This is a joint post by Paul Magrath and Harriet Humberstone, who last month attended a final hearing before Recorder McAllister in a case listed for three days at the Central Family Court in London. Paul and Harriet are both ‘duly authorised lawyers’ aka legal bloggers under the Family Court rules.
The hearing concerned the welfare arrangements for a two year old girl, whose parents had separated and were living in different households.
The proceedings had been ongoing for almost two years with the final hearing being rescheduled on two occasions. Both parties were represented, but there was evidently sufficient tension between them to justify the placing of a screen down the middle of the courtroom.
Transparency order
Once we entered the court room, the first ‘housekeeping’ matter was, of course, the Transparency Order. Paul had already emailed the clerks with his information including photo ID but to avoid confusion Harriet presented hers in court.
Neither party objected to our presence or the order in principle, which was based on the standard template, but there was some brief discussion about its terms, such as the specific date until which it should remain in force (until the day the child concerned turns 18). Once agreed, the Transparency Order was sent to all parties and we were asked by the judge to confirm we had read and understood its terms. The whole process now feels quite routine and did not take long.
Application for adjournment
Although this final hearing had been adjourned more than once, the mother’s counsel began by asking for a further adjournment in order to permit the calling of a local authority social worker (LASW), or their team manager (since the LASW herself had left the job), in addition to the independent social worker (ISW) who had been commissioned to write a section 7 Welfare Report (under s 7 of the Children Act 1989).
The background context to this was that the local authority had been asked to write a section 7 report but as the father was unhappy with the LASW, an ISW had been appointed to do this. (Although it is usually Cafcass who are directed to write s 7 reports, if the child is already known to children’s services, they will be given the direction.) It was now the mother’s case that to allow the father to call the ISW for this final hearing but to exclude the mother from calling the LASW was both unfair and procedurally wrong. Mother’s counsel argued that another adjournment was necessary to correct this and although the LASW was no longer able to attend court at any point, their manager would be suitable.
By way of further context, the case was now being heard by a different judge from the one who had originally been due to hear it (HHJ Robertson), and who had already considered the question whether the LASW should be called as well as the ISW, and had decided it was not necessary, though she was willing to ‘leave the door ajar’ to call her if necessary once the ISW’s evidence had been heard.
Father’s counsel responded to the application by saying it was disappointing to hear the same submissions as before and that as proceedings had been ongoing for most of the child’s life it was important not to delay any further. Interestingly, there was some discussion about the term ‘expert’ which has been a hot issue within the family courts recently, mainly with regard to unregulated psychologists. Although a LASW is to be treated by the court as having expertise, the appointment of an ISW indicates that the court will give more weight to the court-appointed expert as shown in the decision made by the judge originally presiding over the case. An ISW will be regulated by Social Work England, because ‘social worker’ is a ‘protected title’ unlike ‘psychologist’.
Following submissions from both parties, the judge gave a short judgment in response to the requested adjournment. He said the decision to postpone a final hearing was not one to be taken lightly and the suggestion that the court needed the local authority’s evidence orally to fairly determine the case was not persuasive. In regard to the definition of an ‘expert’ the LASW was not an ‘instructed expert’, which was not to say she might not have relevant evidence. To find another three days to relist the case would cause further delay which at the very best could be weeks if not months. It was neither necessary nor proportionate to do so. For these reasons the application for adjournment would be refused, while preserving the earlier judge’s position of keeping the door ajar for an application to call someone from the local authority should the need arise later in the hearing. (It did not.)
The hearing
As well as the ISW, there was evidence from the father and mother. As the ISW had been scheduled for attendance on the morning of day 2, we began with the father’s evidence in the afternoon of day 1, then concluded with the mother’s evidence in the afternoon of day 2, which continued into day 3, followed by submissions.
Both parents were professional people in their mid 30s although the mother was not currently working. The child had been born prematurely in early 2024 and though the parents had been living together, there were difficulties with their relationship and they had separated later that year.
The child was now living mostly with the father, and attending nursery during the day, but with some regular contact, including overnight stays, with the mother, who was now living with her parents. There were challenges with handovers because their respective households were about an hour and a half’s drive apart.
