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Final care order without a full hearing appropriate only in exceptional cases

Neither judgment nor reasons given for order

In Re S-W (children) [2015] EWCA Civ 27, the Court of Appeal has allowed an appeal by a mother against a care order which was made at a case management hearing.

Lady Justice King, giving the lead judgment in the Court of Appeal, said that whilst there are a number of conceivable circumstances in which a final care order might be made at the case management hearing such a course would be appropriate 'only occasionally and in exceptional circumstances'.

She stated at paragraph 40:

'…. The PLO militates against such an outcome not least because:

i) It is listed within days of proceedings being issued, often solicitors will only just have become involved and had only limited time to take instructions it follows that the evidence to be relied on by the parents at a full trial is unlikely to be available, even in outline;

ii) The Guardian is unlikely to have read more than the Checklist documents served with the application and may well not have seen the decision making records which are only disclosed on request; further, unless he or she have been involved with the family in relation to other children he or she is unlikely to have seen the parties or the children, a significant omission particularly where, as here, there are older children who have lived with a parent for many years;

iii) A "section 31A" CA 1989 care plan will not, in all likelihood, be available.'

The President, Sir James Munby, said that 'vigorous and robust case management has a vital role to play in all family cases, but ... the duty of the court is to deal with cases justly, having regard to any welfare issues involved. ... [R]obustness cannot trump fairness.'

In this case, a transcript of the case management 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. The judge was fortified in his approach, he told the parties, by the fact that the previous week, an application for permission to appeal in relation to another final care order he had made at the CMH in a different case had been refused.

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.'

She added:

'At one stage the judge 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.'

The judgment and summary by James Holmes of 1 Gray's Inn Square are here.

8/2/15