IRH is not a shortcut: Court of Appeal mandates necessary evidence, Article 6 fairness, and explicit welfare and contact analysis before making final care orders

Case: H, Re (Final Care Orders at IRH) [2025] EWCA Civ 1342, England and Wales Court of Appeal (Civil Division), 23 October 2025. Judgment of Cobb LJ with whom Phillips LJ and Green LJ agreed.

Introduction

This appeal arose from a Family Court decision at an Issues Resolution Hearing (IRH) in June 2025 to make final care orders in respect of two young children, Y (5) and N (3), within long-running care proceedings that began in early 2023. The local authority invited the court to conclude the proceedings at the IRH; the father (the appellant, father of N and former main carer of Y) and the mother opposed, seeking a listed final hearing to test the evidence through oral testimony. Despite contested positions, the judge made final care orders, endorsing care plans that contemplated placement of Y and N with extended family as precursors to Special Guardianship Orders (SGOs), alongside marked reductions in sibling and parental contact.

The father appealed, supported by the mother. The Court of Appeal allowed the appeal, set aside the final care orders for Y and N, substituted interim care orders, and remitted the case for urgent case management. The Court emphasised that while robust case management is needed, fairness cannot be compromised; an IRH can only conclude proceedings where the “necessary evidence” is in, there is no outstanding material factual dispute that credibly requires testing, and the court delivers structured reasons that explicitly address the statutory framework, including the welfare checklist, permanence provisions, and contact.

Key points at a glance

• An IRH may be used to make final orders only where the necessary evidence is before the court and procedural fairness (including Article 6 ECHR) is preserved.
• Where central factual issues are disputed (e.g., sobriety and risk), parents must be permitted to confront the evidence if that may significantly affect outcome.
• Judgments that conclude proceedings at an IRH must explicitly address: threshold (s31(2)), permanence provisions (s31A), the welfare checklist (s1(3)), and contact (s34(11)), and must explain why a contested final hearing is not necessary.
• Incomplete assessments (e.g., risk work for proposed carers, pending DBS checks) and contingent plans (adoption) preclude summary finalisation.
• “Short‑term care orders” designed to pave the way to SGOs are legally problematic (Re P‑S), and require careful scrutiny.
• Serious factual mistakes (e.g., misapprehension of how long N lived with his father) can fatally infect outcome.

Summary of the Judgment

The Court of Appeal allowed the father’s appeal for these core reasons:

• There was a live, material factual dispute about the father’s asserted sobriety and the consequent level of future risk. That issue reasonably required testing through oral evidence or a short focused final hearing. Denying that opportunity infringed procedural fairness (Article 6), given its potential to affect outcome.
• The evidential picture at the IRH was incomplete: further sexual risk work for N’s proposed carers and outstanding DBS checks for Y’s proposed carers were still pending. Final orders should not have been made before necessary evidence was available.
• The judge gave no adequate reasoning addressing the statutory duties: no structured engagement with the welfare checklist (s1(3)), no proper analysis of permanence provisions (s31A), nor the required explicit consideration of contact (s34(11)), despite significant proposed reductions in sibling and parental contact.
• The judge materially misunderstood a key fact: N had lived with his father for more than 2½ years, not a mere three months, which undermined the welfare analysis.
• Delay, although egregious, was allowed to overwhelm the analysis; delay cannot justify sacrificing fairness or skipping necessary evaluative steps.

The Court therefore set aside the final care orders for Y and N, substituted interim care orders, and remitted the case for urgent case management with directions for a short, tightly focused final hearing on clearly defined issues (risk/rehabilitation; SGO viability; contact). The Court flagged, but did not finally decide, the legal pitfalls of using final care orders purely as “short-term” holding devices pending SGOs (cf. Re P‑S).

