Re S-W (Children)

Factual and Procedural Background

This appeal concerns final care orders made at the Family Court in Liverpool on 7 August 2014 regarding the three children of the appellant mother: ES (aged 14), LW (aged 11), and AW (aged 10). Liverpool City Council applied for care orders on 18 July 2014, and at the Case Management Hearing (CMH) less than three weeks later, the judge made final care orders for all three children. The mother sought permission to appeal, arguing that the case was summarily disposed of at an early stage. Permission to appeal was granted on 30 October 2014, with the Court of Appeal noting the need to consider whether such a robust summary approach aligns with recent family justice reforms and fair trial requirements.

The family had been known to Liverpool Children's Services since 2006. The children were removed from the mother's care in late 2012 under a section 20 Children Act 1989 agreement due to concerns including neglect, substance abuse, and the mother's involvement in a violent relationship. ES and AW were placed with their maternal and paternal grandmothers respectively, and LW was in local authority foster care but had experienced multiple placements and expressed a strong desire to live with his mother.

Despite concerns, care proceedings were not initiated until July 2014. Prior to proceedings, a parenting assessment was conducted, which was negative regarding rehabilitation. A Guardian was appointed and prepared an initial evaluation without having seen the children, highlighting concerns about LW's welfare and requesting further information and documents. At an Advocates meeting before the CMH, parties agreed on directions including drug testing of the mother, a Family Group conference to explore LW's possible return to maternal care, tracing ES's father, and Special Guardianship assessments for the grandmothers.

At the CMH, the judge proceeded to make final care orders within minutes, rejecting requests for further evidence and disregarding the Guardian's concerns. No judgment or reasons were given prior to making the orders. The local authority had only filed interim care plans, which were outdated and incomplete. The parties did not support the immediate final orders, and the Guardian was not physically present at the hearing.

Legal Issues Presented

1. Whether it is appropriate to make final care orders at a Case Management Hearing held shortly after the issue of proceedings, especially where key evidence and assessments are incomplete or unavailable.
2. Whether the robust and summary disposal approach adopted by the Family Court complies with the requirements of fairness, Article 6 of the European Convention on Human Rights, and the recent family justice reforms.
3. The extent to which the court must consider and scrutinise care plans, including section 31A care plans, before making final care orders.
4. Whether adequate reasons or judgments must be provided when making final care orders at an early stage in proceedings.

Arguments of the Parties

Appellant's Arguments

• The case was summarily disposed of at the CMH without adequate time for preparation or presentation of the mother's case.
• The Guardian had not seen the children or completed a full case analysis.
• The local authority had not filed a compliant section 31A care plan, preventing proper judicial scrutiny of permanency arrangements.
• The mother was denied the opportunity to provide evidence, including drug testing results, which were critical to the case.
• The absence of reasons or a judgment rendered the decision unfair and non-compliant with procedural fairness and Article 6 rights.

Respondents' Position

• Neither Liverpool City Council nor the children's guardian sought to uphold the orders made at the CMH.
• All parties agreed that the appeal should be allowed and the matter remitted for proper hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the case in the context of the family justice reforms aimed at expediting care proceedings within 26 weeks through robust case management. It acknowledged that while flexibility and promptness are important, these must not compromise fairness or the parties' rights under Article 6 of the European Convention on Human Rights.

The judge at first instance had relied heavily on a previous refusal of permission to appeal in another case (Re H) to justify making final care orders at the CMH. The Court of Appeal clarified that refusal reasons are not binding and that the facts of the present case were materially different, particularly as the mother did not consent and the care plan was incomplete.

The court emphasised that a CMH is primarily a case management hearing designed to prepare the case for a final hearing, not to make final orders except in exceptional circumstances. It noted the lack of a proper section 31A care plan and the Guardian’s inability to properly assess the children due to limited information and absence of contact with the children.

Drawing on established case law, the court stressed that final orders at an early stage require sufficient evidence, opportunity for cross-examination, and clear reasons for decision. The judge’s failure to provide reasons and to allow the mother and Guardian to fully participate rendered the process unfair and contrary to the requirements of the Children Act 1989 and the Family Procedure Rules.

The court underscored the fundamental principle that justice must not only be done but be seen to be done, and that a closed mind or premature decision-making breaches this principle. It also highlighted the importance of parents being able to present evidence and challenge the local authority’s case.

Holding and Implications

The Court of Appeal ALLOWED the appeal against the final care orders made at the CMH.

The court held that the summary disposal of the case at the CMH was premature, unfair to the mother, and contrary to the interests of the children. The matter was remitted to the Designated Family Judge for Liverpool for proper consideration in accordance with procedural fairness and statutory requirements.

The decision clarifies that final care orders at a CMH are only appropriate in exceptional cases where the outcome is agreed or inevitable, and where all parties have had adequate opportunity to participate. It reinforces the necessity for courts to provide reasons for decisions, ensure compliance with care plan scrutiny obligations, and uphold the fundamental principles of fairness and open justice in family proceedings.