Lord Justice Lewison, Lord Justice Bean and Lord Justice Baker from the Civil Division of The Court of Appeal sat to hear ”the appeal of O” (Care Proceedings) from the Family Court at Worthing on 20th June 2024.

In the appeal the Appellant – the mother – was represented by Westgate Chambers’ John Hatton (instructed by Brighton and Hove Law).

The subject of the proceedings was ‘O’, a ten month old boy with three older siblings aged 10, 9 and 7 years.

There had been longstanding concerns about domestic abuse in the parents’ relationship and it was feared the children had all been exposed to this abuse. In 2022, the local authority, Brighton and Hove, started care proceedings in respect of the three elder children during which parenting assessments were carried out.

In early 2023, the mother disclosed that she was pregnant. The local authority carried out a pre-birth assessment that concluded that the mother did not accept that she needed to make changes to her living arrangements or seek additional support.

The proceedings relating to the elder children were heard in July 2023.  When this hearing concluded on the 19th July 2023, HH Judge Earley stated the mother was a vulnerable person because she claimed she has been a victim of abuse and said she found it difficult to maintain concentration and understand complicated matters.  As a result she had to be supported by an intermediary.

At this time, the judge made a number of findings:

  1. The mother had been subjected to coercive, controlling and abusive behaviour perpetrated by the father.
  2. The three children had suffered significant emotional harm by growing up in a home where there had been domestic abuse.
  3. The mother had failed to protect the children from emotional harm despite attempts by professionals to work with her to keep them safe.
  4. In November 2022, the eldest child had been assaulted by the father.
  5. The mother subsequently accused the child of lying about that incident and put pressure on him to change his account, thereby causing him further emotional harm.
  6. The mother confirmed she had separated from the father.

The judge observed:

“I am clear that they need to maintain that separation, as the findings that I have made evidences that their relationship is unhealthy and volatile. That relationship has caused harm to [the three children] and the unborn baby.”

Following the judgment, the three children were made subject to full care orders and placed into care in their extended family and any future contact with their parents would have to be supervised.

O was born on 6 August 2023 and care proceedings were started immediately leading to O being placed into foster care as soon as he was discharged from hospital.

Meanwhile, O’s mother suggested a number of people to become the baby’s full time carer but following an assessment, the local authority found none were suitable.  As a result, the local authority proposed that O should be placed for adoption and issued an application for a placement order under s.21 of the Adoption and Children Act 2002.

The matter was listed for a final hearing for three days in February 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 the hearing should be adjourned for a full assessment.

At the same hearing, the mother applied for a further assessment to be undertaken by an independent social worker or in a residential unit.

This assessment discovered that although the mother had spent some time in a refuge, she had not made any effort to confront her domestic abuse or keep herself and her child safe.  It also found the father had not undertaken any work on domestic abuse either.  Critically, it was also found that the mother had moved back in with the father even though she denied they were in a relationship.

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 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.

The order made following the hearing included various case management directions to facilitate the assessment of Mr and Mrs A while the mother and O move in with another couple from within their extended family.  This assessment was positive so on the 17th April 2024, the matter returned to court so that the local authority’s amended interim care plan to place O with the As for a period of further assessment could be considered.  All parties approved this although the local authority proposed there should also be a 10-week suspension in the mother’s contact. Although the mother objected to this, it was endorsed by the judge.

In the order made following the hearing, the final hearing was listed for the 21st  August 2024.  This order also included a number of recitals, including the one that led to this appeal:

“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.”

On 24 April, the mother’s representatives filed a notice of appeal against the provision in the order that said the mother was not a “realistic option” to care for her son. This was appealed on the basis that it was procedurally unfair for the judge to rule the mother wasn’t a realistic option to care for her child and permission to appeal was granted on 23 May 2024.

In his submissions, Mr John Hatton accepted the court could rule out a parent as a future carer for a child at a hearing prior to the final hearing of care proceedings citing Black J in North Yorkshire County Council v B [2008] 1 FLR 1645.  However, Mr Hatton felt the fact the judge had ruled the mother out as option before she had given evidence at the final hearing, constituted a serious procedural irregularity, particularly as without her evidence, the court did not have what they needed to make a proper evaluation.

Ms Hancock was acting on behalf of the father, who up to this point has had no contact with O.  In her submissions Ms Hancock adopted a “neutral position” citing the decision of this Court in Re S-W (Children) (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27 which she maintained provided support for the appellant’s position.

During the appeal the judge considered the precedents set by several relevant cases – Re J (Care Plan for Adoption) [2024] EWCA Civ 265, Re B (Care Proceedings: Appeal) [2013] UKSC 33, Re G (A Child) [2013] EWCA Civ 965, Re B-S (Children) [2013] EWCA Civ 1146, and Re R (A Child) [2014] EWCA Civ 1625.

Perhaps the most relevant was Re S-W in which the court allowed an unopposed appeal by a mother against care orders made at the first case management hearing three weeks after the proceedings began. The members of this court were highly critical of this action with Lord Justice Lewison stating:

“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. 

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.”

While the errors made by the judge in Re S-W were admittedly markedly different to the O’s case, it was felt the judge had made her decision on her own initiative and without prior notice to those expecting to give evidence.  This was considered unfair.

In addition, the guardian’s statement that the court had ruled out the option of either parent caring for O in the future was wrong.  The February order had requested the local authority to file an assessment of the offer by a named couple within the extended family to support the mother in caring for O.  This remained a remote possibility.

It was also important to note that the final hearing was part heard with the mother yet to give evidence which meant there was no fair basis for the judge to rule out the mother.  Also, in both judgments, she referred to there being no gap in the evidence whereas the fact the hearing was part heard and the mother hadn’t had a chance to give evidence must constitute a gap in evidence.

As a result, the judge in the appeal found in the mother’s favour:

“In my view the judge’s decision recorded in the recital to the order made following the case management hearing on 17 April to exclude the mother as a future carer for the child was a procedural irregularity which was sufficiently serious to lead to injustice. I would allow the appeal and amend the order of 17 April by deleting recital 5.

Although in every other respect the judge’s management of this case has been entirely appropriate, justice requires that the proceedings now be transferred to another judge. If my Lords agree, I would therefore direct that the proceedings be listed before the designated family judge for an urgent case management hearing. I hope very much that he will be able to arrange for the final hearing on 21 August 2024 to remain in the list and be heard by a different judge or recorder.

Lord Justice Bean and Lord Justice Lewison both agreed with their colleague’s findings.

A full summary of the case and decisions can be found here.