CA-2025-001731 - [2025] EWCA Civ 1342

Public law (care and supervision) applications are case managed in the Family Court in accordance with the PLO; this case management template is currently located in PD12A FPR 2010. The IRH is a key step (‘Stage 3’) in the PLO. Preparatory to the IRH, an advocates meeting should be held, at which it is expected that discussions will focus on how best to use the IRH to narrow and/or resolve the issues. In this case, the advocates meeting was largely unproductive for the reasons set out above (§12).

The PLO contemplates that at the IRH the court will:

PD12A FPR 2010, para.2.3 makes clear that:

“… if the issue on which the case turns can with reasonable practicability be crystallised and resolved by taking evidence at an IRH then such a flexible approach must be taken in accordance with the overriding objective and to secure compliance with section 1(2) of the 1989 Act and resolving the proceedings within 26 weeks or the period for the time being specified by the court”.

The role of the IRH in the public law process was considered by this court in Re J (Care Proceedings: Issues Resolution Hearing) (ALC Intervening) [2017] EWCA Civ 398; [2017] 4 WLR 109 (Re J). Paragraphs [17] to [23] of Macur LJ’s judgment (with which the other members of the court, including Sir James Munby P, agreed) repay re-reading in full. Macur LJ highlighted the importance of “robust case management” at the IRH, particularly given the pressures then (as indeed now) on the Family Court. She continued:

“[17] … There can be no doubt that the Public Law Outline (‘PLO’) contemplates the resolution and final determination of applications under s 31 Children Act 1989 at the IRH in appropriate cases, subject implicitly to the necessary evidence being before the court.” (emphasis by italics in the original).

“[18] The determination of what procedure to adopt calls for the exercise of judicial discretion dependent on the circumstances of the case before the judge. It is impossible to formulate a 'one size fits all' policy. This court will be slow to interfere in that exercise of judgment carefully articulated and soundly based. However, the principles of procedural fairness formulated in several recent cases decided by this Court provide clear guidance to the first instance judge in his/her decision of the appropriate and fair procedure to be adopted at various stages in family proceedings”.

….

“[22] It is obvious that Art 6 and 8 ECHR convention rights necessarily will be engaged at every stage of the process. As Pauffley J so aptly characterised in Re NL (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), 'Justice must never be sacrificed upon the altar of speed'.”

Macur LJ went on to quote the following passages from the judgment of Sir James Munby P in Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136 (Re S-W):

“[57] … there is the right to confront one's accusers. So, a parent who wishes to cross examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so.

[58] I stress the word important. I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to 'testing the evidence' or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.

[60].… there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate.”

Further ‘Case Management Guidance’ was issued by Sir Andrew McFarlane P in 2022, aimed at tightening up good practice in public law process, returning to the principles of the PLO; it contains this important paragraph:

“IRHs need to be more effective. At an IRH, it is the judge’s role to encourage all parties to take a realistic approach. Any suggestion of adjournment or  the  filing of further evidence at that stage will only be justified if it is ‘necessary’ to determine the remaining relevant  issues”. 

This guidance draws from earlier published guidance (the ‘Road Ahead’) published during the Covid-19 pandemic in 2020:

“Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.”

In July 2024, Sir Andrew McFarlane P added to this guidance with further remarks in his ‘View from the President’s Chambers’:

“To undertake an IRH, a judge must be given sufficient time to prepare the case as if preparing for the final hearing and the listing should be sufficient to accommodate the hearing of short evidence if required. Not to allocate sufficient preparation and hearing time to the IRH robs the court and the parties of any real opportunity to resolve issues and effectively accepts that the IRH will be no more than a pre-trial review hearing.

No-one who practises or sits in the field of family justice doubts the importance of the points made in §§29-35 above, and of ensuring that every hearing counts in public law litigation; the objective is efficient, informed and timely decision-making in the interests of the subject children. Equally, there is no doubt that in family proceedings the judge is vested with considerable discretion to manage any particular application or hearing within a wide spectrum of procedure. This includes the IRH. Where on that spectrum a particular application should be placed is a matter for the judge’s discretion (see Re B (Minors)(Contact) [1994] 2 FLR 1 per Butler Sloss LJ and Re N (A Child) [2012] EWCA Civ 1563 at [10] and [11]). One of the key considerations as to whether a case is resolved summarily or adjourned for further and/or more detailed enquiry will be “the relevance of the potential result of the investigation to the future care plans for the child” (A County Council v DP, RS, BS (By their Children’s Guardian) [2005] EWHC 1593 (Fam) 2005 2 FLR 1031: [24(f)]).

