J (Children), Re

Final care orders may be made at an issues resolution hearing in an appropriate case, but only where the necessary evidence is available and the procedure remains fair and proportionate. A contested final determination without consent is exceptional. The court must not convert a procedural hearing into a final hearing without prior notice, or treat disputed and untested evidence as established. The Children’s Guardian must have a proper opportunity to assess the children’s interests and prepare the required case analysis. The guardian’s agreement does not determine the outcome. Article 6 and Article 8 rights apply throughout the process, and procedural unfairness may invalidate the decision even where the eventual substantive outcome appears likely to be the same.

The mother appealed against final care orders made by His Honour Judge Tolson QC concerning three of her sons. The orders were made at an adjourned issues resolution hearing rather than after a fully contested final hearing. One child was separately represented and also had permission to appeal.

Earlier directions had approved a multidisciplinary assessment by the Anna Freud Centre, including a psychiatric assessment of the mother, which had been described as essential to determining the case. The assessment was not completed. The judge required the mother to give evidence about her engagement with it, then considered whether final care orders should be made. The Children’s Guardian had not filed a final case analysis, had not given oral evidence, and the evidence relied upon by the judge remained disputed and untested. The central issue was whether the procedure adopted was fair and permissible at an issues resolution hearing.

1. Appeal allowed. The court accepted that robust case management is necessary and that the Public Law Outline permits final determination of applications under section 31 of the Children Act 1989 at an issues resolution hearing in an appropriate case, provided the necessary evidence is before the court. Family proceedings lie on a spectrum of procedure. The procedure must be proportionate to the issues and satisfy the overriding objective of a just and fair determination. There is no absolute right to cross-examine every witness or pursue a fishing expedition: N (A Child) [2012] EWCA Civ 1563.
2. Final disposal at a case management hearing without concession or consent is permissible only exceptionally, in unusual circumstances and on rare occasions: Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136. A court must not, on its own initiative and without prior notice, treat a procedural hearing as a final hearing. Nor may it determine disputed threshold and care-plan issues as though the evidence had been established. The parties must have a fair opportunity to challenge material evidence and put the essence of their case to important witnesses.
3. The Children’s Guardian has a pivotal role in public law proceedings. The absence of an updated case analysis and effective legal representation for two of the children was a serious procedural defect. The statutory and procedural safeguards in section 41(1) of the Children Act 1989, rule 16.3(1) of the Family Procedure Rules 2010, and Practice Directions 12A and 16A required proper consideration of the children’s interests. The Guardian’s acquiescence was not determinative; the ultimate decision remained that of the court and the Guardian’s reasoning was open to challenge.
4. The question whether the mother should re-engage with the assessment was distinct from whether a contested final hearing was required. It was reasonable to examine her initial resistance, but there was no fresh information or change of circumstances justifying the judge’s departure from the earlier direction that the assessment was necessary.
5. The process failed to secure the mother’s Article 6 right to a fair hearing and the children’s procedural and substantive Article 8 rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The defect undermined the integrity of the decision regardless of the likelihood that the children would ultimately remain out of the mother’s care.

1. Court of Appeal (Civil Division): The appeal was allowed on 15 February 2017, with reasons delivered subsequently. The court held that the procedure adopted at the issues resolution hearing was unfair.
2. Central Family Court: His Honour Judge Tolson QC made final care orders for the three children at an adjourned issues resolution hearing on 16 May 2016, without a fully contested final hearing.
3. Earlier directions: District Judge Arbuthnot made interim care orders on 6 November 2015 and directed a multidisciplinary assessment on 24 November 2015. The assessment was not completed before the final orders were made.