KS v Neath Port Talbot County Borough Council & Ors

In care and placement proceedings, a court must not use a late case-management decision to exclude a realistic relative-care option without analysing the statutory factors, the arguability of the application and the balance between delay and the child’s welfare. A non-party with a distinct case must receive fair notice of the issues and access to relevant evidence sufficient to challenge it. The court must conduct a holistic welfare and proportionality evaluation of all realistic options, including the lifelong effect of severing family relationships and whether adoption is the only option that will do. A superficial or unreasoned exclusion of the relative is procedurally unfair and legally unsustainable.

The local authority obtained care and placement orders for a child aged nearly two and a half after a five-day hearing in Swansea County Court before Mr Recorder Rees. Shortly before the hearing, the paternal grandmother applied to become a party and obtain an expert assessment, proposing to care for the child. Her application was adjourned and later refused. She was allowed to attend and give evidence but lacked party protections, including notice of the issues and access to relevant evidence.

The grandmother appealed, and the mother also sought permission. The central issues were whether the case-management decision fairly and lawfully excluded the grandmother’s care proposal, and whether the judge adequately assessed all care and placement options under the statutory welfare and proportionality framework.

Lord Justice Ryder delivered the leading judgment. Lord Justice Tomlinson and Lady Justice Arden agreed.

1. Late application. The court had to scrutinise the factors in section 10(9) of the Children Act 1989, including the benefits and detriments of the application and whether the proposed case was arguable, in the context of the reasons for lateness, the child’s timetable and the proceedings. The overriding objective and active case-management duties under rules 1 and 1.2 of the Family Procedure Rules 2010 applied, while the proposed expert evidence was governed by Part 25 and the necessity test in rule 25.1.
2. A case-management ruling which has the character of deciding a substantive care option requires careful analysis of the evidence and reasons. The judge failed to analyse the grandmother’s assessment, the strengths and weaknesses of her case, the relationship between her and the child, or the relevant timetable. The decision was therefore plainly wrong and procedurally unfair.
3. If the court intended to reconsider the grandmother’s case after hearing the evidence, it still had to provide basic due process. She needed notice of the issues, access to documents and relevant evidence, and a fair opportunity to challenge that evidence. Her partial participation left her case falling between case management and substantive determination.
4. The substantive decision also required a non-linear, holistic welfare analysis and proportionality evaluation of all care and placement options. The court had to apply the welfare checklists in section 1(3) of the Children Act 1989 and section 1(4) of the Children and Adoption Act 2002, consider the child’s welfare throughout life and the effect of severing family ties, and address whether anything short of adoption would do. The judge did not undertake that comparative analysis or adequately distinguish the statutory requirements. The approach was inconsistent with Re B (A Child) [2012] EWCA Civ 737, Re J (Leave to issue an application for a residence order) [2002] EWCA Civ 1364, Re H-L (A Child) [2013] EWCA Civ 655, Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, Re P (A Child) (Care and Placement: Evidential Basis of Local Authority Case) [2013] EWCA Civ 963, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) [2013] EWCA Civ 1146.
5. The grandmother’s appeal was allowed. The care and placement orders were set aside. The matter was remitted for further assessment and analysis leading to a rehearing before the Family Court in Swansea. No order was made on the mother’s application for permission to appeal.

Procedural history

1. Court of Appeal (Civil Division): On appeal, the grandmother was granted permission and her appeal was allowed. The care and placement orders were set aside and the matter was remitted for further assessment and rehearing: [2014] EWCA Civ 941.
2. Swansea County Court: Mr Recorder Rees made care and placement orders after a five-day hearing. The paternal grandmother’s late application for party status and an expert assessment was adjourned and then refused.