B (A Child), Re

Family courts may adopt a robust, interventionist and pragmatic approach. Procedural formalities applicable to conventional civil litigation need not always be followed. That flexibility has limits. A court should not make an early substantive residence determination unless it has sufficient material and has conducted a fair process in which the parties, particularly those opposing the proposed order, have had a proper opportunity to be heard. This applies even where the judge has strong and well-informed instincts about the child’s welfare. Parental status does not itself determine a residence dispute. An interim residence order made without adequate evidence and argument, especially where it changes the child’s home, may be set aside and the issue directed to a properly prepared hearing.

A young mother and the maternal grandmother each applied for a residence order concerning the child, who had lived with both of them in the grandmother’s home. At a short interim hearing listed principally to address contact, the county court made a conditional residence order in favour of the mother once suitable supported accommodation became available.

The grandmother appealed, arguing that the order had been made prematurely, without proper evidence or argument, and contrary to the proposed social work assessment. The central issue was whether the judge had acted within the permissible flexibility of family proceedings when making an immediate substantive residence decision at that hearing.

The appeal was allowed. Hughes LJ gave the principal judgment, with which McFarlane LJ and Thorpe LJ agreed.

1. Family judges have a broad discretion over the manner in which children proceedings are conducted. A robust and interventionist approach may be appropriate, and formalities used in conventional civil litigation are not invariably required.
2. That procedural flexibility is subject to fairness and evidential sufficiency. The court must have the material necessary to determine the issue and must conduct a fair process in which all parties, especially those likely to oppose the proposed order, have been heard. The pressure of busy lists and the judge’s experience do not remove those requirements.
3. The judge had not made the distinct legal error of treating the mother’s status as a parent as giving her rights which governed the residence decision. The decisions in Re G [2006] UKHL 43, 2 FLR 629 and Re B [2009] UKSC 5, [2010] 1 FLR 551 were therefore not misunderstood. The difficulty was procedural and evidential.
4. The residence order was nevertheless made too quickly. There was no proper written evidence, the grandmother had not had a real opportunity to argue against the order, and the judge had overridden the social worker’s proposed 12-week assessment without a considered recommendation. The hearing had been arranged to deal with interim contact, and the order involved moving the child’s home. The approach was contrary to the limitation on procedural latitude illustrated by Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289.
5. The residence order was discharged. The District Judge’s holding order of 7 March remained in force. The proposed hearing on 16 May was retained, with a direction for a Section 37 report expanded to include a Section 7 report addressing residence and contact. Interim contact arrangements were made, and the court emphasised the importance, if possible, of preserving the mother’s supported accommodation until the next hearing.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 632, allowed the grandmother’s appeal and set aside the conditional residence order.
• Cambridge County Court: HHJ Plumstead made a conditional residence order in favour of the mother at an interim hearing principally listed to address contact.
• Cambridge County Court: On 7 March, a District Judge made a short holding order that the child should remain with the grandmother pending a prompt hearing.