The dreadful history of delay in this case, already more than four times longer than the statutory 26 week “imperative” (per section 32(1)(a)(i)/(ii) CA 1989, and Sir James Munby P in Re P-S at [60]), demonstrates how significantly the proceedings had spiralled out of control by the time of the IRH. The number of hearings and the voluminous documentary evidence, particularly when taken together with the delay, point to persistently ineffective and unfocused case management; it is not clear to us whether there had been any judicial continuity in the case management, but any lack of continuity may go some way to explain the problems. The case had its share of complexity, but not unusually so. The unpalatable truth is that the delay will have prejudiced the wellbeing of these subject children (see section 1(2) CA 1989).

The judge was plainly concerned at the IRH about the undue delay, and she was right to be so. In her judgment she makes several references to this. It is easy to understand her eagerness to resolve the case at that hearing, and I accept that this was well-intentioned. However, the benefits of robust resolution of public law proceedings at any stage prior to the final hearing (where evidence is tested) must never be at the expense of procedural fairness and justice (rule 1 of the FPR 2010, Article 6 ECHR and Re J at [18], above). In this case, the solution to the procedural disarray of this protracted litigation did not lie, in my judgment, in the summary termination of the proceedings at the IRH in a manner which was procedurally unfair to the respondent parents.

There was a material issue of fact to be tried. The judge had rightly identified that the central issue in the case was future risk (see §17 above). The local authority’s final care plans for the children, filed shortly before the IRH, had been predicated on the factual premise that the parents had not “been able to achieve any positive change to their lifestyles that would support the children returning to either of their care”. However, the father had filed evidence maintaining that he could demonstrate a contrary position, with evidence (including from professionals working with him, and hair strand testing), that he had made significant strides successfully to rehabilitate from his alcohol misuse. The social worker did not, it appears, believe the father, or credit him with any or any claimed progress in his recovery; therein lay a material factual issue which justified determination, the more so since history reveals that the local authority had (a) allowed N and Y to live with the father for a period of time, and had (b) actually supported the father in that regard, when the authority knew of the father’s troubled relationship with drugs and alcohol. It seems to me that the father had a right to challenge the social worker’s view that he had not reformed (he had “the right to confront [his] accusers”, per Sir James Munby P in Re S-W see §32 above), given that if the father was vindicated in his assertion of sobriety this “may have a significant impact on the outcome” (Re S-W ibid);

Secondly, it appears that the local authority had not signalled any prior intention to seek final orders at the IRH; it had, in fact, indicated a contrary position in its position statement (see §12 above). This offers a troubling context for the hearing itself; the parents and their lawyers were entitled to complain that they were taken by surprise by the applicant’s change of stated position. Moreover, in despatching these long-running proceedings at the IRH in no more than 45 minutes, including judgment (which itself gives every indication of being rushed and improvised) there is a real question whether the listing of the hearing had complied with the letter or the spirit of the President’s 2024 guidance (see §35 above). There should always be “sufficient preparation and hearing time” at an IRH, so that the parties are treated justly and fairly, and no-one is denied the opportunity to attempt properly to resolve the issues.

Thirdly, the evidence was incomplete at the IRH; the time for filing the final assessment report on the prospective long-term carers for N had not yet passed (it was not due for filing for one more month). While all other indications were positive, it was not clear what the further court-ordered assessment may show in relation to sexual risk of the grandmother’s partner, and how it may affect the shape of the plans going forward. Moreover, the DBS checks on Y’s prospective carers had not been returned, and this had caused the Children’s Guardian to pause in supporting them as special guardians. The parents were surely entitled to have this information before final orders could be made. Moreover, in view of this lack of certainty in the plans for the boys, the judge needed to address the contingency of adoption for the boys, and explain why it would not be unfair to the parents to proceed to finality notwithstanding the spectre of this radically different long-term outcome.

Fourthly, before making a care order, it was the judge’s duty to “consider the permanence provisions of the section 31A plan for the child concerned” and specifically the issue of contact. Section 31(3A) / (3B) CA 1989 specifically engages section 34(11); this subsection provides that:

“Before making, varying or discharging an order under this section or making a care order with respect to any child the court shall— (a) consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and (b) invite the parties to the proceedings to comment on those arrangements”.

