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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O, Re (Care Proceedings) [2024] EWCA Civ 696 (20 June 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/696.html Cite as: [2024] EWCA Civ 696 |
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2024] EWCA Civ 696 | ||
2024-000909 |
CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WORTHING
HH Judge Earley
SD2350176
Strand, London, WC2A 2LL |
||
2024 |
B e f o r e :
LORD JUSTICE BEAN
and
LORD JUSTICE BAKER
____________________
| O (CARE PROCEEDINGS) |
____________________
Jacqueline Roach (instructed by Local Authority solicitor) for the First Respondent
Maria Hancock (instructed by Spearpoint Franks) for the Second Respondent
Shelly Glaister-Young (instructed by Emily Carter-Birch) for the Third Respondent, by his children's guardian.
Hearing date : 20 June
2024
____________________
Crown Copyright ©
LORD JUSTICE BAKER :
2024
before Judge Earley, who had had conduct of both sets of proceedings. On day 2, however, it became known that members of the father's extended family, Mr and Mrs A, had been identified as potential carers. Initial investigations suggested that this was a viable option, and the parties agreed that the hearing should be adjourned for a full assessment. At the same hearing, the mother applied for a further assessment, either by an independent social worker or in a residential unit. The judge recorded that, although the mother had spent some time in a refuge, she had not engaged with work about domestic abuse and keeping herself and her child safe; that the father had not undertaken any work on domestic abuse; and that the mother had now moved back to live with the father whilst denying that she was in a relationship with him. The judge refused the mother's application for a further assessment on the grounds that the previous assessments had been fair and thorough and there was no reason to think that a further assessment would reach a different conclusion. According to the approved note of judgment dated 7 February, she concluded by saying:
"There are no gaps in the evidence other than whether O can be cared for by the As. The outstanding information that is necessary is whether there is a realistic plan for family placement for O. The applications for assessment by an ISW or a residential assessment of the mother are dismissed."
There was no appeal against the judge's decision.
2024,
the matter returned to court for a further case management hearing to consider the local authority's amended interim care plan to place O with the As for a period of further assessment. All parties approved the proposed move. The local authority, however, also proposed that there should be a 10-week suspension in the mother's contact. The mother objected to this proposal but, after hearing submissions, the judge endorsed it.
"Again back in February I was asked to think about whether there should be further assessment of the mother and whether she should care for O. I considered the application and [was] clear further assessment was not necessary …. I was satisfied the assessments had been thorough and fair and [there was] no reason to think that further assessment would bring about a different outcome. There was no gap in the evidence other than whether O could be cared for by the As. I am clear the realistic options are placement with the As or adoption."
The judge said that a suspension of contact was necessary to give the planned placement with the As the best chance of success and that, when contact was resumed, it would be on a much more restricted basis.
2024
and various case management directions were made to facilitate that hearing.
"5. In listing the resumption of the part-heard final hearing for one day, the Court observed that the realistic options for O are placement with the As or adoption, noting that it had been said on the mother's behalf at the previous hearing that she would support O's placement with the As if the assessment of them was positive."
(a) The court had heard oral evidence from the local authority witnesses at the final hearing which had been adjourned part-heard but had not heard evidence from the parents or the guardian.
(b) The mother had a reasonable expectation that she continued to be included within the group of realistic options being considered to care for her child in circumstances where at the hearing in February
2024
(i) the court did not expressly rule her out as a realistic option, and (ii) the local authority had been directed to file and serve evidence assessing the proposal for the mother and child to live with and be supported by extended family members.
(c) The issues for the hearing in April
2024
did not expressly include the question whether the mother might be ruled out as a realistic option to care for her child and no party had raised it as an issue for determination at the hearing.
(d) The hearing in April was listed for one hour during which time the court and the parties had to deal with other significant, albeit allied, issues.
(e) Prior to the decision, the parties had not been made aware that the judge was contemplating ruling out the mother as a realistic option to care for her child.
