RE v North Yorkshire County Council & Ors

Declarations relieving a local authority from statutory consultation duties require the High Court’s inherent jurisdiction and cannot be made by a Family Court judge who is not sitting as a High Court judge. Even where jurisdiction exists, such relief is justified only in exceptional circumstances and must be proportionate to the child’s welfare and the parent’s participation rights.

An Issues Resolution Hearing may be used as a final hearing where the issues can fairly and proportionately be resolved. Robust case management must remain consistent with procedural fairness, adequate evidence and the avoidance of harmful delay.

The appeal arose from final orders made by HHJ Finnerty at an Issues Resolution Hearing in care proceedings concerning A. The orders included a care order, permission under section 34(4) of the Children Act 1989 to refuse contact, declarations releasing the local authority from consulting the father, and injunctions mirroring a Crown Court restraining order.

The father challenged the making of final orders at the Issues Resolution Hearing, the jurisdictional basis for the declarations, and the proportionality of excluding him from consultation and review. By the appeal hearing, arrangements for indirect contact and the local authority’s statutory obligations had largely been agreed. The central issues were whether the declarations were lawful and whether the remaining protective injunctions should stand.

The leading judgment was given by Hayden J, with Lewison LJ and Moore-Bick LJ agreeing. The appeal was allowed to the limited extent that the declarations were discharged; the protective injunctions were maintained and the agreed arrangements for indirect contact were recorded.

1. Jurisdiction and declarations. Declarations releasing a local authority from statutory consultation obligations are made under the High Court’s inherent jurisdiction. The Family Court judge had not been sitting as a section 9 High Court judge, and no proper transfer or authorisation had occurred. The declarations therefore lacked jurisdictional foundation. Rule 12.36(1) of the Family Procedure Rules 2010 and PD12D reflected the requirement for such matters to be dealt with in the High Court. Re B [2013] EWCA Civ 964 supported the need for deliberate compliance with that practice.
2. Exceptional circumstances and proportionality. The consultation and review duties under section 26 of the Children Act 1989 are directory, with non-compliance treated as an irregularity. Nevertheless, absolving a local authority from consulting a parent is appropriate only in exceptional circumstances. The duties protect parental participation, promote the child’s welfare and impose a discipline on the corporate parent. Parental misconduct alone does not justify their removal. The circumstances here were serious but did not meet the exceptional threshold, and less intrusive measures could protect the placement. The court relied on Re P [2000] 2 FLR 910, Re C [2006] 2 FLR 787 and A v Lancashire [2012] EWHC 1689 (Fam).
3. Final orders at an Issues Resolution Hearing. The Family Justice reforms require the court actively to consider whether an Issues Resolution Hearing can be used as a final hearing. This obligation must be balanced against fairness, equal footing, proportionality and Article 6. The relevant assessment includes the sufficiency of the evidence, the likely effect of further evidence or cross-examination, the child’s welfare and the effect of delay, the prospects of success, and whether justice requires a full investigation. The present case was sufficiently narrow and the first-instance judge’s approach was vindicated. Re N [2012] EWCA Civ 1563, Re S-W [2015] EWCA Civ 27 and Re B (Minors (Contact) [1994] 2 FLR 1 were applied.
4. Protective injunctions. The Family Court may make injunctions mirroring criminal restraining orders. They provide an independent family-law protective mechanism focused on child safeguarding. The judge’s short reasoning was adequate in the circumstances, particularly as no objection had been made.

• Court of Appeal (Civil Division) On 17 November 2015, the appeal was allowed to the limited extent of discharging the declarations. The agreed indirect-contact arrangements were recorded and the mirror protective injunctions remained in force.
• York County Court and Family Court On 2 September 2014, HHJ Finnerty made final orders at an Issues Resolution Hearing, including a care order, a section 34(4) contact order, declarations concerning consultation, and a non-molestation order.