Detailed Analysis

Precedents and Guidance Considered

• Re J (Care Proceedings: Issues Resolution Hearing) [2017] EWCA Civ 398; [2017] 4 WLR 109:
  The Court reaffirmed that an IRH can, in principle, be used to make final orders but only “in appropriate cases,” implicitly requiring that the necessary evidence is before the court and procedural fairness is maintained. Macur LJ’s analysis underlined “robust case management” but cautioned that Art 6 and 8 ECHR rights are engaged at every stage, echoing that justice must not be sacrificed to speed.
• Re S‑W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136:
  Sir James Munby P emphasised the right to confront one’s accusers: a parent must be permitted to cross-examine “important” witnesses where their evidence may significantly affect outcome. Final orders at a case management hearing are possible only “exceptionally” and “rarely,” a high threshold that was not met here.
• PD12A FPR 2010 (Public Law Outline) and s32 CA 1989:
  The PLO anticipates that at an IRH the court may identify issues, narrow them, and, if fairly possible, resolve them—including by hearing evidence. But PD12A para 2.3 requires that if the determinative issue can reasonably be crystallised and resolved at the IRH, that flexible approach should be taken. The Court of Appeal held that flexibility cannot override fairness where key evidence is missing or material facts are contested.
• The President’s “Case Management Guidance” (2022) and “View from the President’s Chambers” (July 2024):
  These stress that IRHs must be effective and must be listed with sufficient preparation and hearing time, including time to take “short evidence” if required. Here, the IRH was listed for one hour, lasted 45 minutes, and the local authority changed its position at the hearing, undermining fairness and effectiveness.
• Re P‑S (Children) (Care Proceedings: Special Guardianship Orders) [2018] EWCA Civ 1407:
  The Court warned against the flawed concept of “short-term care orders” designed to test placements pending SGOs; care orders are not time-limited and parental responsibility cannot be artificially constrained. H (Re) flags a similar concern where final care orders were made with SGOs envisaged shortly thereafter and adoption as a contingency.
• Re B (Child: Adequacy of Reasons) [2022] EWCA Civ 407:
  Ex tempore judgments still require a reasonable structure and clear reasons. The absence of structured reasoning addressing statutory factors (threshold, welfare, permanence, contact) was a key error.
• A County Council v DP, RS, BS [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031:
  Whether to investigate further depends on the relevance of the potential result to the child’s future plans. Here, the outcome of the father’s sobriety evidence and the pending assessments was plainly relevant; further investigation was necessary.
• Re NL (A Child) [2014] EWHC 270 (Fam):
  Pauffley J’s dictum—“Justice must never be sacrificed upon the altar of speed”—was expressly invoked. The Court found that the drive to end a badly delayed case overtook fairness.
• Re T (Children: Risk Assessment) [2025] EWCA Civ 93:
  On risk, courts should consider likelihood, consequences, and mitigation. That analysis was required here in light of the father’s asserted sobriety; it was not performed.
• Re B (Minors) (Contact) [1994] 2 FLR 1; Re N (A Child) [2012] EWCA Civ 1563:
  These authorities on the breadth of judicial discretion in case management underscore that “spectrum of procedure” discretion must be exercised lawfully, logically, and fairly; it was not here.

The Court’s Legal Reasoning

Cobb LJ distilled the applicable principles and applied them to the facts:

1. Fairness and necessary evidence at IRH:
   The judge’s decision to make final orders at a contested IRH was wrong because necessary evidence was missing (pending sexual risk work and DBS checks) and a central factual issue (the father’s sobriety and risk) remained contested. Re J requires necessary evidence to be in place; Re S‑W requires that, where the issue may significantly affect outcome, parents can confront and test crucial evidence. Neither requirement was satisfied. A short final hearing with limited, focused evidence was the proper course.
2. Misapprehension of critical facts:
   The judge mistakenly treated N’s time with the father as “short-lived” (3 months), when in fact N had been in his father’s sole care for more than 2½ years. This material error distorted the welfare analysis and undercut the conclusion, particularly as regards N.
3. Statutory omissions in reasoning:
   The judgment did not meaningfully engage with:
   • The welfare checklist (s1(3) CA 1989), including the children’s wishes and feelings and the impact of change;
   • The permanence provisions in the care plan (s31A), and the proportionality of the adoption contingency;
   • Contact arrangements (s34(11)), notwithstanding very substantial proposed reductions in sibling and parental contact.
   Ex tempore brevity did not excuse the absence of structured analysis (Re B (Adequacy of Reasons)).
4. Delay cannot eclipse fairness:
   Although the case had overrun the 26-week target massively, delay cannot justify truncating process in a way that denies procedural fairness (Art 6) or avoids necessary evaluation. The President’s guidance calling for effective IRHs does not authorise cutting corners.
5. “Short-term care orders” and SGO trajectory:
   While the Court did not base its decision solely on this issue, it signalled that making final care orders as a short-term staging post to SGOs is problematic in principle (Re P‑S), especially where plans and assessments are still fluid and where adoption is held out as a contingency.

Implications and Likely Impact

This decision does not prohibit final orders at IRHs; rather, it sharply defines the conditions under which that course is permissible and fair:

• IRHs can resolve cases only where the necessary evidence is complete and uncontested issues do not require oral testing. Where key facts or assessments are outstanding or disputed, a short final hearing focused on determinative issues is the principled course.
• Judicial reasons at an IRH used to conclude proceedings must be structured and explicit on threshold, permanence, welfare checklist, and contact. Proportionality must be addressed, particularly where adoption is a contingency.
• Local authorities should not change position at the hearing without notice. “Surprise” advocacy undermines the PLO’s intent and procedural fairness. Where positions evolve, the court should consider whether fairness necessitates adjournment or limited evidence at the IRH.
• Contact is not peripheral. Section 34(11) imposes a specific duty to consider arrangements and invite comment before making a care order. Significant reductions in sibling and parental contact must be justified by reasons tied to the child’s welfare and proportionality.
• “Short-term care orders” pending SGOs remain suspect. If the ultimate objective is an SGO, the court should, where feasible, complete assessments and consider making the SGO within the proceedings rather than deploying a final care order as a bridging device, unless properly justified and reasoned in light of Re P‑S.
• Listing practices must align with the President’s guidance. IRHs should be given sufficient judicial reading time and hearing time to permit short evidence where needed; otherwise the IRH degenerates into a pre-trial review and cannot fairly deliver finality.

