R-B (A Child)

In public law children proceedings, robust case management cannot override procedural fairness. A final care or placement order should not ordinarily be made at a case-management hearing where a significant issue remains and a parent seeks to put forward a case, however weak it may appear. A judge must not communicate a concluded view before hearing the evidence or use such a view to pressure a vulnerable parent into changing position. If a final order is made, the judgment must analyse the realistic options, the parties’ positions, the child’s welfare and proportionality; reasons cannot be reconstructed from earlier exchanges. Non-consensual adoption requires the court to be satisfied that no other course is possible, with the burden remaining on the local authority.

This was an appeal by S, a 16-year-old mother with borderline learning difficulties, against care and placement orders made for her infant son J by HHJ Black in the Portsmouth Family Court on 28 September 2018. The orders were made at an issues resolution hearing after S, who had initially opposed the local authority’s plan, changed her position to neither oppose nor consent following judicial comments and a discussion with counsel.

The Court of Appeal considered the lawfulness of the decision-making process, including alleged undue pressure, the absence of a contested final hearing and the adequacy of the reasons. By the time of the appeal J had been placed with prospective adopters. The central issue was whether final orders could lawfully be made in those circumstances without a fair hearing and a properly reasoned welfare evaluation.

1. Disposition. The appeal was allowed. The applications for care and placement orders were to be reheard by another judge. The appeal concerned the lawfulness of the process, rather than the merits of the welfare decision.
2. Under section 31 of the Children Act 1989, the threshold criteria had to be satisfied before a care order could be made. That was undisputed. Once the threshold was crossed, the court had to apply the welfare provisions of the Children Act 1989 and the Adoption and Children Act 2002. Proper evidence was required addressing all realistic options, with analysis for and against each, followed by a comprehensive welfare evaluation. The importance of these requirements was reflected in Re B-S [2013] EWCA Civ 1146 and Re B [2013] UKSC 37.
3. Robust case management was essential, but could not trump fairness. Following Re S-W [2015] EWCA Civ 27, a final order at a case-management hearing was appropriate only occasionally and was inappropriate where a significant issue remained. A parent facing removal had to be allowed to put forward their case, however weak it might appear.
4. The judge had conveyed a firm conclusion that the mother could not care for the child before any contested final hearing. In the circumstances, particularly given the mother’s age and cognitive limitations, directing counsel to discuss that conclusion with her imposed undue pressure. Her change of position resulted from those comments and could not properly justify disposing of the proceedings.
5. Alternatively, the judge’s reasons were inadequate. The short judgment contained no analysis of the available options, welfare, proportionality or the parties’ positions, and could not be supplemented by earlier courtroom discussions. The guidance in Re B-S and Re S-W required a properly reasoned judgment. The rationale in Re G [2013] EWCA CIV 965 reinforced the need to avoid formulaic references to the draconian nature of adoption. Reliance on the dicta in Piglowska v Piglowski [1999] 1 WLR 1360 could not cure the deficiencies.
6. In passing, the court confirmed that the burden remained throughout on the local authority and that a placement order could be made only if no other course was possible in the child’s welfare. The rehearing might produce the same outcome, but only after due process.

• Court of Appeal (Civil Division) — In [2019] EWCA Civ 1560, the appeal was allowed and the applications for care and placement orders were directed to be reheard by another judge.
• Portsmouth Family Court — On 28 September 2018, HHJ Black made care and placement orders at an issues resolution hearing.