In Re J (Children) [2017] EWCA Civ 398 (23 May 2017) the Court of Appeal allow an appeal from His Honour Judge Tolson QC, overturning care orders that he had made at an Issues Resolution Hearing (IRH). An IRH is a penultimate hearing, which is generally fixed once all the evidence has been gathered, with the aim of seeing whether some or all of the issues can be resolved by agreement or dealt with without a trial. An IRH is not a final hearing, If things cannot be agreed or resolved it will be necessary to fix a case for a final hearing so that the remaining issues can be tried, by the court hearing evidence and / or submissions from lawyers.

The key background facts here are that the mother was supposed to be taking part in a family assessment by the Anna Freud Centre but had initially not engaged with it. She’d come around, but her delay meant that the assessment couldn’t be completed by the deadline that had been set earlier, and in particular that things couldn’t be finalised before the dates fixed for the IRH and final hearing. To accommodate the possibility of allowing the assessment to take place late the court bumped the IRH to one of the original final hearing dates and the parties were hoping to bag some final hearing dates in the diary a month or so later. It appears from the judgment that all parties were supportive of the assessment going ahead, it being generally accepted the mother would now probably engage.

However, when the parties got to court for the IRH, HHJ Tolson was dealing with the matter (he hadn’t dealt with it before). He decided to hear some evidence from the mother as a means of assessing, in effect, whether it was worth delaying for the assessment (or so the parties thought, at any rate). At the same hearing it became apparent that the older of the three children was competent to instruct his own solicitor and indeed as of that hearing was doing so (as he held a different view from the Guardian). This left the Guardian unrepresented. He hadn’t by this time filed a final analysis setting out his thinking either.

After hearing the mother’s evidence the judge decided to go ahead and make final orders, knowing that matters were not agreed.

The judge correctly referred to two cases in which the making of final orders at an IRH are said to be potentially appropriate in the right case (Re N (a child) [2012] EWCA (Civ) 1563 and Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136. He justified his decision to make final orders by saying (in effect) that he’d heard what the mother wanted to say through her evidence. He didn’t think having heard her that the assessment would serve any useful purpose and he thought her case was not strong enough to justify a final contested hearing.

What did the Court of Appeal make of all this? It was not impressed. Nobody involved argued against robust case management being a generally necessary and good thing, but the appeal was based upon the proposition that this robust case management had stepped over the line into unfairness. The Court of Appeal agreed. They say (quoting Re N) :

A full hearing may not always be necessary; there is no absolute right to cross-examine each witness or to embark upon a ‘fishing expedition’. However, MacFarlane LJ said in N (A Child) [2012] EWCA Civ 1563 at [10] and [11]

“…. there is a spectrum of procedure in these cases, and in my view where on the spectrum a particular case sits on a particular day, and what is permissible or impermissible in terms of a court’s approach will vary from case to case, and must be proportionate to the issues. …

The overriding objective in the Family Procedure Rules is to discharge the determination of these cases justly and fairly; that is the requirement also borne in by Article 6. There is a line beyond which it is impermissible for the court to go; that line will vary from case to case, and dependent on the facts of the case, and the proportionate approach to procedure.”

The judgment goes on to emphasise the importance of cross examination and the right to confront one’s accuser (within reason). The Court of Appeal were critical of the judge for denying the mother that opportunity, even if her case was weak.

They were also critical of the judge for proceeding without a Guardian’s analysis, particularly where the younger two children were effectively unrepresented, as the Guardian was not to be expected to do the work of a legal representative (his legal representative now being engaged by the eldest child to represent his instructions).

Because everyone at court had thought that the purpose of the cross examination of the mother was to help decide whether the timescales for the assessment should be extended (rather than as an alternative to a final hearing or a prelude to final orders) nobody had treated the hearing like a final hearing and noone had attempted to challenge the Local Authority’s evidence – it only became apparent at the end that the judge was thinking about making final orders. In effect the parties, particularly the mother, were ambushed by the judge. Even the Local Authority, who still want their care orders, say the process was unfair. The article 6 (Fair trial) and article 8 (private and family life) human rights of the mother AND children had been breached as a result of the process adopted by the judge. However, it would have been ok for the judge to hear evidence from the mother if he’d done so simply to help him make a decision about the assessment, rather than as a springboard for final orders.

The fact that it was “distinctly unlikely” that the children would be able to return to their mother’s care in the foreseeable future was irrelevant – things had been so unfair that they had to go back and be done again, this time properly.

The Association of Lawyers for Children were invited to intervene in this case, apparently because of the issue of principle around whether it is ever appropriate to make final orders at an IRH where matters are not agreed – predictably enough the Court of Appeal don’t categorically answer this question, and seem to have simply reconfirmed what lawyers already knew – that one should never say never, but usually such a rush to judgment is not a great idea – as HHJ Tolson has now been rather publicly reminded.

Feature Pic : hare and tortoise by Sharon on Flickr (creative commons) – thanks!