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30 JAN 2015

Re S-W [2015] EWCA Civ 27

Re S-W [2015] EWCA Civ 27

(Court of Appeal, Sir James Munby, the President of the Family Division, Lewison, King LJJ, 30 January 2015)

The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 136

Public law children – Appeal – Final care orders granted at case management hearing – Whether the judge’s decision had been too robust

The full judgment is available below

The appeal from final care orders in relation to three children was allowed and the case was remitted for rehearing.

In care proceedings in relation to three children, aged 14, 11 and 10, the judge made final care orders at the first hearing – the case management hearing – but failed to give a judgment or provide reasons for taking such a step. The local authority application had been made just 3 weeks previously.

The local authority became involved with the family in 2006 due to concerns of general neglect, parental drug and alcohol abuse and the mother’s inability to break free from a violent relationship. The three children were removed from the home in 2012 and had not returned since. Two of the children were placed in the care of their respective grandparents but the middle child had lived in a series of unsuccessful foster placements. The local authority applied for final care orders in 2014.

The guardian had not had the chance to see the three children, all of whom were expressing a wish to return home to the mother. The report outlined her concerns regarding the middle child and in particular the circumstances in which he was placed with his father who had convictions for supplying Class A drugs and who assaulted the child while he was placed with him. She recorded that she wished to have the opportunity to read further records before a final decision was taken.

Prior to the hearing the legal representatives had agreed on a course action including hair strand drug testing on the mother and the convening of a family group conference. Interim care plans were available at the hearing but they were significantly out of date in relation to the middle child. A transcript of the hearing revealed that within a few minutes the judge made it abundantly clear that he was making final care orders.

The appeal was allowed and the case remitted for reconsideration. The danger lay when, as unfortunately happened here, vigorous and robust case management tipped over into an unfair summary disposal of a case. This was a case where the judge, in his desire to embrace and put into effect the family justice reforms, had unilaterally disposed of a case prematurely in circumstances where such a summary disposal was not only unfair to the mother but contrary to the interests of the children with whom he was concerned.

Case No: B4/2014/2970
Neutral Citation Number: [2015] EWCA Civ 27

ON APPEAL FROM Liverpool County Court
His Honour Judge Dodds LV14C01877

Royal Courts of Justice
Date: 30/01/2015


SIR JAMES MUNBY President of the Family Division, Court of Appeal

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Between: Re S-W (children)

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James Holmes (instructed by Jackson and Canter Solicitors) for the Appellant
Clive Baker (instructed by Liverpool City Council) for the 1st Respondent
Carl Gorton (instructed by MSB Solicitors) for the 2nd Respondent
Kate Burnell (instructed by Paul Crowley & Co Solicitors) for the 3rd Respondent

Hearing date: 11th December 2014

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Lady Justice King

[1] This is an appeal from final care orders made at the Family Court, sitting at Liverpool on the 7 August 2014, in respect of the three children of the appellant mother; ES born on the 27 July 2000 (14); LW born on the 9 October 2003 (11); and AW born on the 17 July 2004 (10).

[2] On the 18 July 2014, Liverpool City Council made an application for a care order in respect of all three children. At the first hearing, known as a Case Management Hearing (CMH), held on 7 August 2014, (less than three weeks after the application was made), the judge made final care orders in respect of each child. The mother sought permission to appeal the orders by an appellant’s notice dated the 8 September 2014; her Grounds of Appeal being directed at the summary disposal of the case at such an early stage of the proceedings.

[3] Permission to appeal was granted by Lord Justice McFarlane on the 30 October 2014. In granting permission, McFarlane LJ identified an issue of wider application saying:

“In any event, there is a compelling reason sufficient to justify this case being considered by the Court of Appeal. The judge’s approach could not have been more robust. He sought to justify such an approach on the basis that recent family justice reforms and case law. There is a need for the Court of Appeal to consider whether such a robust summary approach is justified and/or required by the recent extensive changes to procedure and case law and, if so, how the basic requirements of a fair trial and judicial analysis are to be accommodated in such a process”.

[4] Neither Liverpool City Council nor the children’s guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.