The local authority had become involved following incidents reported by the father, including concerns about the mother’s drinking and mental health, the nature and extent of which were disputed in their respective evidence. In addition there were anxieties and criticisms expressed on both sides about the other party’s parenting approach.
The ISW had seen the parents and child in early 2025 and prepared first an interim report, then the full s 7 report, dated March 2025, and then an addendum report in July 2025, followed up by an updating later in April 2026. She came across as genuinely independent and fair minded and her recommendations were now for shared care, although she had initially recommended the child live with the father. She felt that any further delay in reaching that goal would be detrimental and that, while no arrangement was risk-free, there was now a greater risk in limiting the child’s time with her mother. The mother had been shown to have made changes, and a joint living-with order would help bring down the temperature and reinforce both parents’ involvement in the child’s life.
Owing to the additional time taken with the initial application for an adjournment, and then the witness evidence running over the estimated time, Recorder McAllister was unable to give his oral judgment at the conclusion of the hearing, and it was listed for judgment, which was still given orally, the following week.
The judgment
In his judgment, Recorder McAllister reviewed the evidence of the ISW and said that it provided a framework that the court could accept which was consistent with the child’s best interests and the welfare checklist (under s 1(3) of the Children Act 1989).
Given the considerable amount of oral evidence from the parents, what findings might he make to push away from that framework? Where matters had been put to a party in evidence, the court was entitled to make findings. But while he was not precluded from making findings of fact in a welfare hearing, he questioned the usefulness of doing so. There were dangers in looking back instead of looking forward, of allegations being weaponised, and the temperature going up and not down.
The mother had pointed to the fact that the father worked during the day and left the child at nursery, so that he wasn’t spending quality time with her. But there was a positive aspect to nursery, in that it meant there was another set of eyes watching the child. The mother had proposed instead that she have the child during the week and the father at weekends, but that would deprive the mother of participation in weekend activities and social events, such as parties, with the child.
In suggesting a joint living with order, the ISW had not been prescriptive as to how the time should be divided but she thought the mother should spend some weekends with the child. If the child was at nursery from 7 am to 4.30 pm, then the father would still have quality time with her from 4.30 to bedtime. That has been her reality to date and was that of many children her age.
On the evidence it was plain that the child had a good relationship with both parents, and that each of them on their own could and did parent the child in a safe and loving way. The difficulties lay in their respective views and perceptions of the continued involvement of the other parent in their child’s life. At a fundamental level, each thought the child would do better if she had more time with them than with the other parent. It was clear from their answers in cross examination that there was an element in each of them of wanting the last word or to win. They were two intelligent professional people whose approach to disputes over parenting might make things difficult to manage. Each parent struggled fully to accept that the other could do a good enough job of caring for the child when with them.
The judge said that, while the mother’s challenges with alcohol and mental health were significant, and should not be overlooked, the father’s case really relied on ‘what ifs’. While his concern was understandable, this did not justify artificially restricting the child’s time with her mother at this stage, where the evidence is of minimal alcohol use, there are no active mental health issues, and there were grandparents on both sides who could help.
In short, said the judge, none of this was sufficient to shift the court away from the ISW’s goal of 50/50 care. There was a need to look forward and not back. He was satisfied the evidence was sufficient to make a welfare decision to meet the s 1(3) checklist. There should be a shared living-with order with broadly equal time to be spent with each parent. The details would need to be clarified to address practical issues around handover, particularly once school began.
Nor was it appropriate to make a family assistance order (FAO) or any need for a prohibited steps order (PSO). A FAO had been recommended by the ISW but the judge said it created a risk that one parent might simply raise the temperature again by invoking the assistance of the local authority. An existing PSO obtained by the father to stop the mother taking the child outside England and Wales was discharged.
Comment
Given the balanced outcome of the hearing, any fears about the expert evidence of the ISW did not appear to materialise. Recorder McAllister seemed to be going out of his way to ensure everyone had their say, notwithstanding the often adversarial nature of the witness evidence from the parties and the tensions in the room. The outcome seemed fair, and one hopes that the parents do now focus on looking forward and not back, for their own sakes as well as (primarily) for that of their child.
Image: thanks Patrick Fore, Unsplash
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