B (Children)

Fairness in care proceedings requires a process that enables the court to evaluate all evidence material to the child’s future welfare.

A judge may use robust case management and form provisional views. The hearing becomes unfair where the judge reaches and announces a concluded view before the opposing case and material evidence have been properly explored.

Assessments of prospective carers must address central welfare issues directly, including their understanding of past harm and ability to protect the child from its recurrence. Where those failures make the process materially unfair, the appellate court may set aside the determination and order a rehearing without deciding that the underlying placement decision was substantively wrong.

The proceedings concerned two children removed from their parents’ care following extensive findings and admissions concerning abusive and inadequate parenting. The local authority sought adoption for the younger child, while the Circuit Judge placed her with the paternal grandmother under an interim child arrangements order and interim supervision order, anticipating a final order.

The judge formed a strongly positive view of the grandmother after her evidence-in-chief and announced that the local authority would obtain no more than a supervision order. The local authority, supported by the children’s guardian, appealed, arguing that the judge’s interventions and early conclusion produced an unfair hearing and prevented a proper welfare assessment. The central issue was whether the process had enabled a fair and thorough evaluation of the child’s best interests.

Lord Justice McFarlane gave the judgment of the court. Lord Justice Moylan and Lady Justice Thirlwall agreed.

1. Appeal allowed. The hearing was not an acceptable process for determining the younger child’s future welfare.
2. The deficiencies began before the hearing. The social worker and guardian had not properly explored the grandmother’s wider family history, despite its potential relevance to her capacity to provide a safe and stable home. Nor had they taken her through the detailed findings and admissions from the fact-finding hearing so that her understanding of the parents’ harmful conduct and her ability to protect the children from its recurrence could be assessed directly.
3. The judge formed his view at an early stage, substantially on the basis of the grandmother’s untested evidence. During cross-examination he intervened in an unnecessarily adversarial manner, criticised the local authority’s case and announced that it would receive no more than a supervision order. This crossed the line between robust case management and prematurely indicating that the judge had closed his mind to the issues. The acceptability of judicial challenge may also depend on whether the subject is a professional party or a vulnerable family member.
4. The ultimate responsibility for the integrity of the process rests with the judge. Nevertheless, advocates for the local authority and guardian had an obligation to ensure that the principal points of their cases were put before the court, even where the judge appeared opposed to them.
5. The judge’s determination was set aside. The welfare issue was remitted for rehearing at first instance, subject to case-management and allocation directions. The court expressly made no finding that the judge’s underlying childcare decision was wrong; the criticism concerned the process by which it had been reached.

1. Court of Appeal (Civil Division) [2017] EWCA Civ 1635: appeal allowed; the determination was set aside and the welfare issue was remitted for rehearing.
2. Family Court at Teesside: on 20 June 2017, His Honour Michael Taylor made an interim child arrangements order placing the younger child with her paternal grandmother under an interim supervision order, with the older child remaining subject to a full care order.