to the

local authority why the court was making orders under CA 1989, s 37 and s 38. In

relation to the March hearing, I have held that the exercise of jurisdiction and the

absence of detailed reasons would have led to the orders being set aside had they been

challenged at the time. The fact that a judge may give a judgment which is so short as Judgment Approved by the court for handing down. Double-click to enter the short title

to be an inadequate means of communicating with a local authority in the context of s

37 does not, however, mean that the process is automatically ‘unfair’ to the other

litigants. It is not always possible for a judge to give a full judgment on a particular

day and where, as here, the parties, including Mr and Mrs B, were well aware of the

evidence upon which the court’s conclusions were based, the overall fairness of the

process has to be considered in that light. In contrast to those that preceded it, the

judgment given by HHJ Tyzack on 12 April 2011 is substantial and detailed and

focuses upon the events following December 2010, upon the judge’s analysis of the

evidence and the welfare needs of Tun at that stage. Whilst Mr and Mrs B now seek to

challenge the orders made on that day, they did not do so at the time. Having read that

judgment with a clear eye upon the judicial bias case that is being advanced, I cannot

see evidence of bias in the judge’s approach, which is supported by the evidence to

which he refers and which was supported by unanimous professional and expert

opinion.

53. Mr Rupert Chapman, counsel for LCC, had a difficult path to tread before this court

in that his client’s case before the judge had been that there was no jurisdiction to

make further s 37 and interim care orders, whereas LCC now support the judge’s

handling of the case and his final conclusions. Despite the forensic delicacy of his

position, Mr Chapman was firm in refuting Mr and Mrs B’s assertion that they only

withdrew from cooperation as a result of the judge’s sustained interference with their

care of Tun by way of court orders. Mr Chapman points to the long history of noncooperation by Mr and Mrs B with the local authority and the court process. In

particular he points to clear evidence that the B’s had been antagonistic to the orders

of previous judges prior to the involvement of HHJ Tyzack.

54. In the context of their overall case alleging judicial bias, the judge treated Mrs B’s

opposition to his continued involvement as a formal application for him to recuse

himself from the case at a hearing in November 2011. The court order records that

Mrs B had given no reasons to support her position and the deemed application for

recusal was refused on 22 November 2011. It is of note that Mrs B made no

application to appeal the judge’s refusal to stand aside. Instead, as I have recorded at

paragraph 14, in December 2011 Mrs B filed detailed documents in the case, but

indicated that she was seeking neither residence nor contact with Tun at the

forthcoming hearing.

55. The order of 22 November 2011 is of note as it contains detailed provisions which

seem designed to give Mr and Mrs B clear notice of the content and structure of the

final hearing that was listed for two days in January 2012. The eight witnesses who

were booked to be called were listed, but Mr and Mrs B were given a detailed

procedural path through which they could apply to have other witnesses called. Mr B

was given permission to intervene for the purposes of cross examining the local

authority witnesses. Those directions, and the very fact that the matter was being set

up for a two day hearing, do not indicate to me that the judge had a closed mind or

that he was pursuing his own agenda against Mr and Mrs B in the biased and unfair

manner that they allege.

56. The final hearing took place on 13 January 2012. Neither Mr nor Mrs B attended the

hearing. Mrs B applied for an adjournment on the grounds that her GP had advised

that she was too emotionally labile to cope with the court process. The judge, having

in particular heard of the need for Tun to know the outcome of the court process and Judgment Approved by the court for handing down. Double-click to enter the short title

where he was to live, refused to adjourn the hearing. Given earlier communications

from Mrs B (to which I have already made reference) he concluded that neither Mr

nor Mrs B had any intention of attending the hearing in person. The judge refused an

application for Mr B to represent Mrs B in her absence as her McKenzie Friend, but

he did permit Mr B to question the social workers over the telephone during the

hearing.

57. In a set of ‘written reasons’ covering 59 paragraphs handed down after the hearing,

HHJ Tyzack described the procedure adopted and the analysis of the evidence which

had led him to conclude that Tun should remain placed with the maternal

grandparents and that that placement should be under a special guardianship order.

