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G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019)

Procedural appeal against interim care orders by a mother who stated that she was subjected to improper judicial pressure that led to the orders being granted without opposition on her part. Appeal allowed.

The proceedings concerned two young children, who were made the subject of police protection orders after an altercation between the parents led to the mother's arrest. The local authority subsequently issued care proceedings on an urgent basis after the mother withdrew her consent to the children being accommodated. The application for interim care orders was heard by HHJ Carr QC on the day the proceedings were issued, it being the that the day police protection orders were due to expire. There was no written evidence from either parent. The mother met her counsel (who was called in 2016) for the first time at court.

Lord Justice Peter Jackson refers extensively in his judgment to the transcript of the hearing, particularly to an exchange between the judge and the mother's counsel during which, even before the mother's counsel had managed to tell the judge that his instructions were to oppose the granting of an interim care order she told him that "if I hear the evidence, which I'm more than willing to do – my list is empty for this afternoon – I shall make findings and she'll be stuck with them." HHJ Carr QC made several similar statements and concluded by noting that she would "probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens." The mother's counsel asked for further time to take instructions. The case was adjourned for 13 minutes, after which the mother gave her consent to the interim care order.

The mother appealed. Her 'distilled submission' was that she was deprived of a meaningful opportunity to oppose the making of the orders. The local authority opposed the appeal. The father submitted written submissions supporting the case put by the local authority, as did the Guardian.

Lord Justice Peter Jackson allowed the mother's appeal, concluding that there had been a serious procedural irregularity and that the mother did not get a fair hearing. The interim care orders granted by the judge were set aside in favour of short-term orders that would last until an early contested hearing before another judge.

Mr Justice Moor, who agreed with Lord Justice Jackson in allowing the appeal, gave a short judgment addressing the suggestion that findings made at an interim stage in care proceedings would stand for all time. His judgment examines the difference between sections 31 and 38 of the Children Act 1989, noting that section 38(2) only requires the court to be satisfied that there are reasonable grounds for believing that threshold in section 31 is made out and that it does not require the court to make findings of fact to the civil standard nor to be satisfied that the main threshold document is proved. The judgment concludes by cautioning judges against making reference to the significance of conclusions drawn at the interim stage as this may appear to parents to be a form of pressure.

Summary by Frances Stratton, barrister, 1 King's Bench Walk 

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