C - L (Children), Re

Judges may express preliminary views during case management, but must not create an impression that the outcome is predetermined, particularly before reading the papers fully or hearing the parties. Robust case management is subordinate to justice and fairness.

Delay in care proceedings is an important consideration, but it does not automatically justify refusing a further assessment. Planned and purposeful delay may be acceptable where the assessment has potential welfare value and can be completed within an acceptable timetable. Permission for a relative to pursue a residence-order application or assessment may be made conditional on the process causing no delay to the proceedings.

The local authority brought care proceedings concerning two children who had been living with foster carers. At an issues review appointment, HHJ Case refused the paternal grandmother permission to apply for a residence order and refused the parents’ request for a joint assessment and the grandmother’s request for assessment by the same independent social worker.

The judge had not read all the papers and expressed a strong preliminary view that placement orders were required. The local authority did not resist the appeal. The Court of Appeal considered whether the hearing had been unfair and whether further assessments should be permitted despite the resulting delay.

Disposition. The Court of Appeal allowed the appeal and granted the relevant applications. Ward LJ gave the judgment, and Etherton LJ agreed.

1. The judge at the issues review stage was entitled to form and express a preliminary view. However, she had not fully read the papers or heard the parties and expressed herself in terms that conveyed a concluded view about placement orders. That went beyond proper case management and created an impression that the hearing was unfairly conducted.
2. Although the case required robust management because of the delay, robust case management remained subordinate to the interests of justice and fairness in the hearing.
3. The parents had shown sufficient recent improvement to justify giving them an opportunity to demonstrate that the change was durable. The local authority had not established that a further assessment would have no benefit. The additional delay could be accommodated within an acceptable timescale and was therefore planned and purposeful rather than impermissible. Permission was granted for a further assessment of the parents as a couple, subject to an expedited report, to be completed by 16 December at the latest and, if possible, by 9 December.
4. The grandmother was given leave to apply for a residence order. She was also permitted to be assessed, but only on the clear condition that difficulties concerning her assessment must not delay the proceedings. If she could not make herself available or meet the cost of the assessment, she would have to abandon that application and the case would proceed on the evidence available.
5. The grandmother’s application for permission was directed to stand as her application for a residence order. The parents and grandmother were given permission for the further assessments, subject to their being conducted expeditiously.

• Court of Appeal (Civil Division) — On appeal from the Warrington County Court, the appeal was allowed and permission was granted for the residence-order application and the specified further assessments: [2011] EWCA Civ 1441.
• Warrington County Court — HHJ Case’s orders of 26 August 2011 refused the grandmother permission to apply for a residence order and refused the parents’ and grandmother’s assessment requests.