My reading of that document is that at each stage the judge describes the decision that

he has taken, be it procedural or substantive, cross refers it to the evidence or

information that was before the court and then sets out clear reasons for the

conclusion to which he has come. There is, in my view, nothing in that document that

could advance the case of judicial bias or, indeed, procedural unfairness and it is of

note that Mr and Mrs B do not really refer to this important concluding judgment in

presenting their appeal.

58. It is, however, part of Mr and Mrs B’s case before us that the decision to place Tun

with his maternal grandparents was plainly wrong as being totally contrary to his best

interests. Even if he had to be in care, they say that would be a better outcome than

living in his present home. Both at the permission to appeal stage and at this hearing

Mr and Mrs B have submitted information and given accounts of Tun displaying very

difficult behaviour at school and elsewhere with the result, they say, that his

educational needs are not being met and he is on the fringes of the criminal justice

system.

59. The information provided by Mr and Mrs B is an obvious source of concern, but

having now been taken by counsel for the local authority to the material before the

judge which indicates that these difficulties were known about at the time of the

hearing, and having been told in very clear terms by Mr Pressdee that the guardian

does not support the appeal upon this aspect of the case, I am clear that the choice of

placement was a decision as to the child’s welfare in relation to which the judge had a

wide margin of discretion. His decision to place and consolidate Tun in the home of

the maternal grandparents was supported by all of the expert and professional

evidence, and was urged upon him by all parties save for Mr and Mrs B. The

worrying matters to which reference is made were properly before the court and

therefore part of the welfare balance undertaken by the social workers, the guardian

and, ultimately, the judge. In order to succeed on this aspect of their appeal, Mr and

Mrs B would have to establish that the judge’s choice of placement was plainly

wrong; it is simply not possible to characterise the judge’s decision in that way and

the appeal on this ground must fail.

Conclusion

60. In the circumstances, Mr and Mrs B’s appeal must stand or fall upon the conclusion to

be reached on their core assertion which is that the whole process before HHJ Tyzack

was fatally tainted by unfairness and judicial bias against them. Their case is assisted

by the conclusion at which I have already arrived to the effect that in making the

March 2011 s 37 direction and a further interim care order the judge exceeded his Judgment Approved by the court for handing down. Double-click to enter the short title

jurisdiction. That conclusion is, however, the high point of their case on bias and

unfairness. The conduct of the proceedings has to be looked at as a whole. From that

perspective, for the reasons that I have given, I can detect no evidence of judicial bias

or procedural unfairness. On the contrary the judgment of April 2011, the directions

order of November 2011 and the full reasons given for the final decision in January

2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process,

should they choose to take part in it, and laying out clearly the factors that he was

concerned about and in relation to which he would need to see evidence of change,

should Mr and Mrs B wish to provide such. The actual decisions made by the judge

were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in

not, of itself, any indication of judicial bias. In the present proceedings it would seem

that Mr and Mrs B’s unilateral actions in withdrawing from cooperation with LCC

and with the court at key stages contributed much to the way in which their claim to

have Tun in their care became progressively less and less tenable.

61. Having undertaken a thorough analysis of the process in this case, and despite having

concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied

that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs

B had appealed the March 2011 interim care order at the time then, in my view, that

appeal would have succeeded. They did not do so. Instead they withdrew from

cooperation with a local authority, which hitherto had been supporting them to be

Tun’s carers. Events moved on and now, some 18 months later, the finding of error in

March 2011 is part of the history and cannot, of itself, lead to a finding that the

judge’s final conclusion should be set aside with the result that the whole question of

this young boy’s future should, once again, be considered afresh by the court.

62. For the reasons that I have given I would dismiss this appeal.

Lord Justice Sullivan

63. I agree.

The Master of the Rolls

64. I also agree.

HHJ Tyzack - the worst Judge in the UK - NOW RETIRED!!! OH YES HES GONE!!

Thursday, 29 November 2012

here is the cover up for HHJ TYZACK:

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