[5] The brief facts are as follows: The family have been known to Liverpool Children’s Services since 2006 although it was not until November or December 2012, that the children were removed from their mother’s care and accommodated under a s20 Children Act 1989 (CA 1989) agreement. The concerns of the local authority centred on the general neglect of the children, against a backdrop of alcohol and drug use, together with the mother’s inability to break free from a violent relationship.

[6] LW and AW were placed with their paternal grandmother and ES with his maternal grandmother. ES and AW continue to live with their respective grandparents and it seems likely that that will continue to be the case. LW and AW have the same father, LW Snr, who has been represented in the proceedings but who is presently remanded in custody in relation to criminal proceedings. ES’s father is not in contact with his son and had not been served with notice of the care proceedings by the date of the CMH.

[7] Unhappily, LW has fared less well than his brothers since he left his mother’s care in about November 2012. He has had 14 different placements, including two since the making of the care orders in early August 2014. LW is academically capable and has been described as ‘over achieving’ in school. LW is currently in local authority foster care but very much wishes to be allowed to live with his mother.

[8] Despite the longstanding concerns about the family, the local authority did not issue care proceedings until 18 July 2014. In February 2014 the mother had been told that there was the potential for LW to return to her care. During a pre-proceedings meeting which took place on the 19 March 2014, it was decided that the mother would be assessed as a potential carer for all the children, a decision which led to a parenting assessment being filed on the 4 July 2014. That assessment was not positive and ruled out rehabilitation of all the boys to their mother. Notwithstanding that conclusion, in light of LW’s continued instability, distress and fervent desire to go home, active consideration continued to be given to some sort of placement which would allow LW to be with his mother.

[9] Upon the issuing of the care proceedings a Guardian, Ms Deborah Cotterell, was appointed. As is required under the terms of the revised Public Law Outline (PLO), Part 12 Family Proceedings Rules 2010 (FPR Part 12: PD12A), the Guardian familiarised herself with the evidence then available and filed an Initial Evaluation for use at the CMH hearing. There is no expectation, either in the FPR 2010, or in practice, that the Guardian will have seen either the children or any of the parties prior to preparing her report for the CMH; indeed it would be wholly unrealistic to do so as, by FPR Rule 12; PD12A, the CMH is required to be listed between Day 12 and 18 starting from the date of issue of the care proceedings.

[10] The initial evaluation of Ms Cotterell, the Guardian, brought to the attention of the court three significant matters: i) She had not seen any of the children, each of whom was expressing a desire to live with their mother and ES was already 14 years old; ii) She set out her grave concern for the welfare of LW and the need for the local authority to explore all available options for him, whether within the family or, potentially, with a foster carer experienced in providing therapeutic support. Her concern to ensure that the local authority conducted a proper assessment of placement options for LW was heightened by the fact that the local authority had, at one stage, placed him with his father, a man with convictions for supplying Class A drugs. When LW subsequently made complaints of ill treatment at the hands of his father, the local authority, following some investigation, sent him back to live with his father against his wishes. The placement broke down again in circumstances which have resulted in the father being charged with assault on LW; iii) She recorded that she wished to have the opportunity to read the social work records, and wanted to see a wide range of documents, ranging from school reports to viability assessments of kinship carers.

[11] Prior to the listed CMH, an Advocates meeting was held as is required by the PLO: (PD12A: Stage 2). Discussions were held at the meeting and agreement reached as to the future progress of the case, details of which were noted down by Mr Baker, Counsel instructed on behalf of the local authority, with a view to them being put into the form of an order following further discussions which it was anticipated would be held at court immediately prior to the hearing.

[12] When they arrived for the hearing both the Advocates and Guardian were in agreement, subject to the judge’s approval, as to both directions and a timetable along the following lines:

i) The local authority would pay for a drugs hair strand test on the mother. This was a matter of considerable importance … because

ii) the local authority were to convene a Family Group conference in order to see if a way could be found for LW to return, in whole or part, to the care of his mother. It was hoped that if that could safely be achieved, it might act as a break on the disruptive behaviour which was leading to the constant breakdown in his placements. The local authority note of the meeting says “is it just about good enough with mum, may be able to go back.” The timetable was to provide for an addendum to the parenting assessment already filed by the local authority;

iii) Efforts were to be made to trace the father of ES who had not been served;

