G (Children: Fair Hearing), Re

In urgent family proceedings, a judge may indicate a provisional view and encourage settlement, but must not exert unreasonable pressure or appear to have prejudged the case. A parent’s consent or non-opposition to an interim care order must be freely given. Legal representation does not cure oppressive judicial conduct.

Under Children Act 1989, section 38(2), the interim test is whether there are reasonable grounds for believing that the section 31 threshold circumstances exist. It does not require final findings of fact or proof of the threshold to the civil standard. A procedurally unfair hearing requires the order to be set aside and the application reheard.

The local authority issued urgent care proceedings after a dispute between separated parents led to police protection and the foster placement of their two children. At an interim hearing before the Family Court at Sheffield on 24 January 2019, the mother initially opposed the application. The judge indicated that adverse findings were inevitable, warned that the mother would be stuck with them, and referred to possible police and CPS consequences. The mother then consented to, or did not actively oppose, interim care orders.

The mother appealed on grounds including judicial pressure, prejudgment, inadequate time for advice, and failure to apply the interim removal test. By the appeal hearing, the parties agreed that the application should be reheard before a different judge, but disputed whether the original hearing had been unfair. The central issue was whether the mother had received a meaningful and fair opportunity to contest the interim application.

Procedural fairness

1. The appeal succeeded on the procedural ground. The court was concerned with the fairness of the hearing, not the underlying merits. The overriding objective under FPR 2010 requires proceedings to be dealt with justly, expeditiously and fairly. Active case management may include helping parties to settle, but any change of position must be freely made.
2. A judge may express a provisional view, even where it causes a party to reconsider its position. The judge must not exert unreasonable or improper pressure, or appear to have predetermined the outcome. The principle in Re R (Contact: Consent Order) [1995] 1 FLR 123 was applied. Where improper pressure is alleged, the issue may properly be considered on appeal rather than by an application to discharge before the original or a co-ordinate judge.
3. The judge’s repeated assertions that adverse findings were inevitable, that the mother would be stuck with them, and that the matter might be referred to the police and CPS, together with derisive responses to the mother’s proposed case, conveyed that the application had already been decided. The mother’s non-opposition was therefore not freely given. Her legal representation did not cure the unfairness. The hearing involved a serious procedural irregularity.

Interim care orders

Mr Justice Moor explained, with which Lord Justice Peter Jackson agreed, that sections 31 and 38 of the Children Act 1989 serve different purposes. Section 38(2) requires reasonable grounds for believing that the circumstances in section 31(2) exist. It does not require findings of fact to the civil standard or proof of the full threshold at an interim hearing. Courts should therefore be cautious about suggesting that interim conclusions will establish the threshold at final hearing. In an urgent case, a short-term holding order may be made without oral evidence, with evidence for a longer-term order taken later.

Orders

The interim care orders were set aside and replaced by short-term interim care orders pending an early contested hearing before a different judge. The court declined to return the children immediately to the mother’s care and directed that the fresh application be determined without preconceptions arising from the earlier hearing.

• Court of Appeal (Civil Division) [2019] EWCA Civ 126 — allowed the procedural challenge, set aside the interim care orders, and replaced them with short-term interim care orders pending a fresh contested hearing before a different judge.
• Family Court at Sheffield — made interim care orders on 24 January 2019 after the mother did not actively oppose the application following the judge’s comments.