(f) The mother, who is a vulnerable party as defined by FPR 2010 rule 3A, had not been afforded an opportunity to provide instructions to her legal team on this important issue.
(g) The mother was not afforded an opportunity to make any representations about the issue, either in evidence (oral or written) or through submissions before or after the decision.
2024.
EWCA
Civ
27 (considered below) which provides some support for the appellant's position.
2024]
EWCA
Civ
265, this Court observed that holding a North Yorkshire hearing is still permitted although, following the decision of the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 33 and the subsequent decisions of this Court, including Re G (A Child) [2013]
EWCA
Civ
965 and Re B-S (Children) [2013]
EWCA
Civ
1146, the circumstances in which it will be appropriate to hold such a hearing are likely to be less common. As Sir James Munby P observed in Re R (A Child) [2014]
EWCA
Civ
1625, at paragraph 67:
"Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out. North Yorkshire County Council v B [2008] 1 FLR 1645 is still good law. So the possibility exists, though judges should be appropriately cautious, especially if invited to rule out both parents before the final hearing …."
EWCA
Civ
10, Re A, B and C (Fact-Finding: Gonorrhoea) [2023]
EWCA
Civ
437. The obligation to take all steps to ensure a fair procedure is even more acute where the party who would be adversely influenced by the decision has particular vulnerabilities of the sort suffered by the mother in this case, which require her to be supported by an intermediary. Regrettably, the course adopted by the judge in this case fell well short of what was required to ensure a fair procedure.
"28. The expectation is therefore that a CMH will ordinarily be an essential management hearing designed to get the case in proper order to enable it to be ready for disposal, whether by consent or following a contested hearing, within 26 weeks. This is in contrast to the IRH when all the evidence, including expert evidence should be filed and where, unlike the CMH, the rules specifically require consideration to be given as to whether the IRH "can be used as a final hearing" (PD12A Stage 3- Issues Resolution Hearing).
29. Every care judge will be conscious that, whilst it is in a child's best interests for their future to be determined without delay, it is equally in their best interests that the management of the case which determines their future should be fair and Article 6 compliant. The danger lies when, as unfortunately happened here, vigorous and robust case management tips over into an unfair summary disposal of a case."
Lewison LJ added:
"45. …. where parties arrive at court expecting to participate in a hearing that is to deal only with procedural aspects of progressing a case towards a final hearing, it is quite wrong for the court, on its own initiative and without prior notice to the parties – let alone any invitation from any of them – to treat the procedural hearing as if it were the final hearing and to make such a drastic order as the judge made in the present case. Had a party invited the judge to make the order that he in fact made without notice to the other parties one would have described it as "an ambush". The fact that it came from the court makes it worse, not better."
The President observed:
"55. Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013]EWCA
5, paras 27-28. But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays due regard to two fundamental principles which apply as much to family cases as to any other type of case.
56. First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn ….
57. Secondly, there is the right to confront ones accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so."
EWCA
Civ
881, [2012] 1 WLR 3169, Lord Neuberger MR said (at paragraph 24):
"…what a judge cannot properly do, however much he believes that he has fully read and fully understood all the documents and arguments before coming into court, is to dismiss the application without giving the applicant a fair opportunity to make out his case orally. It is vital that justice is seen to be done, but that is by no means the only, or even the main, reason for this. It is also because it is vital that justice is done. Any experienced judge worthy of his office will have had the experience of coming into court with a view, sometimes a strongly held view, as to the likely outcome of the hearing, only to find himself of a very different view once he has heard oral argument."
In the present case, there was still a possibility, however remote, that, at the adjourned final hearing, the mother would be able in oral evidence to demonstrate that she had made the changes needed in her life to justify giving her a chance to care for her son.
2024 to remain in the list and be heard by a different judge or recorder.
LORD JUSTICE BEAN
LORD JUSTICE LEWISON