Re O (Care Proceedings) [2024] EWCA Civ 696

This case concerned an appeal as to whether the Judge’s decision at a case management hearing to exclude a mother as a future carer for the child was unjust because of a procedural irregularity.

The case concerned O, a boy aged 10 months old. O had 3 older siblings age 10, 9 and 7 who had been subject to earlier proceedings and made subject to final care orders with care plans for placement with extended family members and supervised contact with their parents. This was following a two day final hearing before HHJ Earley at a point when the Mother was 8 months pregnant with O. Judgment was delivered on 19 July 2023 in which it was recorded that Mother was a vulnerable person because she was the victim of abuse and had difficulties understanding complicated matters and maintaining concentration and as a result, had the support of an intermediary. In her judgment, the Judge made a number of findings being (1) Mother had been subject to coercive, controlling and abusive behaviour perpetrated by Father (2) the three children had been subject to emotional harm growing up in a home with domestic abuse (3) Mother had failed to protect the children from emotional harm despite attempts from professionals to keep them safe (4) In November 2022 the eldest child had been assaulted by Father (5) Mother subsequently accused the child of lying and put pressure on him to change his account thereby causing further emotional harm.

During her evidence concerning the elder children, Mother said she had now separated from Father and the Judge observed “I am clear that they need to maintain that separation as the findings that I have made evidences their relationship is unhealthy and volatile. That relationship has caused harm to the children and the unborn baby”.

O was subsequently born on 6 August 2023 and the local authority initiated care proceedings immediately, the following day O was subject to an ICO and subsequently placed in foster care. The Mother put forward a number of names as potential carers for O however following viability assessments, none of the names put forward were viable options. The local authority filed a care plan of adoption and issued an application for a placement order. It should be noted that the local authority had also completed a pre-birth assessment on Mother (in addition to the parenting assessment within the previous proceedings) which concluded that Mother did not have capacity to care for O as she did not accept the need to make changes or that she required support.

The matter was listed for a three day final hearing before HHJ Earley, who had had conduct of both sets of proceedings. On day one, the court heard evidence from the local authority witnesses however on day two, it became known that members of father’s extended family had been identified as potential carers for O. Initial investigations concluded that this may be a viable option for O and it was agreed that the final hearing should be adjourned. At the same time, the Mother applied for further assessment either by way of an ISW or in a residential unit. This application was refused 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. The Judge also recorded that although Mother had spent time in a refuge, she had not engaged with work around domestic abuse and keeping her and O safe, father had not undertaken any work on domestic abuse and Mother had now moved back to live with Father whilst denying she was in a relationship with him. The order made following the hearing included various case management directions to facilitate assessment of Mr and Mrs A and also included a direction for the local authority to file an assessment of another couple from the extended family and their ability to support Mother and O if she were to live with them.

The assessment of the other couple came to nothing but the assessment of Mr and Mrs A was positive and on 17 April 2024 a case management hearing took place to consider the local authority’s amended interim care plan to place O with the A’s for a period of further assessment. This was was agreed by all parties. At the same hearing, the local authority also proposed that Mother’s contact should be postponed for a period of 10 weeks to allow O to settle into placement, which although opposed by the Mother, was endorsed by the Court with the Judge observing “Again back in February I was asked to think about whether there should be a further assessment of mother and whether she should care for O. I considered the application and was clear that 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 A’s. I am clear the realistic options are placement with the A’s or adoption”. A number of case management directions were made which took the matter through to the part-heard final hearing which was to be listed for 1 day on 21 August 2024.

Within the case management order from the hearing on 17 April 2024, amongst other recitals there included the one which subsequently led to the appeal, this being:-

“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 A’s 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 A’s if the assessment of them was positive”.

On 24 April 2024, Mother’s representatives filed a notice of appeal against the provision in the order ruling out mother as a realistic option to care for O. The ground of appeal being that it was procedurally unfair for the Judge to rule out the Mother as a realistic option to care for O at a case management hearing in the following circumstances:

  • 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.
  • Mother had a reasonable expectation that she continued to be included within the group of realistic options being considered to care in circumstances where at the hearing in February 2024 (i) the court did not expressly rule her out as a realistic option (ii) the local authority had been directed to file and serve evidence assessing the proposal for mother and O to live with and be supported by extended family members.
  • The issues for the hearing in April 2024 did not expressly include the question whether mother might be ruled out as a realistic option to care and no party had raised it as an issue for determination at that hearing.
  • The hearing in April was listed for 1 hour which the court and parties had to deal with other significant, albeit allied issues.
  • Prior to the decision, the parties had not been aware the Judge was contemplating ruling out the mother as a realistic option to care for O.
  • 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.
  • 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.

Permission to appeal was granted on 23 May 2024. The appeal judgment helpfully sets out the leading authorities regarding ruling out hearings being:

In Re J (Care Plan for Adoption) [2024] EWCA Civ 265, the Court observed that holding a North Yorkshire (North Yorkshire County Council v B [2008] 1 FLR 1645) 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 in Re G (A Child) [2013] EWCA Civ 965 and Re B-S [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 of, on the evidence, the parents 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 a final hearing”.

The Court also reminded itself of an earlier case, Re S-W (Children) (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27 in which the Court allowed an unopposed appeal by a Mother against care orders made at a case management hearing some three weeks after proceedings began. In such case, King LJ said:

“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)… 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 the case”.

In Re S-W the President also observed:

“Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case… But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays regard to two fundamental principles which apply as much to family cases as to any other type of case. First, a parent facing the removal of their child must be entitled to put their case to the court however seemingly forlorn. Secondly, there is a 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.”

In the case of O, the Court found that whilst not on the same scale as the complaints in Re S-W, the Judge did make a decision of her own initiative which was recorded as a recital on the order and without prior notice to the parties and in particular the mother who was vulnerable herself and who was expecting to participate in a hearing only dealing with procedural aspects. Although Mother had had an opportunity to cross examine local authority witnesses at the earlier part-heard final hearing, the Mother had not had an opportunity to give evidence herself or cross examine the Guardian and that “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”. The Court concluded that the Judge’s decision was a procedural irregularity which was sufficiently serious to lead to injustice therefore allowing the appeal and the recital in question was subsequently deleted from the order.