N (A Child)

A family court may make final orders at an issues resolution hearing in an appropriate case. The procedure must, however, be proportionate to the unresolved issues and must determine the proceedings justly and fairly.

Where the court is considering the permanent removal of a child for adoption, it must afford the parents a fair opportunity to present evidence, make representations and challenge the local authority’s case. A failure to comply with case-management directions does not, without a fair examination of the available procedural options, justify immediate care and placement orders.

The mother appealed against final care and placement for adoption orders made at an issues resolution hearing in care proceedings concerning her son. The parents had not filed their final evidence by the directed date. Their solicitor nevertheless attended with instructions and was ready to prepare statements.

Without hearing substantive representations from the parents or permitting their evidence to be filed, the county court concluded that the threshold criteria were satisfied and that further delay was contrary to the child’s welfare. The local authority and the child’s solicitor accepted on appeal that the procedure had been impermissibly robust.

The central issue was whether the immediate making of final orders at the issues resolution hearing was compatible with the applicable procedural rules and the parents’ right to a fair hearing.

1. The appeal was allowed. The care order and placement for adoption order were set aside. The proceedings were directed to be relisted before Baker J for a fresh issues resolution hearing: per McFarlane LJ, Hallett LJ agreeing.

2. A family court may make final orders at an issues resolution hearing in an appropriate case. Practice Direction 12A contemplates that possibility. The permissible procedure nevertheless lies on a spectrum and must be proportionate to the unresolved issues and the circumstances of the particular case. The procedural spectrum described in Re B (Minors: Contact) [1994] 2 FLR 1 remained a good and helpful description of the court’s approach.

3. Paragraphs 16.4 and 16.5 of Practice Direction 12A require an issues resolution hearing to identify the issues that remain disputed, explore whether they can be agreed and consider the most proportionate method of resolving them. Ordinarily, unresolved key issues will be determined at a final hearing where relevant oral evidence can be heard and challenged.

4. The overriding objective and article 6 of the European Convention on Human Rights require care proceedings to be determined justly and fairly. The procedural boundary between permissible case management and unfair determination varies with the facts and the proportionality of the chosen course. The gravity of the proposed orders is material. Permanent removal through adoption lies at the most draconian end of the family court’s powers.

5. The county court crossed that boundary. It made final orders without hearing substantive representations from the parents, allowing their final evidence to be prepared, or affording them an opportunity to challenge the local authority’s case. Available alternatives included a short adjournment with a final warning, refinement of the disputed issues, an abbreviated final hearing, or at least oral representations on whether final orders should be made. The parents’ procedural default did not make the adopted course fair.

• Court of Appeal (Civil Division): The appeal was allowed. The care and placement for adoption orders were set aside, and the proceedings were relisted before Baker J for a fresh issues resolution hearing.
• Swindon County Court: HHJ Marshall made final care and placement for adoption orders at an issues resolution hearing on 15 June 2012.