O (Care Proceedings), Re

In care proceedings, a court may hold an early North Yorkshire hearing and exclude a parent as a future carer where the evidence shows that the parent is not a realistic option. The step requires appropriate caution and procedural fairness. The court must give notice that exclusion is under consideration and allow a fair opportunity to provide evidence, instructions and submissions. Where a final hearing has been adjourned part-heard before a parent has given oral evidence, that evidence may represent a narrow but material gap. A vulnerable parent must be allowed to put their case. An own-initiative decision excluding the mother without notice or representations was sufficiently unfair to cause injustice.

O, aged ten months, was the subject of care proceedings in the Family Court at Worthing. The proceedings followed earlier care proceedings concerning his three older siblings, in which the judge had made findings concerning domestic abuse and the mother’s failure to protect the children.

At a February 2024 hearing, the judge refused the mother’s application for a further assessment but directed an assessment of relatives who might support her care of O. By April, that proposal had fallen away. The judge approved placement of O with other relatives but also recorded that the realistic options were placement with them or adoption, thereby excluding the mother as a future carer.

The mother appealed. She had not been given notice that exclusion was under consideration, had not made submissions on the issue, and had not yet given oral evidence or challenged the guardian. The issue was whether the procedural irregularity made the decision unjust.

1. Disposition. The appeal was allowed. Recital 5 of the order dated 17 April 2024 was deleted. The proceedings were directed to be transferred to another judge and listed urgently before the designated family judge, with the hope that the final hearing listed for 21 August 2024 could remain in the list.
2. Early exclusion of a parent. A North Yorkshire hearing remains permissible as a case-management step before the final hearing where the evidence shows that a parent is not a realistic option for care. The circumstances in which such a hearing is appropriate are less common following Re B, Re G and Re B-S. The court must exercise appropriate caution, particularly when considering excluding both parents, and should hear oral evidence where appropriate. See North Yorkshire County Council v B [2008] 1 FLR 1645, Re J [2024] EWCA Civ 265 and Re R [2014] EWCA Civ 1625.
3. Procedural fairness. The judge must give due notice that exclusion is being considered and invite submissions. Although the court is not confined to the parties’ cases, findings must be securely founded in the evidence and the fairness of the fact-finding process must be preserved. The obligation is especially important where the affected party is vulnerable and requires an intermediary. Re S-W [2015] EWCA Civ 27 confirmed that robust case management must not become unfair summary disposal and that a parent facing removal must be able to put the case and challenge important evidence.
4. Application. The April hearing was listed for case-management purposes. The mother had not been told that the judge might exclude her, had not made representations on the issue, had not given oral evidence and had not challenged the guardian. The February order had not ruled out every family-support option. Since the final hearing was part-heard, the absence of the mother’s oral evidence remained a narrow but material evidential gap. The decision therefore amounted to a procedural irregularity sufficiently serious to cause injustice. The principle that a party must have a fair opportunity to make the case orally was also supported by Labrouche v Frey [2012] EWCA Civ 881; [2012] 1 WLR 3169.

• Court of Appeal (Civil Division). Appeal allowed against the Family Court’s recital excluding the mother as a realistic option. The recital was deleted and the proceedings were transferred to another judge.
• Family Court at Worthing. HH Judge Earley made the challenged recital at a case-management hearing on 17 April 2024, after approving placement of O with relatives and before the adjourned final hearing.