Re O (Care Proceedings) [2024] EWCA Civ 696, Baker LJ:
In the case of Re O (Care Proceedings) [2024] EWCA Civ 696, the Court of Appeal addressed significant issues concerning procedural fairness in care proceedings, particularly regarding ruling out the mother as a potential carer for her child, O at a case management hearing.
Background
O, a ten-month-old boy, was born into a family with a history of domestic abuse. His three older siblings had previously been placed under full care orders due to exposure to such abuse. Prior assessments concluded that the mother did not acknowledge the necessity for change or support, despite being identified as a vulnerable individual requiring intermediary assistance.
Following O’s birth in August 2023, the local authority initiated care proceedings, resulting in O’s placement in foster care under an interim care order. During a final hearing in February 2024, potential carers from the father’s extended family were identified, leading to an adjournment for their assessment. The mother’s request for further assessment was denied, as previous evaluations were deemed thorough.
In April 2024, during a case management hearing, the judge ruled out the mother as a realistic option for O’s care, recording this decision in a recital without prior notice to the parties. The mother, a vulnerable party, was not afforded the opportunity to provide instructions to her legal team or make representations regarding this critical issue.
The Court of Appeal Decision
The mother appealed on the grounds of procedural unfairness. The Court of Appeal unanimously allowed the appeal, emphasizing that while judges have broad case management powers, these must be exercised with caution to ensure fairness, especially when dealing with vulnerable individuals. The court highlighted that the mother should have been given the opportunity to present her case and challenge the evidence against her.
The appeal judgment helpfully sets out the leading authorities regarding ruling out hearings being:
In Re J (Care Plan for Adoption) [2024] EWCA Civ 265, the Court of Appeal reaffirmed that conducting a North Yorkshire hearing, as established in North Yorkshire County Council v B [2008] 1 FLR 1645, remains permissible. However, following the Supreme Court’s decision in Re B (Care Proceedings: Appeal) [2013] UKSC 33 and subsequent key cases (Re G [2013] EWCA Civ 965 and Re B-S [2013] EWCA Civ 1146), such hearings should now be approached with greater caution and are expected to be less common. Sir James Munby P in Re R [2014] EWCA Civ 1625 noted that while courts can rule out parents early in proceedings if they are not a realistic option, judges must exercise caution before excluding both parents at an early stage without a final hearing.
The Court also referred to Re S-W (Children) [2015] EWCA Civ 27, where an appeal by a mother against care orders issued at an early case management hearing was allowed. King LJ emphasised that a Case Management Hearing (CMH) should primarily serve as an organisational step, ensuring the case is prepared for resolution — either by consent or a contested hearing — within the statutory 26-week period. Unlike a case management hearing, an Issues Resolution Hearing (IRH) may require full evidence and careful consideration of whether it can conclude the case. The Court warned against overly robust case management resulting in unfair summary disposals, stressing the need for fairness and compliance with Article 6 of the European Convention on Human Rights (right to a fair trial).
In Re S-W, the President underlined that while judges have broad powers to manage evidence under Rule 22.1, those powers must respect two key principles:
1. A parent facing the potential removal of their child must have the opportunity to present their case fully.
2. A parent must be allowed to cross-examine significant witnesses relied upon by the local authority.
In the present case (re O) the Court found procedural irregularity in the judge’s decision to include a recital in the order without prior notice to the parties, particularly the vulnerable mother. Although the mother had cross-examined local authority witnesses at an earlier stage, she had not yet given evidence or cross-examined the Guardian. The Court noted there remained a remote possibility that the mother, through oral evidence, might have demonstrated sufficient changes in her circumstances to care for her child. The appeal was allowed, and the contested recital was deleted from the order due to the procedural unfairness that had led to an injustice.
Implications
This judgment underscores the paramount importance of procedural fairness in care proceedings. It serves as a reminder that decisions significantly affecting the lives of parents and children must be made transparently, with all parties given a fair opportunity to participate and respond and also ensuring that vulnerable parties are granted the opportunity to fully engage in proceedings that determine the future care of their children.
Footnote: 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 advance d 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”.
Tanya Zabihi
January 2025
