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M (Children: Applications by Email) [2021] EWCA Civ 806

Court of Appeal allows an appeal stating that the fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny and there are limits to the use of flexible and informal decision making and the default position is that there should be a hearing, even if conducted remotely.


The facts

These are care proceedings where a mother was found to have cognitive difficulties. An application under FPR Part 25 for a full psychological assessment was granted by the allocated judge, a DJ, at a CMH. The mother did not attend the appointment, having forgotten. Further appointments were offered the mother did not respond to her solicitors. The timetable was jeopardised. The children's solicitor notified the mother that the children's guardian had instructed her to apply to "vacate" the direction on the basis that the timetable would be affected. The application was made by email and referred to the DFJ.  It was then discovered that the maternal grandmother had been admitted to hospital and died. The mother finally responded she would want to be assessed. The solicitor for the child sent an email to the DFJ with a draft order saying that no objection had been received to the proposed order. The mother's solicitor emailed the court the same afternoon explaining about the bereavement, saying that the mother's last instructions were that she wanted to be assessed and seeking a listing of the application.

The matter was not referred to the allocated judge and the DFJ approved the draft order supplied by the child's solicitors "vacating" the direction. She extended her condolences to the mother for the death of the grandmother. The process involved 3 emails in the space of under 1 ½ hours.
The mother gave instructions and a request was made to the DFJ for reasons (proferring the explanations for the missed appointment). The judge responded saying that this had been an important appointment and the fact that the mother forgot was "troubling" and the judge had no confidence that the mother would comply by attending other appointments.

The Court of Appeal's decision

The Peter Jackson LJ noted [24] that the mother's solicitors should have notified the court when the timetable was in doubt and the children's solicitor was correct to do so. However, the children's solicitor's email should have given more detail including that another appointment was being offered to the mother by the expert. The email application also proceeded on the basis of absence of dissent and not agreement. The local authority and father and other parties had expressed no view.

It would also have been appropriate to refer the case to the allocated judge who would have been aware of the reasons why the expert assessment had been considered necessary previously and balance that against the changes to the timetable as a result of the delay in obtaining the report. "Maintenance of the statutory timetable is always an important factor, but the children are in a family placement and delay was not the driving factor. This process fell short of what is required in a case concerning the futures of four young children." [38]
The court acknowledged at [42] that FPR 18 allows a court to dispense with the requirement for a formal hearing and a hearing, but what may be appropriate for a consent order, was not necessarily appropriate for a significant order such as was the case here.

At 43- 44 Peter Jackson LJ stated 

"The court must distinguish applications that can appropriately be made without an application notice from applications that should, because of the importance of the issue or for some other reason, be made by formal notice…44.Similarly, the court must discriminate between those applications that require a hearing and those that do not. The default position is that there should be a hearing, as the court can only make an order without a hearing if it does not consider that a hearing would be appropriate. It should be on solid ground if it makes an order without a hearing when, as the rule contemplates, the parties agree that a hearing is not required, or where the order is agreed. It may also decide to dispense with a hearing in other circumstances, for example where the issue is not of particular importance, or where the proper order is obvious, or where the documents contain all the information and arguments and a hearing is unlikely to add much. There will be other reasons why an application can be fairly dealt with without hearing – it is all a matter of judgement"

The application could have been listed for a short remote directions appointment, when the position could have been considered, instead the result was a time-consuming appeal which was neither opposed nor conceded by the local authority or children's guardian.

The Court of Appeal gave fresh directions for a report, rather than remitting it, thereby increasing the delay.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII