NG23C50181 - [2025] EWHC 810 (Fam)

I will deal first with the welfare issues in the case, and then turn to the case management lessons that should be learnt.

I have no doubt that it is in all the children’s best interests for them to be made subject to care orders and for A to remain with her foster carer, and the younger children to remain with Z.

The M (and R2) are not in a position to care for the children. It is clear that the M loves the children, and that she has a genuine desire to care for them. However, her chaotic lifestyle, with multiple moves both before and since the children were removed from her care, is inimical to meeting their needs. I accept that her current homelessness, and in part at least, her inability to regularly attend contact, are to some degree a result of her lack of money. However, they are also in part a result of choices she has made. She left the refuge and returned to R2 when she had stable accommodation, albeit in a refuge. She appears to have prioritised her relationship with R2 over the interests of the children and over their need for stability and to be away from the risk of being caught in the crossfire of a relationship characterised by domestic abuse.

In respect of contact, she has not informed the social worker well in advance when she cannot attend contact so that A (and Z) can be told when she cannot attend contact. That has led to real distress for A, and doubtless a great deal of inconvenience for Z and the social work team. There is plentiful evidence of the M not being able to prioritise the children’s needs over what she wants to do.

There is also very significant evidence of the level of the impact of domestic abuse on the children. I have watched the videos of at least some of what took place on 19 June 2023 when the children (other than D who was not born) were in the house. This must have been very distressing for them. It included A being taken out of the house and from house to house by the M when she was very distressed.

I have considered the welfare checklist. A has said she wants to return to her M’s care, but she appears to be settled and doing well in foster care. For all the children’s emotional and psychological wellbeing they are currently much better off staying where they are. I also take into account A’s very poor school attendance when in the M’s care.

Overall I have no doubt that the children’s best interests lie in staying in their current placements and not being returned to the care of the M and R2.

It is very important that the children maintain sibling contact. In the short term this will probably be most important for A, who will remember her younger siblings and be thinking about them. But it is also important for the younger children to know A, and understand their broader family.

For all these reasons I will make the orders sought.

In respect of case management, there are a number of lessons to be learnt from the problems that have arisen in this case. Judges and advocates need to keep the duties under the Family Procedure Rules closely in mind. Under FPR r1.2 judges have an obligation to engage in active case management. This includes ensuring that it is dealt with proportionately (r1.2(b)) and that the case only takes an appropriate share of court resources (r1.2(e)). That may require the Judge to be firm with the parties (and lawyers) about how those resources are used. Under FPR rule 1.3 all parties have an obligation to further the overriding objective. The duties set out in r1.2 apply just as much to the parents’ lawyers and to Cafcass Guardians and their solicitors as they do to the judges.

Firstly, the case highlights the great importance of judicial continuity, for proper case management. I appreciate that judicial continuity can be hard to achieve, but here no judge took “ownership” of the case. Wherever possible one judge should be allocated to a case and do whatever of the hearings they can.

Secondly, together with judicial continuity goes the oversight of the Guardian and the Guardian’s solicitor. The Guardian has a critical role in safeguarding the best interests of the children, including doing what s/he can to avoid or minimise delay. The Guardian should have been strongly raising issues such as the M’s failure to file a statement, and the listing of a final hearing when threshold had not been settled. It is essential that if delay is to be avoided, Guardians and the children’s solicitors play an active role in preventing delay.

Thirdly, as HHJ Carter said, this is a case where threshold should either have been agreed or determined at a much earlier date, so that all parties and most importantly the Court should focus on the real issue which was welfare. It was in my view inevitable that threshold was crossed, not least from the content of the videos of the events of 18 June 2023. If the M and R2 would not agree it, then the Court should have determined threshold at an IRH/early final hearing on threshold. The fact that it was allowed to drift meant that the case was listed for far too long (5 days reduced to 4 days) and led to delay and considerable wasted court time.

Fourthly, the matter should not have been set down for a final hearing before an effective IRH. This links to the need to sort out threshold at an earlier date. I appreciate that the aim was to get to the final hearing in February 2025 (relatively) speedily. But the actual result of not having an effective IRH was that the case was listed for a four day final hearing when the parents had not filed their final evidence. This, in my view, allowed the parents to avoid the inevitable conclusion that threshold was crossed and that realistically they could not care for the children.

Fifthly, is the failure by the lawyers to file the relevant documents on the FPL Portal at the proper time which placed a wholly unreasonable burden on the judiciary. I spent much of the day before the hearing (a Sunday) trying to piece together the history from the old documents some of which were on the Portal. No judge should be expected to have to do this in order to be able to ensure an effective hearing. The Portal has been mandated by the President of the Family Division for at least two years, and it is unacceptable for it not to be used properly in all cases.