iv) Neither of the grandmothers wished to be considered as foster carers and therefore Special Guardianship assessments were to be carried out by the local authority with a view to securing the future of those two children by the making of Special Guardianship Orders;

v) It was agreed that a slimmed down number of documents from that listed by the Guardian in her report would be disclosed, but that only one or two of those documents would be placed in the bundle. This would allow the Guardian to carry out a full review of the case whilst ensuring compliance with Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)( the Bundles Direction) para 5.1 which limits the court bundle to 350 pages of A4 text; (see also Re W (Children) (Strict Compliance with Court Orders) [2014] EWFC 22);

vi) The matter would be listed for an early Issues Resolution Hearing (IRH) with a view to the case being concluded substantially within 26 weeks.

The Hearing

[13] On the morning of the hearing the court had, in addition to the Guardian’s analysis and the parenting assessment, a report from the social worker. The mother had filed a statement setting out the changes she said that she had made in her life, her desire to have the children rehabilitated to her care, emphasising her considerable concern for LW and her wish for him to live with her.

[14] The Guardian was not at court having sustained an injury of some sort, but was available on the telephone.

[15] All parties anticipated that the matter would be dealt with by way of a directions hearing which would provide for an early IRH and which would record on the face of the order, that the IRH may well be treated as a final hearing. For the mother her expectation that the matter was to be dealt with by way of directions was of fundamental importance to her, providing as it was for the local authority to fund hair strand drug testing of her to confirm (or otherwise), her alleged cocaine use, there having previously been inconsistent results as between a hair strand test and her routine urine tests. The results would inform a decision as to whether further consideration would be given to the rehabilitation of LW to her.

[16] The local authority had filed interim care plans in relation to each child in preparation for the hearing. The plans were already significantly out of date; for example LW’s plan, whilst dated on the front sheet 3 July 2014, had in fact been signed off on 14 February 2014. LW had been through at least two further placements since the foster placement identified in the interim care plan as a long term placement. The plan failed to recognise the current thinking about a possible placement of LW with his mother saying that the mother would “take no role in the day to day care” of LW. The judge could not have been other than misled by the content of these plans when carrying out his pre-reading for the hearing; unfortunately however, his determination to conclude the proceedings without more ado prevented any misconception he may have been under from being adequately corrected by any of the parties during the course of the hearing.

[17] The position was more straight forward for ES and AW as they seemed to be settled with their grandparents. The plan for them was that in the event of favourable special guardianship assessments, a special guardianship order would be made by consent and there would have be no necessity for a care order ever to be made.

[18] A transcript of the hearing in front of the judge has been made available; it reveals that within a matter of minutes, the judge had made abundantly clear, in trenchant terms, his determination to conclude the case there and then by making final care orders. The judge was fortified in his approach, he told the parties, by the fact that the previous week (30 July 2014), an application for permission to appeal in relation to another final care order he had made at the CMH in a different case had been refused by McFarlane LJ : Re H (Children) Case No: B4/2014/2033.

[19] The judge was scathing of the Guardian’s report and her reasons for requesting further information, saying that “advice about the practice direction that came in on 31st July” (a reference to the new Bundles Direction), would signal the end to what he referred to as “this sort of Victorian detail”.

[20] In relation to LW’s situation he said that whilst he wished LW “every good luck in the world but the Children Act and the court has nothing to do with it”.

[21] All the parties crumbled under the judge’s caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews).

[22] At one stage the judge referred to the mother as looking “upset and bewildered”. It is hard to see how she could have looked otherwise given the course the proceedings were taking.

[23] The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children. The Family Justice Reforms and the Public Law Outline

[24] A key feature of the family justice reforms now found in the CA 1989 as amended and FPR 2010 Part 12 and Practice Direction 12A, has been the use by the courts “vigorous and robust case management” as a tool for ensuring that, wherever possible, delay is minimised and the statutory 26 week requirement found at s 32 CA 1989, is achieved. It is undoubtedly the case that, as a result of the reforms, there has been a significant change in culture, driven through by dedicated judges and specialist counsel and solicitors up and down the country. Many care cases are now concluded at either the IRH or well within 26 weeks, to the considerable benefit of the children involved. The Liverpool area has been notable in its successful implementation of the reforms and its early achievement of the routine disposal of care cases within 26 weeks.

