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

There are three Grounds of Appeal:

In relation to Ground 1, Mr Sullivan does not suggest that the court does not have the power to make a final order at IRH, but argues that on these facts, it was wrong for the judge to do so. He argued that the father had a legitimate case to be tried, namely that he was now abstinent from alcohol and posed no future risk to the boys; Mr Sullivan had pressed upon the judge that the father could now once again resume their care. The father indicated at the IRH, through Mr Sullivan, that he wished to challenge the contrary views of the local authority and the Children’s Guardian. He and the mother contend on this appeal that the proceedings should not have been abruptly ended at the IRH, and that their Article 6 rights were infringed in an attempt to moderate the impact of what was an already long-since passed 26-week target for the completion of the case. While acknowledging the length of the proceedings already, Mr Sullivan argued that justice and fairness to the parents was in this particular hearing and at this stage of the case regrettably “sacrificed upon the altar of speed”. (Re NL (A child) [2014] EWHC 270 (Fam) at [40]: Pauffley J).

The local authority and Children’s Guardian rely on the guidance issued by Sir Andrew McFarlane P (see §§33-35 below) in arguing that the court was right to act robustly in bringing the proceedings to an end at the IRH; it was right for the judge to make this hearing truly “effective”. Mr Hasson argues that it was not necessary for the court to hear any further evidence about the father’s relationship with alcohol and that, given the chronic history, any period of proven abstinence would not in fact make the difference.

On Ground 2, Mr Sullivan has argued before us that the court should have adjourned the proceedings further until it was in a position to consider whether to make Special Guardianship Orders under section 14A CA 1989, and that it was wrong in principle for the court to make ‘short term’ care orders. Mr Sullivan relies on Re P-S (Children)(Care Proceedings: Special Guardianship Orders)[2018] EWCA Civ 1407 at [33] (Re P-S):

“The concept of a short term care order within which the placements could be tested was raised by the judge as a justification for making full care orders. Aside from the welfare merits of the orders, which were not adequately reasoned, the concept of a short term order is flawed. There is no mechanism for a care order to be discharged on the happening of a fixed event or otherwise to be limited in time. The exercise of parental responsibility by a local authority cannot be constrained once a full care order is made other than on public law principles of unlawfulness, unreasonableness and irrationality. The judge should have reflected on the fact that if the local authority did not in due course apply to discharge the care orders themselves it would have been incumbent on the proposed special guardians to do so and to satisfy the test for leave to make that application without the benefit of legal aid, given that in the circumstance of a disagreement with the local authority it would be highly unlikely that the special guardians would be in receipt of funding from them”.

The parents argue that the placement with the special guardians ought to have been tested within the timeframe of the proceedings. The local authority and Children’s Guardian reject the suggestion that the orders made were ‘short term’ and/or that the court was wrong in its approach.

All parties to this appeal realistically accept (Ground 3) the paucity of judicial reasoning in what was acknowledged by all counsel to be a ‘short’ judgment. While Mr Hasson accepted that “the judgment may well have benefited from a greater level of explicit detail”, he and Mr Proctor nonetheless argue that all of the relevant and necessary components of a public law judgment were referenced and by implication included. Mr Sullivan, supported by Ms Hunter, point to several material omissions which expose flaws in the judge’s approach to the decision to conclude the proceedings, and make final orders. They further argue that the judge over-emphasised the impact of delay, given that the plans for the children were not yet ready to be finalised by means of a special guardianship order in any event.