M (Children: Applications By Email)

Applications made by email may be accepted and decided without a formal application notice or hearing, but the court must preserve the same standard of procedural fairness. The court must distinguish applications suitable for informal determination from those requiring formal notice, and must distinguish applications that can fairly be decided without a hearing from those requiring one. The default position is a hearing unless the court considers that a hearing would be inappropriate. Agreement between the parties, an obvious order, an unimportant issue, or complete written materials may justify proceeding without a hearing. An application’s informal form does not justify less scrutiny. The judge must ensure that the parties’ positions are known, relevant information is available, and reasons are given where appropriate.

The mother appealed against a Family Court order made on 14 April 2021 by Her Honour Judge Williscroft. The order, made after an email application, discharged an earlier direction requiring a psychological assessment of the mother in care proceedings concerning her four children.

The mother had missed an appointment and had not responded to attempts to arrange another. The Children’s Guardian’s solicitor sought to vacate the assessment direction. The mother’s solicitors opposed the application, referred to the recent death of her mother, and sought a directions hearing. The judge nevertheless granted the application without a hearing and later gave brief reasons.

The appeal concerned whether the order was wrong or unjust because it had been made summarily, without formal notice, a fair opportunity to respond, adequate regard to the mother’s vulnerabilities and circumstances, or sufficient reasons.

Appeal allowed. The order discharging the psychological assessment direction was set aside. The original direction revived with revised dates and a different expert. The court directed that the mother’s assessment should proceed, recording her promise to attend; if she failed without good reason, the order could be discharged.

1. The judge’s decision was procedurally unfair and arbitrary. The application was opposed, was not a consent order, and the court had not heard argument from the parties. It had not considered the mother’s request for a hearing or explained why a hearing was inappropriate, and it gave no adequate reasons.
2. The court had failed to take account of the mother’s cognitive difficulties and exceptional family circumstances. It gave no sound basis for concluding that she would not attend another appointment, and did not explain why an assessment previously considered necessary had become unnecessary. The children’s placement within the family meant that the statutory timetable, although important, was not decisive.
3. Rule 18 of the Family Procedure Rules 2010 permits applications in existing proceedings to be made without an application notice where a rule or practice direction permits it, or where the court dispenses with the requirement. It also permits an application to be dealt with without a hearing where the court considers a hearing inappropriate, or where the parties agree and the court considers that a hearing is unnecessary.
4. Those powers should be used flexibly in the interests of justice and, in family proceedings, the interests of children. A general permission to apply by email does not prevent the court requiring a formal application notice in an individual case. The default position is a hearing. Whatever the form of the application, the same standards of procedural fairness apply. A paper determination must be scrutinised as carefully as an oral hearing, with attention to compliance with the rules and court orders.
5. The court could have referred the matter to the allocated judge, obtained fuller information before deciding whether a hearing was necessary, or listed a short remote hearing. The overall circumstances favoured revising the timetable rather than remitting the issue.

• Court of Appeal (Civil Division) — The mother appealed against the Family Court’s order of 14 April 2021. Permission to appeal was granted by Baker LJ on 7 May 2021. The appeal was allowed, the order was set aside, and the assessment direction was reinstated with revised dates.
• Family Court at Derby — On 14 April 2021, Her Honour Judge Williscroft discharged the earlier direction for a psychological assessment by an order made following email correspondence.