![CA-2025-001731 - [2025] EWCA Civ 1342](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
The IRH
The IRH
The IRH was listed for 24 June 2025. One week earlier, an advocates meeting had been held in purported compliance with Stage 3 of the Public Law Outline (‘PLO’). It is unlikely that this meeting was productive; the mother’s advocate was without instructions, the father’s advocate was not present (a scheduling mishap), and the final analysis of the Children’s Guardian was not available. Following the advocates meeting, the local authority filed its position statement with the court in readiness for the IRH; in that document, counsel indicated that the local authority “would have liked” the court to conclude the proceedings at the IRH in respect of the boys, but accepted that “a final hearing is required”. The draft case management order, filed with the court and circulated to all parties in compliance with PLO, supported by a draft witness template, contemplated a listed contested final hearing in relation to Y and N on a date to be fixed.
The trial bundle was lodged prior to the IRH; among the recently filed documents were the final care plans. The care plan for N provided for him to be placed with his paternal grandmother and her partner for his long term future, however (as I have indicated above) this was expressed to be:
“… subject to satisfactory work being undertaken by the couple around sexual risk by the Edge of Care (EOC) team following the Lucy Faithful programme. It is proposed that the EOC team complete this work by 8 July 2025 with an addendum Special guardianship assessment being completed on the 29 July 2025 in order to evaluate the effectiveness of the work completed and make final recommendations”.
Notably, the care plan further provided that:
“In the event that [the paternal grandmother] and [her partner] are not deemed suitable to care for [N], the Local Authority are parallel planning including a plan of adoption which will be considered as an alternative final care plan for [N], subject to [Agency Decision Maker’s] approval”.
The care plan for Y was that he should be placed in the long term with paternal grandmother’s partner’s daughter, and her partner. In the event that this placement were to break down, the care plan for Y also provided for a parallel plan of adoption. The Children’s Guardian did not feel able to lend her full support to this long-term family placement under the aegis of special guardianship orders in the absence of the DBS check.
The IRH was listed for one hour. It lasted 45 minutes. The judge heard argument from counsel. No party suggested that the judge should hear any evidence, and none was called. The position of the parties at that hearing was as follows:
The local authority had changed its stance since filing its position statement; at the hearing it argued that the proceedings in relation to all three boys should conclude at the IRH with the making of final care orders. In respect of Y and N, it was proposed that their placements with family members (as outlined above), should be confirmed, initially under Regulation 24 of the Care Planning, Placement and Case Review Regulations 2010 (temporary approval of connected persons), as a prelude to the family carers becoming special guardians under section 14A CA 1989; the local authority proposed a significant reduction of contact between the children, and between the parents and all of the children;
The father opposed the making of care orders in respect of Y and N; he disagreed with the plans to place them with extended family; he sought to resume care for them himself. He also sought to challenge the proposed contact arrangements. He asked the court to list a final hearing so that these matters could be determined after a contested hearing on oral evidence;
The mother did not seek to care for any of the children but opposed the local authority’s care plans in respect of them; she supported placement of Y and N with the father. The judge later recorded in her judgment that the mother “… contests the plan in respect of contact. In essence her position is that that contact is not sufficient to preserve a meaningful relationship between herself and her three children”. She too sought an opportunity to test the local authority’s plans.
The Children’s Guardian supported the Local Authority’s care plans and invited the court to make final orders there and then.
Following submissions, the judge gave a short ex tempore judgment, of which we have the transcript. The judge opened with a brief summary of the position of the parties. Of the father’s aspiration to care for Y and N, she said:
“… he very much wishes to care for [N] and [Y] himself and indeed there was a time when they transitioned into his care” (emphasis by underlining added).
In the same vein, she later said:
“The children, [N] and [Y], moved to his care on 21st September 2024. That placement ended in December 2024; it was short-lived” (emphasis by underlining added).
Later she referred to the “short-lived reunification” of the boys with their father. I shall return to this later, but (as will be apparent from §7 above) these remarks represented a material misunderstanding of the history of N’s care.
The judge alluded to the father’s history of alcohol misuse, and his assertion that by the time of the IRH “he has started on a road to recovery”. She added that:
“… he says he is engaging with services (although there is no evidence of that by way of exhibits to his statement) and he says he is on a positive trajectory.”
The words in brackets suggest that the judge was sceptical about the father’s assertions. She went on to describe the father’s use of alcohol over a prolonged period of time as “the central feature” in the case; this issue, she said, went to the issue of future risk. Later in the judgment she returned to this issue:
“He tells me with some pride in his statement that he has been free of any drink, of alcohol, since March of this year, the longest time in the period of two years, relapses in February 2025. He says he is engaging with services and he says he is on a positive trajectory and will be able at a future point in time to care for his children. What the professional evidence highlights is the significant feature of alcohol in his life and the impact of risk of relapse and consequently the impact on a child in his care. These children deserve a decision to be made now”.
The judge referenced the fact that a previous case management order had made clear that unless the parents filed a response to the statement of proposed ‘threshold criteria’ (under section 31(2) CA 1989) the formulation of threshold facts prepared by the local authority would be approved by the court (on the written evidence) as drafted. She said, “this is not a threshold case”, by which I understand her to mean that there could be no real issue that the test under section 31(2) CA 1989 was satisfied.
In the course of her judgment, she made two passing references to the “welfare checklist”, but did not identify or address any of its constituent elements with regard to either Y or N.
The essence of the judge’s decisions is contained in the three concluding paragraphs of the judgment:
“[15] Of course I understand that [the father] and [the mother] love these children very much indeed but these are children who cannot simply be left waiting to see if [the father] can do it. When I say “do it” I mean can he sustain change which the papers show is change only recent and I refer again to relapses admitted by [the father], February 2025, a short time ago and him saying no drink since March 2025 and that is against a significant background of alcohol misuse.
[16] It seems to me that these children deserve a final decision now and that there is sufficient evidence to make that final decision now. I make final care orders in respect of both [N] and [Y]. I endorse the care plan in respect of contact. The Local Authority have a duty to keep those arrangements under review. The order is both necessary and proportionate to secure the welfare of each of these children who deserve to have a settled life; to know where they are. Even at their respective ages they will know that they have had moves around during their lifetime and they have an overwhelming need for permanency. That is what this order is intended to achieve. More likely than not applications for special guardianship will follow.
[17] In making my decision I have considered the Article 8 rights of those concerned. The orders are necessary and proportionate to secure the welfare of these children. I have considered whether to list the matter for a final hearing. In my judgment there is more than sufficient evidence to enable me to make a final decision now, having listened to each of the advocates in turn and having read the court bundle which now extends to 1784 pages” (emphasis by underlining added).
Following the judgment, Mr Sullivan, counsel for the father, sought permission to appeal, referencing in particular (a) the judge’s lack of consideration of the elements of the welfare checklist, and (b) a failure to address the Article 6 ECHR issues given the judge’s rejection of the parent’s wish to test aspects of the evidence. The judge ruled on that application as follows:
“I refuse permission to appeal. I specifically referenced in my judgment the welfare checklist. I have mentioned more than once the dynamic feature which is alcohol misuse on the part of the father, an extensive history around that, the short-lived reunification, the admitted relapses in February. So far as Article 6 is concerned I have mentioned Article 8 [sic] more than once and I have mentioned welfare was my paramount consideration. I have also referred specifically to the wealth of the expert evidence. I have read, as I hope I have illustrated, the father’s statement and I have given what I think is a holistic approach to these proceedings, in train in excess of 100 weeks. These three children who have been in them, their reunification has been tested; it has failed. Permission refused”.