[25] Part of the way in which effective case management is achieved is by virtue of the judge allocated to the case retaining considerable flexibility in the manner in which he manages the particular case before him; FPR 2010; PD 12A has at Para 2, “Flexible powers of the court” Provision is made for :

i) steps which ordinarily take place at various stages in the proceedings, to be taken at another step. (PD 12A para 2.2);

ii) the paragraph anticipates cases in which the IRH will be the final hearing (PD12Apara 2.3)

iii) for oral evidence to be heard at CMH or IRH although PD 12A, para 2.3 specifies that the court must be notified in advance of such an intention and directions sought for the conduct of the hearing at which it is intended evidence will be heard, (PD 12A para 2.5), thereby ensuring that no party can be caught unawares.

[26] So far as CMHs are concerned PD 12A para 2.6 provides: “It is expected that full case management will take place at the CMH. It follows that the parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 of the Public Law Outline. A FCMH should only be directed where necessary and must not be regarded as a routine step in proceedings.”

[27] The CMH then is precisely that and to that end a number of matters are prescribed for consideration at the CMH within the PLO: Stage 2,these include:

(i) Drawing up a timetable for the child.

(ii) Identifying any additional parties and interveners.

(iii) Identifying key issues.

(iv) Identifying evidence necessary to enable the court to resolve key issues.

(v) Deciding whether there is a real issue about the threshold.

(vi) Determine any application under Part 25 (experts).

(vii) Identifying additional disclosure. (viii) Giving directions for any proposed placement order proceedings.

[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.

Care Plans

[30] It is accepted by all parties that the court must be alert to the danger of trespassing upon the province of the local authorities with regard to the making and implementing of care plans. With effect from 22 April 2014 the prohibition which had hitherto prevented the court from making a care order without considering a care plan has been repealed. The new section s 31 CA 1989. provides as follows:

“(1) Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.

(2) While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.




(6) A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.

[31] Underpinning the drafting of a care plan is a range of regulations and authority; for example the care plan must accord with the Care Planning, Placement and Case Review (England) Regulations 2010 (Part IV), which regulations are supported by four sets of statutory guidance.

[32] In the present case the local authority had not yet filed a “section 31A” plan, only the misleading and out of date interim care plans. The local authority cannot however be criticised for the absence of certain other information which would be required under the regulations in a “section 31A care plan” such as the identification of the Independent Reviewing Officer.

[33] Once a “section 31A plan” is filed, the provisions for the scrutiny of the plan by the court hearing the case is now expressed in terms of “requirements” and are found in section 31(3A) CH 1989 and section 31(3B) CA 1989:

"Care plans 31(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).

31(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).”

[34] It can be seen that a court is “required” to consider permanence plans but, save as to contact (s34(11) CA 1989), it is “not required” to consider the remainder of the care plan. The fact that the court is “not required” to consider certain other aspects of the plan does not mean it is prohibited from doing so; one can imagine any number of situations where a particular child’s individual identified needs will mean that the court, whilst not seeking to trespass on the exercise of parental responsibility of the local authority, forms the view that the child’s welfare necessitates the court satisfying itself in relation to certain important aspects of the care plan not found within the permanence provisions themselves.

[35] In addition, Miss Burnell, on behalf of the Guardian, rightly draws the court’s attention to the provision in section 31(3B), which provides a definition of “permanence provisions” which, includes: “s31(3B)(a) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family”

[36] This subsection, Miss Burnell submits, should be read disjunctively, it is not sufficient she argues for a care plan simply to refer to a “family/friend placement”; the precise placement anticipated must be indentified and adequate information about the placement provided to allow proper consideration by the court. Miss Burnell reminds the court that it is not uncommon for the focus of a welfare hearing to be upon which of two possible family/friend placements is the appropriate placement for the child in question; it cannot have been intended that the court should be excluded from hearing evidence in relation to the various options within that class of potential carers.

[37] I accept Miss Burnell’s submission. Where a care plan anticipates that a child will live permanently with a family or friend, the identity and sufficient information about that family member or friend must be before the court. Without such information the court will be unable properly to consider the proposed permanency provisions. Such an approach chimes with the position, as it has been for many years, in relation to the treatment of long term foster placements where, if it is intended that a child is to remain in a long term foster placement, the care plan must contain a description of the placement and of the foster carers to be provided by a social worker who knows the foster carers in question. Re J (Minors) Care: Care Plan) [1994] 1 FLR 253.


