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Shelly Glaister-Young appeared on behalf of the Guardian in O (Care Proceedings) [2024] EWCA Civ 696 (20 June 2024)

Shelly Glaister-Young appeared on behalf of the Guardian in O (Care Proceedings) [2024] EWCA Civ 696 (20 June 2024)

This appeal concerned whether the judge’s decision at a case management hearing to exclude a mother as a future carer was unjust because of procedural irregularity.

Child O

O was aged ten months. He had three older siblings who were already the subject of full care orders due to longstanding concerns of domestic abuse in the parents’ relationship and the children’s exposure to it.

During those proceedings, parenting assessments and a pre-birth assessment in respect of O had concluded that despite the mother’s love for her children, she had not accepted that she needed to make changes or that she required support. In addition, the mother was recorded as a vulnerable person because she was a victim of abuse and had difficulty understanding complicated matters and maintaining concentration. She had been supported by an intermediary.

Care proceedings in respect of O started immediately after his birth. He was placed in foster care with supervised contact with the mother and the local authority applied for a placement order.

The judge’s decision

In February 2024, the final hearing was adjourned part-heard to assess members of the father’s extended family (the As) as potential carers of O. At that point, oral evidence had been heard from the local authority, but not from the parents or guardian. The mother’s application for a further assessment by an independent social worker or in a residential unit was refused on the grounds that the previous assessments had been fair and thorough and there was no reason to think that a further assessment would result in a different conclusion. However, the order made following the hearing included a direction for the local authority to file an assessment of the mother to live with and be supported by family members. Ultimately, that support did not materialise and the proposal came to nothing.

In April 2024, the matter returned to court for a further case management hearing to consider an interim care plan to place O with the As. In the order made following the hearing, the judge stated in a recital that “the Court observed that the realistic options for O are placement with the As or adoption”.

Appeal

The mother appealed on the ground that it had been procedurally unfair to exclude her as a realistic option to care for O during a case management hearing in circumstances where:

  1. the court had only heard oral evidence from the local authority and not from the mother or guardian;
  2. the April hearing was listed for one hour during which the court had to deal with other significant issues which did not expressly include whether the mother was a realistic option to care for O;
  3. the parties had not been aware that the judge was contemplating the mother’s exclusion; and
  4. the mother was a vulnerable party that had not been afforded the opportunity to instruct her legal team on such an important issue or make any representations or submissions about the issue either before or after the decision.

Decision

The appeal was unanimously allowed and the judge’s order was amended to delete the recital. The matter was relisted before another judge for an urgent case management hearing.

Reasoning

Baker LJ noted that it had been open to the judge, as part of her case management powers, to seek to narrow the issues by giving due notice to the parties that she was considering excluding the mother as a future carer and inviting them to make submissions. However, judges must be “appropriately cautious” when taking such a course to ensure procedural fairness. Although the court in care proceedings was not confined to the case advanced by the parties, it must ensure that any different findings made were securely founded in the evidence and that the fairness of the fact-finding process was not compromised. The obligation to take all steps to ensure a fair procedure was even more acute when the party who would be adversely influenced by the decision had vulnerabilities of the sort suffered by the mother. Regrettably, the course adopted by the Judge “fell well short of what was required to ensure a fair procedure”.

Commenting on the judge’s error, Baker LJ noted that it was not the first case management hearing in the proceedings. They had been ongoing for eight months and followed on from previous proceedings relating to the older children. The judge had detailed knowledge of O’s background and the mother’s circumstances. She did not purport to make a comprehensive final order. She did, however, make a decision recorded as a recital on the order on her own initiative and without prior notice to the parties, who had arrived at court expecting to participate in a hearing dealing only with procedural aspects of progressing a case towards a final hearing. The mother is facing the removal of her child. On any view, that was unfair. Although she had an opportunity to cross-examine the local authority witnesses, she had not had the chance to give oral evidence nor challenge the guardian. She was entitled to “put her case to the court, however seemingly forlorn”.

Shelly Glaister-Young appeared on behalf of the Guardian.

Case note written by 42BR pupil, Matthew Timm.


27th Jun 2024

Shelly Glaister-Young

Call 2004

Shelly Glaister-Young

Matthew Timm

Call 2021

Matthew Timm

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