Re S-W (Children)

Robust case management in care proceedings must remain fair. A final care order may be made at a case management hearing by consent or concession. Otherwise, that course is appropriate only exceptionally, in unusual circumstances and on rare occasions.

Summary disposal is inappropriate while a significant issue remains concerning threshold, assessment or placement. The children's guardian must have had an opportunity to see the children and analyse the local authority's care plan. The parties must receive adequate notice.

A parent must be allowed to present the essence of their case and, where material to the outcome, challenge important evidence. Every care order requires at least brief explanatory reasons addressing the available options, the parties' positions, the child's best interests, proportionality and Convention compliance.

The mother appealed against final care orders concerning her three children. The Family Court at Liverpool made the orders at the first case management hearing, less than three weeks after the local authority issued proceedings. The parties had expected directions towards an early issues resolution hearing and had agreed further assessments, testing and inquiries.

The children's guardian had not seen the children or completed her analysis. The local authority had filed only outdated interim care plans, and significant questions remained about placement and possible rehabilitation. The judge nevertheless disposed of the proceedings immediately, without prior notice, oral evidence, a judgment or reasons.

The local authority and guardian did not seek to uphold the orders. The wider issue was whether recent family justice reforms justified such summary disposal consistently with fairness and proper judicial analysis.

1. Appeal allowed and proceedings remitted. The judge disposed of the case prematurely. The procedure was unfair to the mother and contrary to the children's interests. The proceedings were remitted to Her Honour Judge de Haas QC.

2. Per King LJ, robust case management and the statutory 26-week timetable do not authorise unfair summary disposal. A case management hearing ordinarily prepares a care case for determination. Unless the outcome is conceded or agreed, a final order at that hearing will be appropriate only exceptionally, in unusual circumstances and on rare occasions. It is inappropriate where any significant question remains about threshold, assessment, further assessment or placement.

3. The guardian must at least have had an opportunity to see the children and prepare an analysis addressing the local authority's section 31A care plan. The parties must receive adequate notice that final disposal is contemplated. Their reluctance will ordinarily defeat that course. An immediate final order may exceptionally be justified where the outcome is inevitable and immediate resolution is critical to the child's welfare.

4. A care order must be supported by a judgment or reasons, however concise. The court must identify the available options and parties' positions, and explain why the outcome serves the child's best interests, is proportionate and complies with the Convention.

5. Under sections 31(3A) and 31(3B) of the Children Act 1989, the court must consider the permanence provisions of the section 31A plan. Where permanent placement with family or friends is proposed, the intended carer must be identified and sufficient information supplied to permit proper scrutiny. The court is not prohibited from considering other important aspects of the plan where the child's welfare requires it.

6. Lewison LJ held that a court must not convert a procedural hearing into a final hearing without notice. A closed mind is incompatible with justice. Robustness cannot trump fairness, and reasons must explain the result.

7. Sir James Munby P agreed. Fair case management requires both a fairly conducted hearing and arrangements for a fair trial. A parent facing removal of a child must be heard and must be permitted to challenge important evidence affecting the outcome, although there is no absolute right to unlimited cross-examination.

1. Court of Appeal (Civil Division): By [2015] EWCA Civ 27, unanimously allowed the mother's appeal, set aside the final care orders and remitted the proceedings to Her Honour Judge de Haas QC.

2. Family Court at Liverpool: His Honour Judge Dodds made final care orders for all three children at the first case management hearing on 7 August 2014, without prior notice that the case would be finally determined and without giving a judgment or reasons.