[38] The judge relied on McFarlane LJ’s written reasons for refusing Permission to Appeal in Re H (Children) Case No: B4/2014/2033 as justification for the course he adopted. In that case McFarlane LJ said:

“In circumstances where it is accepted that the only outcome of the proceedings would be the making of a full care order and the only issue was one of timing and process, the case management decision of the judge to press ahead and make the final hearing at the first hearing was entirely reasonable”

Two things should be noted in relation to the use to which Re H was put by the judge:

i) reasons for giving or refusing permission to appeal are not binding on the courts and should not be used as precedents (see Practice Direction 9 April 2001 paragraph 6.2 [2001] 1 WLR 1001)

ii) in this case, far from there being acceptance of the outcome and/or the only issue being as “timing and process,” the mother did not agree to the care plan in relation to any of the three children; the Guardian was not in a position to express a view and the local authority had not filed a “section 31A” care plan without which the court is not in a position to scrutinise the permanency plans.

[39] In Re B [1994] 2 FLR 1 Butler Sloss P considered the circumstances in which courts could make final orders in a number of different situations without a full hearing. In this context a number of her observations are still of value (page 5):

“…Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence. …The considerations which should weigh with the court include:

(1) whether there is sufficient evidence upon which to make the relevant decision;

(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

(3) whether the opportunity of cross-examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

(4) the welfare of the child and the effect of further litigation – whether the delay in itself will be so detrimental to the child's well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, and particularly D;

(5) the prospects of success of the applicant or a full trial;

(6) does the justice of the case require a full investigation with oral evidence?"

[40] The considerations listed by Butler Sloss P were directed towards a contact application but have a resonance in care cases and it may be exceptionally that, if all parties consent, or there is otherwise a clear case for it, then a court will make final orders at a CMH but, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate. Generally the very nature of the hearing and its description as found in the PLO militates against such an outcome not least because:

i) It is listed within days of proceedings being issued, often solicitors will only just have become involved and had only limited time to take instructions it follows that the evidence to be relied on by the parents at a full trial is unlikely to be available, even in outline;

ii) The Guardian is unlikely to have read more than the Checklist documents served with the application and may well not have seen the decision making records which are only disclosed on request; further, unless he or she have been involved with the family in relation to other children he or she is unlikely to have seen the parties or the children, a significant omission particularly where, as here, there are older children who have lived with a parent for many years;

iii) A “section 31A” CA 1989 care plan will not, in all likelihood, be available.

[41] It follows that whilst one can conceive of cases where a final order will be made at the case management hearing,(the application for permission to appeal of Re J referred to above was one such case), in reality it is likely that such a course will be appropriate only occasionally and in any event:

i) Where there remains any significant issue as to threshold, assessment, further assessment or placement, it will not be appropriate to dispose of the case at CMH.

ii) It can never be appropriate to dispose of the case where the children’s guardian has not at least had an opportunity of seeing the child or children in question and to prepare to a case analysis in which he/she considers the section 31A care plan of the local authority.

iii) Where, unusually a case is to be disposed of at CMH, adequate notice must be given to the representatives of the parents and Guardian; reluctance on their part will ordinarily be fatal to the proposed course. Having said that, where all that is required is for the parties to have a little more time or for the local authority to prepare a section 31A care plan one can envisage cases where the matter is adjourned for a further CMH with the intention that final orders will be made at the adjourned hearing., Another example where in exceptional circumstances it may be appropriate to make final orders at the CMH could be where, the outcome is inevitable and the child’s need for an immediate resolution to the proceedings is critical to his or her welfare.

iv) A care order should not be made without some reasons or a judgment no matter how concise. It is not enough to proceed on the basis that the reasons for making a care order, and still more a placement order, can be distilled from the transcript of discussion between the judge and the parties at court. Whilst appreciating the ever increasing burden on family court judges in the preparing and giving of judgments there must at least be a short judgment/reasons noting the available options, the positions of the parties and confirming that the outcome for the child is in his or her best interests and is proportionate and therefore Convention compliant.


