L (Children), Re

Where prospective special guardians are directly affected by a contact decision, procedural fairness requires that they have a fair opportunity to hear and address the evidence before the decision is made. A court should not hear material evidence on contact in their absence and then attempt to cure the defect after giving a firm indication of the outcome. A consent order made as a pragmatic response to that situation does not prevent an appeal. The defective contact order should be set aside and the issue determined afresh by a different tribunal.

Care proceedings concerning three children were heard before Mr Recorder Ferris at Swansea. The children were living with an uncle and aunt who were prospective special guardians. The Recorder refused to join them as parties to the care proceedings and they were absent from the main hearing.

During that hearing, evidence was given about contact between the children and their mother. The Recorder indicated that contact should be substantially higher than the local authority and Guardian had proposed. The prospective special guardians then pragmatically consented to a final special guardianship order and a contact order providing for 14 visits annually. They appealed, arguing that the contact issue had been determined without a fair hearing. Permission was granted on the Article 6 issue. Permission concerning their exclusion from the primary hearing was not renewed.

1. Appeal allowed. The order regulating contact was set aside. The contact issue was remitted for re-determination by a different Circuit Judge in the Swansea area.
2. The Recorder’s ruling excluding the prospective special guardians had addressed the hearing as one concerned principally with threshold and fact-finding. However, the hearing also received evidence from the social worker, the children’s Guardian and the mother on contact, and the judgment gave a firm indication of the appropriate level of contact.
3. The prospective special guardians were directly affected by the contact decision. It was crucial that they should hear and respond to the evidence about contact. The process adopted deprived them of that opportunity and therefore did not constitute a fair hearing under Article 6.
4. By the time the Recorder indicated his decision, the hearing had substantially concluded. The process could not fairly be repaired by a later hearing. The continuation of twice-weekly interim contact was also inappropriate in circumstances where the long-term placement decision had effectively been made.
5. The prospective special guardians’ consent to the final order was a pragmatic response to the difficult position created by the procedural history. They were not bound by the description of the resulting order as a consent order.
6. The contact issue was to be reconsidered with a clean sheet. The previous order was not to operate as the status quo.

• Court of Appeal (Civil Division): Appeal allowed on the fair-hearing issue. The contact order was set aside and the issue remitted to a different Circuit Judge.
• Swansea Civil and Family Justice Centre: Mr Recorder Ferris made a final special guardianship order and ordered contact at 14 visits per year after the prospective special guardians pragmatically consented during the hearing.