CR v Local Authority and the Guardian

At a split fact-finding hearing in care proceedings, the judge must decide the statutory threshold and make findings capable of informing later assessments. The judge must not determine the ultimate welfare outcome before the assessment evidence has been obtained and tested.

Fair process may require an independent social work or risk assessment where it supplies evidence necessary to a parent’s case and available assessments do not fill that evidential gap. Although a part-heard care case should ordinarily remain with the fact-finding judge, it should be transferred where the perception of fairness is materially compromised. A final welfare hearing should ordinarily await a related criminal trial where its outcome is likely to provide material evidence and no powerful countervailing consideration exists.

In care proceedings concerning R, the county court had found that he had suffered serious non-accidental injuries while in his parents’ care. Neither parent could be excluded as a possible perpetrator. The mother had separated from the father and sought permission to obtain an independent risk assessment of her capacity safely to parent R.

Her Honour Judge Katharine Marshall refused that application on 1 April 2009. The judge had indicated at the end of the earlier fact-finding judgment that the proceedings should be concluded with minimum delay, later fixed the final hearing before the parents’ criminal trial, and appeared to treat adoption outside the family as inevitable.

The mother appealed. The central issues were whether refusal of the assessment was procedurally fair, whether the final welfare hearing should be heard by another judge, and whether it should await the related criminal proceedings.

1. Appeal allowed. Wall LJ, with whom Waller and Ward LJJ agreed, held that the refusal of an independent assessment was plainly wrong. The order was set aside, permission was granted for Resolutions to assess the mother, the listed final hearing was vacated, and the final hearing was directed to take place before a different judge after the criminal trial.

2. A split hearing requires rigorous intellectual discipline. At the fact-finding stage the judge’s function was to determine whether the threshold criteria under Children Act 1989 section 31 were met and to make findings on which subsequent assessments could be based. It was not the judge’s function to decide the ultimate welfare outcome. The judge’s direction to conclude the proceedings with minimum delay, and her subsequent case management, showed that she had prejudged adoption and thereby curtailed the mother’s opportunity to present relevant welfare evidence.

3. The local authority’s parenting assessment did not cure the unfairness. It had been undertaken without the benefit of the findings and was not relied on by the local authority. The guardian’s opinion could not fill the resulting evidential gap. The judge had wrongly distinguished [2007] EWCA Civ 556 and [2007] EWCA (Civ) 697 on fairness and due process. Competent social work assessment is an essential component of the exercise of judicial discretion where it is needed to appraise a proposed carer.

4. The ordinary rule, recognised in [2008] UKHL 35, is that a care case should continue before the judge who made the factual findings. An exception was required here. The mother had objectively justifiable grounds to lack confidence in the judge’s impartial consideration of the welfare issue. The perception of fairness therefore required a different judge.

5. The criminal proceedings should, absent powerful contrary considerations, precede the final care hearing. Their outcome and the evidence they might produce were likely materially to inform the welfare decision, particularly because the father had not given oral evidence in the care proceedings. The resulting delay was purposeful and justified.

• Court of Appeal (Civil Division): Allowed the mother’s appeal in [2009] EWCA Civ 1008. It set aside the refusal of an independent assessment, vacated the final hearing, directed that it follow the criminal trial, and required a different judge to hear it.

• Portsmouth County Court: Her Honour Judge Katharine Marshall refused the mother permission to obtain an independent risk assessment on 1 April 2009.