Complex Concepts Simplified

• Issues Resolution Hearing (IRH):
  A key PLO stage where the court and advocates identify what really remains in dispute, explore settlement, and, if possible, resolve the case. In appropriate cases—and only if fairness permits—the court can make final orders at the IRH.
• “Necessary evidence” at the IRH:
  The set of assessments, checks, and professional evidence required to make a safe, proportionate, and fair final decision. If crucial pieces (e.g., risk assessments, DBS checks) are missing or in train, the case is generally not ready for final orders.
• Article 6 ECHR (fair trial):
  Parties must have a fair opportunity to know and challenge the case against them. When a parent’s credibility or behaviour (e.g., sobriety) is central, they should be allowed to test critical evidence through cross-examination if it could influence outcome.
• Welfare checklist (s1(3) CA 1989):
  A structured statutory list of factors the court must consider in determining a child’s welfare, including the child’s wishes and feelings, the likely effect of changes, risk of harm, and the capability of proposed carers.
• Permanence provisions (s31A CA 1989):
  When making or considering a care order, the court must consider the permanence plan—what long-term home and legal status is intended for the child—and assess proportionality, including any contingency of adoption.
• Contact (s34(11) CA 1989):
  Before making a care order, the court must consider proposed contact arrangements and invite parties’ comments. Significant reductions in contact require explicit, reasoned justification rooted in the child’s welfare and proportionality.
• Special Guardianship Order (SGO):
  A long-term legal order giving a child permanence with a special guardian (often a relative), conferring enhanced parental responsibility. Using a care order as a short-term stepping stone to SGO, without more, is problematic (Re P‑S).
• “Parallel planning” and adoption contingency:
  Authorities sometimes prepare a fallback plan, such as adoption, if the preferred family placement fails. Courts must grapple with the proportionality of such contingencies, especially at final order stage.

Application to the Facts of H (Re)

The Court of Appeal identified four decisive features that made finalisation at the IRH impermissible:

1. A material factual dispute about risk:
   The father asserted sobriety since early March 2025, supported by hair strand testing and engagement with services. The local authority disputed his reform. This central dispute could change the outcome and required testing.
2. Incomplete evidence:
   Risk work for N’s prospective carers and DBS checks for Y’s prospective carers were outstanding. The guardian had not fully endorsed the Y placement pending DBS. Final orders could not properly be made without this “necessary evidence.”
3. Procedural surprise and inadequate IRH listing:
   The local authority’s position statement pre-IRH accepted that a final hearing was required; at the IRH it reversed course, seeking final orders. The hearing was listed for only one hour and lasted 45 minutes—insufficient for reading and any short evidence, contrary to the President’s guidance for effective IRHs.
4. Statutory and reasoning deficits:
   The judge did not engage with the welfare checklist, permanence, contact duties, or proportionality, and made a serious factual mistake about N’s history with his father. Delay was overemphasised to the exclusion of fairness and careful evaluation.

Post-IRH, the paternal grandmother’s unexpected death starkly illustrated why incomplete plans and contingencies (including adoption) should not be endorsed via final orders without full evaluation; it underlined the prudence of the appellate court’s approach.

Practical Guidance and Checklists

When may a judge make final orders at an IRH?

• Only if the necessary evidence is complete and available.
• Only if any material factual dispute that could change the outcome does not credibly require oral testing.
• Only if the court can deliver structured reasons addressing:
  • Threshold (s31(2)) and the evidential basis;
  • Permanence provisions (s31A) and proportionality, including any adoption contingency;
  • Welfare checklist (s1(3)), with particular attention to wishes/feelings and likely effect of changes;
  • Contact (s34(11)), with explicit consideration of proposed reductions and the parties’ comments.
• Only if Article 6 fairness is preserved, including, where appropriate, the right to confront and test important adverse evidence.
• Only if the IRH is listed with sufficient judicial reading time and hearing time to take short evidence if needed.

Red flags that finalisation at IRH may be inappropriate

• Pending assessments or checks (risk work, DBS, viability queries) that bear directly on the plan.
• A central issue (e.g., sobriety, domestic abuse, parenting change) that is credibly disputed and potentially outcome-determinative.
• Late changes of stance by any party that take others by surprise.
• Proposed “short-term” care orders as stepping stones to SGOs without full reasoning (cf. Re P‑S).
• Large contact reductions, especially sibling contact, without explicit welfare-based justification.

Conclusion

H (Re) is a clear and practical appellate message: an IRH is a powerful case-management tool, but it is not a shortcut to finality at the expense of fairness, completeness of evidence, and structured statutory reasoning. Where key assessments are pending, central facts are in dispute, or the plan entails dramatic changes to family life—such as separating siblings or sharply reducing contact—the court must either hear short evidence at the IRH or list a focused final hearing. If the IRH is used to conclude proceedings, the court must explain why and must engage explicitly with threshold, permanence, welfare, and contact, ensuring proportionality and compliance with Article 6 and the overriding objective.

The judgment also renews caution against “short-term care orders” as staging posts to SGOs and underscores that delay, however serious, cannot override the need for a fair, reasoned process. For judges, advocates, and local authorities, H (Re) sets a firm procedural benchmark for IRHs: be prepared, be fair, be complete, and be explicit.