B - A (Children), Re

In care proceedings, a late application by a relative for party status must be dealt with through a process that remains fair and permits meaningful participation in any properly arguable case about placement or contact. A judge may preserve an established hearing where the application is still embryonic, the proposed representative is not ready to participate meaningfully, and no adjournment is sought. That does not justify excluding the relative once the application has been formulated. The judge must devise a practical method of participation, particularly where adverse evidence is relied on and the relative advances a realistic alternative placement or substantial contact case. The need to avoid delay and protect children’s welfare must be balanced with the applicant’s entitlement to a fair trial.

The local authority sought care orders for three children. It proposed that the two older children should live outside the family and that the youngest child should be cared for by his paternal grandmother in Ghana. The maternal grandmother had previously cared for the older children and, after becoming aware of an adverse viability assessment, sought party status and an independent assessment. Her application was made shortly before the fixed hearing and was initially unready for meaningful participation.

Her application was ultimately refused by Her Honour Judge Caroline Wright on 27 September 2011. The grandmother appealed, contending that she had been denied a fair opportunity to challenge adverse evidence and to advance cases concerning the youngest child’s care and contact with the older children.

1. Disposition. Lord Justice Thorpe delivered the principal judgment. Lord Justice Kitchin and Mr Justice Mann agreed. The appeal was allowed and the matter was remitted.
2. Initial case management. The judge was right to try to preserve the long-standing fixture. At the opening of the hearing, the grandmother’s application was embryonic, her legal team could not yet formulate or investigate it properly, and no adjournment was sought. Proceeding at that stage was therefore justified by the need to avoid further delay and prejudice to the children.
3. Fairness at the later stage. Once the application had been developed, the judge had to devise a method by which the grandmother could participate meaningfully. The process was unfair because she was excluded from presenting a potentially valuable case that the youngest child should remain in the jurisdiction, with enhanced sibling contact, and from advancing a substantial case for contact with the older children. The local authority had given insufficient consideration to that contact case, while adverse evidence concerning her capacity and delay had been received without a proper opportunity for her to test it.
4. Scope of the error. The court indicated that, if the issue had concerned only the grandmother’s suitability as primary carer for the older children, it would not have criticised the judge’s conclusion. The broader care and contact issues made fuller participation necessary. Mr Justice Mann added that the procedural error occurred when the judge failed, at the later stage, to find a way of bringing the grandmother back into the trial.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1643, the appeal was allowed and the matter was remitted.
2. Principal Registry of the Family Division: Her Honour Judge Caroline Wright refused the maternal grandmother’s application for party status on 27 September 2011.