The judgment offers no more than a perfunctory endorsement (para. [16]: see §20 above) of the care plan for contact. The judge did not acknowledge the social work evidence that contact had been “positive family time” for all, nor that the plan provided for significant changes to both the inter-sibling and parental relationships; for example, the father’s contact with Y would reduce from once per week to four times per year and the inter-sibling contact would reduce from three times per week also to four times per year. The judge did not address at all the pros and cons of the plan, and the inevitable impact of the proposed diminution of contact on family relationships, particularly as she was aware (and had recorded) the parents’ opposition to this course.

For these reasons, I am satisfied that the judge was wrong to terminate the proceedings at the IRH. Instead, she could and in my judgment should, within the discretion available to her (see §36 above, the ‘spectrum of procedure’), have used this IRH to give case management directions to progress the application towards a short and focused final hearing at which the issues (and oral evidence) could be limited to:

It makes sense to turn next to consider the points raised on Ground 3.

Where proceedings conclude at an IRH, particularly where the outcome of the proceedings are contested, as here, there is an obligation on the judge to give clear reasons which explain:

It is reasonable that a judgment delivered at the conclusion of an IRH bringing proceedings to an end, even if matters have been contested, is more concise and focused than a judgment delivered at the conclusion of a contested final hearing. After all, there will have been limited, if any, oral evidence to review, and/or any detailed assessment of credibility. However, that does not of itself relieve the judge of the obligation to give proper and clear reasons for the decision in a structured and logical way so that the parties know how the decisions have been reached, even if given ex tempore: “a reasonable structure is essential for disciplined and transparent decision-making … The need for structure is perhaps particularly true of oral (ex tempore) judgments”:Re B (Child: Adequacy of Reasons) [2022] EWCA Civ 407 at [57] and [58].

The judge’s rationale for concluding these proceedings at this contested IRH (see §46(i) above) is contained in two short sections in paragraph [16] and [17] of the judgment, see §20 above (I have underlined the relevant phrases/sentences for identification and emphasis). In short, the judge felt that she had “more than sufficient evidence” on which to make a final decision. However, this did not begin to explain:

In dealing with the substantive orders, the judge specifically referenced the ‘threshold criteria’ (section 31(2) CA 1989) and concluded that they were established in this case in the form presented by the local authority; she reached this outcome by two routes: first, reliant on the evidence pertaining to the risk of past and future harm at the time when the protective measures were taken, and secondly, because the parents had failed to comply with an earlier case management direction (5 March 2025) requiring them to file a document setting out their response to threshold, with a deemed acceptance of the same if they failed to do so. This summary treatment of the threshold criteria was barely adequate (if it was indeed adequate at all: see Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407; [2022] 4 WLR 42), and I have misgivings about the parents having been ‘deemed’ to accept the evidence on account their non-compliance with a procedural step. This was not, however, the focus of this appeal.

I accept Mr Sullivan’s argument that the judgment suffers from a number of incurable flaws in its review of the wider welfare aspects which informed the final orders made. I address these at §§51-52 below.

First, the judge appears materially to have misunderstood the history of the case, and specifically the length of time in which N had been in the care of his father prior to 20 December 2024. Three references in the judgment (see §16 above) suggest that the judge believed that N had lived with his father for only three months in the autumn of 2024. In fact (see §7 above) N had been cared for by his father (as a sole parent) for more than 2½ years (June 2022 – December 2024). This mistake of fact, a material underestimate of N’s experience being cared for by his father, is sufficiently serious on its own as to undermine the judge’s ultimate conclusion, at least insofar as it related to N.

Secondly, while the judge was plainly exercised, and justifiably so, by the appalling delay in resolving this litigation and the likely “prejudice” (section 1(2) CA 1989) to the children as a result, she allowed this issue so to dominate her thinking that all other considerations relevant to welfare were largely, if not completely, ignored. In particular:

My views on Grounds 1 and 3 of the Notice of Appeal are sufficient to dispose of the appeal. I express no concluded view on whether, had all other matters been appropriately addressed, the judge was right to make care orders which were likely, on the local authority plan, only to be short term, though note the similarity between the situation which obtained in this case, and that in Re P-S (see §25 above).