M (Children), Re

A court may finally determine an application to discharge care orders at a directions or case-management hearing where the case is suitable for summary disposal and the evidence permits a fair welfare evaluation. Children’s wishes and feelings must be assessed with sufficient care and context. The court should obtain properly tested evidence from each child where their views are material; it should not infer an older child’s wishes from a sibling’s account. Apparent wishes may be complex, and their strength, context and capacity to change may require further information, including relevant contact records. A perceived risk that continuing proceedings will cause delay or uncertainty does not justify immediate dismissal without evidence of particular harm. The evidence required remains fact-sensitive.

The parents of three boys appealed from the Central Family Court, where His Honour Judge Brasse had, on 2 April 2015, dismissed their application to discharge care orders made in October 2008. The application also concerned contact, disclosure of records and permission for an independent parenting assessment.

The judge treated the children’s stated wishes to remain in their foster placements as determinative and concluded that the application could not succeed. The appeal concerned whether a case-management hearing could properly be treated as a final hearing on the limited and incomplete evidence available, particularly concerning the children’s wishes, the parents’ current circumstances and the effect of delay.

Appeal allowed unanimously. Lady Justice Black gave the principal judgment, with which Lady Justice King and Sir David Keene agreed. The decision of His Honour Judge Brasse was set aside and the matter was returned to the stage it had reached before 2 April 2015.

1. Summary disposal. The parents did not dispute that family proceedings could be brought to a final conclusion at a directions hearing in an appropriate case. The question was whether this was such a case. The judge had dismissed the application principally, and effectively entirely, on the basis of the children’s wishes, while acknowledging that evidence might show that the parents’ capacity had improved.
2. Assessment of the children’s views. The evidence was incomplete. The guardian and children’s solicitor had not spoken to the oldest child, R, and it was unsafe to infer his wishes from his younger brother’s account, particularly given his age. The guardian and solicitor also needed an opportunity to explore the views of all three children. SK’s autistic traits might make the evaluation of his wishes less straightforward. The parents’ account of a contact visit, the undisclosed contact notes and the children’s apparent wish for more contact could all be relevant.
3. Context and welfare. The circumstances in which the children were questioned, what they precisely said, the strength of their feelings and the possibility that their views might change were material to the welfare assessment under the Children Act 1989, section 1(3). The possibility of an attritional effect from delay did not justify immediate dismissal because there was no evidence of particular harm unless the proceedings ended at once.
4. Further evidence. The proper course was to give directions for further evidence. In this case that might include a social worker’s statement, a guardian’s report and detailed statements from the parents, but the court was not prescribing those materials for every case.

• Court of Appeal (Civil Division) — [2015] EWCA Civ 994: allowed the appeal, set aside the dismissal and returned the matter to the position before the decision of 2 April 2015.
• Central Family Court — on 2 April 2015, His Honour Judge Brasse dismissed the parents’ application to discharge the care orders at a case-management hearing.