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Court of Appeal slams judge for "unprincipled" approach to final care orders

The Court of Appeal has sharply criticised a county court judge for adopting a “ruthlessly truncated” and “fundamentally unprincipled” process when he made final care orders at what the parties expected to be a directions hearing.

In Re S-W (Children) [2015] EWCA Civ 27 (30 January 2015) Liverpool City Council had applied on 18 July 2014 for a care order in respect of three children.

Less than three weeks later (7 August), at a case management hearing (CMH), His Honour Judge Dodds at Liverpool County Court made final care orders in respect of each child.

All the parties had anticipated that the matter would be dealt with by way of directions hearing which would provide for an early Issues Resolution Hearing and which would record, on the face of the order, that the IRH might well be treated as a final hearing.

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For the mother, the expectation that it would be a directions hearing was of fundamental importance because the results of hair strand drug testing (in relation to her alleged cocaine use) would inform a decision at the later hearing as to whether further consideration would be given to the rehabilitation of the middle child (LW) to her.

The mother appealed HHJ Dodds’ ruling and was granted permission by Lord Justice McFarlane. Neither Liverpool City Council nor the children’s guardian sought to uphold the orders made by the judge.

Lady Justice King in the Court of Appeal said a transcript of the hearing revealed that “within a matter of minutes” the judge had “made abundantly clear, in trenchant terms, his determination to conclude the case there and then by making final care orders”.

HHJ Dodds had said he was fortified in his approach because the previous week (30 July 2014) an application for permission to appeal in relation to another final care order he had made at the case management hearing in a different case – Re H (Children) Case No: B4/2014/2033 – had been refused by McFarlane LJ.

The transcript also showed the judge had been scathing of the Guardian’s report and her reasons for requesting further information, saying the new Bundles Direction would signal an end to what he called “this sort of Victorian detail”.

In relation to the middle child’s situation, the judge said that whilst he wished LW “every good luck in the world but the Children Act and the court has nothing to do with it”.

Lady Justice King noted that: “All the parties crumbled under the judge's caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed.

“The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders.

“The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews).”

At one stage HHJ Dodds referred to the mother as looking "upset and bewildered".

“It is hard to see how she could have looked otherwise given the course the proceedings were taking,” Lady Justice King said.

HHJ Dodds also failed to give a judgment or reasons prior to making final care orders in relation to all three children.

Lady Justice King said it was conceivable that there might be cases where a final order would be made at the case management hearing. In reality, however, it was likely that such a course would be appropriate only occasionally and in any event:

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Where there remained any significant issue as to threshold, assessment, further assessment or placement, it would not be appropriate to dispose of the case at CMH.
  • It could never be appropriate to dispose of the case where the children's guardian had not at least had an opportunity of seeing the child or children in question and to prepare to a case analysis in which he/she considered the section 31A care plan of the local authority.
  • Where, unusually a case is to be disposed of at CMH, adequate notice must be given to the representatives of the parents and Guardian; reluctance on their part will ordinarily be fatal to the proposed course. “Having said that, where all that is required is for the parties to have a little more time or for the local authority to prepare a section 31A care plan one can envisage cases where the matter is adjourned for a further CMH with the intention that final orders will be made at the adjourned hearing., Another example where in exceptional circumstances it may be appropriate to make final orders at the CMH could be where, the outcome is inevitable and the child's need for an immediate resolution to the proceedings is critical to his or her welfare.
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  • A care order should not be made without some reasons or a judgment no matter how concise. “It is not enough to proceed on the basis that the reasons for making a care order, and still more a placement order, can be distilled from the transcript of discussion between the judge and the parties at court.” There must at least be a short judgment/reasons noting the available options, the positions of the parties and confirming that the outcome for the child is in his or her best interests and is proportionate and therefore Convention compliant.

Lady Justice King said: “All parties agree that this is a case where the judge, in his desire to embrace and put into effect the family justice reforms, has unilaterally disposed of a case prematurely in circumstances where such a summary disposal was not only unfair to the mother but contrary to the interests of the children with whom he was concerned.”

The President of the Family Division, Lord Justice Munby, said it was all too apparent from the case that no dispassionate observer of the proceedings or reader of the transcript could think justice had been done, let alon that it had been seen to be done.

Vigorous and robust case management had a vital role to play in all family cases, the President added, but robustness could not trump fairness.

He added that HHJ Dodds had failed to (a) ensure the case management hearing was conducted fairly and (b) arrange a trial that was fair.

"We are all familiar with the aphorism that 'justice delayed is justice denied'. But justice can equally be denied if inappropriately accelerated," the President said.

Lord Justice Munby added that two fundamental principles were in play: a parent facing the removal of their child must be entitled to put their case to the court, "however seemingly forlorn"; and there is the right to confront one's accusers. A parent who wished to give evidence in answer to a local authority's care application "must surely be permitted to do so".

The President said he agreed with Lady Justice King that there could, in principle, be care cases where the final order was made at the case management hearing.

“But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate,” he added.

Re H…. was such a case, but the particular and unusual facts which there justified a summary process need to be borne in mind. Re H is not and must not be treated as justification for any general principle, let alone for proceeding as the judge did in the present case.”

The Family President said: “Quite apart from the fact that such a ruthlessly truncated process as the judge adopted here was fundamentally unprincipled and unfair, it also prevented both the children's guardian and the court doing what the law demanded of them in terms of complying with the requirements of the Children Act 1989 and PD12A.”

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