[42] All parties agree that this is a case where the judge, in his desire to embrace and put into effect the family justice reforms, has unilaterally disposed of a case prematurely in circumstances where such a summary disposal was not only unfair to the mother but contrary to the interests of the children with whom he was concerned. It follows that for the reasons outlined above I would allow the appeal and remit the matter to HHJ de Haas.

Lord Justice Lewison:

[43] It has long been a fundamental principle of English law that justice must not only be done, but must be seen to be done. Where a judge has apparently made up his mind before hearing argument or evidence that principle has undoubtedly been breached. A closed mind is incompatible with the administration of justice. But in such cases it is always possible that justice itself has not been done either. As Lord Neuberger MR recently put it in Labrouche v Frey [2012] EWCA Civ 881 at [24]:

“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.”

[44] Longer ago in John v Rees [1970] Ch 345, 402 Megarry J said:

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

[45] Moreover 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.

[46] Parties are also entitled to know why judges make the decisions that they do. This necessarily entails giving reasons for decision, not merely announcing conclusions. The reasons may be brief but they must be explanatory. Justice will not be done if it is not apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16].

[47] In both civil and family cases the Court of Appeal has said on more than one occasion that it will uphold robust but fair case management decisions by first instance judges: Cherney v Deripaska [2012] EWCA Civ 1235 at [17], [30]; Re TG (a child) (care proceedings: biomechanical engineering evidence) [2013] EWCA Civ 5, [2013] 1 FCR 229 at [35], [36]. Both adjectives are important. Robustness cannot trump fairness.

[48] Family cases, however inquisitorial and streamlined they may be, are not exempt from these basic principles. As the President put it in Re TG at [37]:

“The task of the case-management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention).”

[49] It was for these reasons, as well as those given by the President and Eleanor King LJ, that I joined in the decision to allow the appeal.

Sir James Munby, President of the Family Division:

[50] I agree so completely with the judgments of my Lady and my Lord that there is little I need to add. However there are a few points which I wish to emphasise.

[51] My Lord has drawn attention to the famous words of Lord Hewart CJ in R v Sussex Justices [1924] 1 KB 256, 259. In the present case it is unhappily all too apparent that no dispassionate observer of the proceedings or reader of the transcript could think that justice was done, let alone that it was seen to be done. It was not.

[52] Vigorous and robust case management has a vital role to play in all family cases, but as rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to “deal with cases justly, having regard to any welfare issues involved”. So, as my Lord has emphasised, robustness cannot trump fairness.

[53] In the context of case management, fairness has two aspects: first, the case management hearing itself must be conducted fairly; secondly, as I observed in the passage in Re TG to which my Lord has referred, the task of the case management judge is to arrange a trial that is fair. Here, there was a failure in both respects.

[54] We are all familiar with the aphorism that ‘justice delayed is justice denied’. But justice can equally be denied if inappropriately accelerated. An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, para 40, “Justice must never be sacrificed upon the altar of speed.”

[55] Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG, 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. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard: see Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, paras 28-29. As I observed (para 55):

“The fact, if fact it be, that the circumstances are such as to justify intervention by the State, … does not absolve the State of its duty nonetheless to act fairly. It is not enough for the State to make a fair decision: the State must itself act fairly in the way in which it goes about arriving at its decision.”

A parent who wishes to give evidence in answer to a local authority’s care application must surely be permitted to do so.

[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.

[58] I stress the word important. I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to 'testing the evidence' or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.

[59] Quite apart from the fundamentally important points of principle which are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing cross-examination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:

“Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel.”

[60] I agree with my Lady that there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate. Re H, to which my Lady has referred, was such a case, but the particular and unusual facts which there justified a summary process need to be borne in mind. Re H is not and must not be treated as justification for any general principle, let alone for proceeding as the judge did in the present case.

[61] Quite apart from the fact that such a ruthlessly truncated process as the judge adopted here was fundamentally unprincipled and unfair, it also prevented both the children’s guardian and the court doing what the law demanded of them in terms of complying with the requirements of the Children Act 1989 and PD 12A. I agree with my Lady’s analysis, in particular in relation to care plans and the meaning and effect of the various provisions in sections 31 and 31A of the Act to which she has referred.

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