Decision to exclude mother as future carer was marred by procedural irregularity, Court of Appeal finds

A case management hearing during which a mother was excluded as a future carer for her child was unjust because of a procedural irregularity and must be heard by a different judge or recorder, the Court of Appeal has ruled.

The case of O, Re (Care Proceedings) [2024] EWCA Civ 696 concerned 10-months-old O, who has siblings aged 10, 9 and 7 years.

Lord Justice Baker was told there have been longstanding concerns about domestic abuse in the parents' relationship and the children's exposure to that abuse and in 2022, the local authority started care proceedings for the three older children.

The mother became pregnant in early 2023, and a pre-birth assessment concluded she did not accept she needed to make changes or required support.

In July 2023, HHJ Earley recorded that the mother was a vulnerable person as a victim of abuse and had difficulties understanding complicated matters and maintaining concentration, and as a result had been supported by an intermediary. She also found the mother had been subjected to coercive, controlling and abusive behaviour perpetrated by the father; the three older children had suffered significant emotional harm by growing up in a home where there had been domestic abuse; the mother had failed to protect the children from emotional harm; the eldest child had been assaulted by the father, and the mother subsequently accused the child of lying about that incident causing him further emotional harm.

The three older children were made subject to full care orders on the basis of care plans for placements in their extended family.

O was born in August 2023. Care proceedings were started immediately and he was made subject to an interim care order and later placed in foster care, with supervised contact with the mother.

During a final hearing on an adoption order in February 2024 it became known that members of the father's extended family, Mr and Mrs A, had been identified as potential carers.

A positive assessment of this option followed, and the matter returned to court for a further case management hearing on O’s intended placement with the couple.

All parties approved, but the local authority asked for a 10-week suspension in the mother's contact. The mother objected but HHJ Earley endorsed it as a suspension of contact was necessary to give the planned placement with Mr & Mrs A the best chance of success.

She said that when contact was resumed it would be on a much more restricted basis.

The mother appealed on numerous grounds and Baker LJ found HHJ Earley had made the decision as a recital “on her own initiative and without prior notice to the parties who had arrived at court expecting to participate in a hearing dealing only with procedural aspects of progressing a case towards a final hearing.

“On any view, this was unfair. This mother is facing the removal of her child. Although she has had an opportunity to cross-examine the local authority witnesses, she has not yet had the chance to give oral evidence nor challenge the guardian. If she chooses, she is entitled to put her case to the court, however seemingly forlorn.”

He said HHJ Earley’s decision to exclude the mother as a future carer for the child “was a procedural irregularity which was sufficiently serious to lead to injustice”.

Baker LJ said: “Although in every other respect the judge's management of this case has been entirely appropriate, justice requires that the proceedings now be transferred to another judge.”

Lord Justice Bean and Lord Justice Lewison both agreed.

Mark Smulian