The value of pre-trial preparations in care proceedings

Family analysis: A case determining the care plans for seven children offers practitioners useful guidance on how advocates and judges can approach pre-trial preparations to the good of all sides. Lucy Hoare, solicitor with Hecht Montgomery, and Mark Twomey QC of Coram Chambers, address a case offering clear lessons.

Original news

Re N-S (Children) [2017] EWCA Civ 1121, [2017] All ER (D) 184 (Jul)

The judge's decision to approve care plans for adoption and in making final care placement orders in respect of four children had been deficient due to the absence of consideration, within the judgment, of long-term fostering and contact between the children and their parents. The Court of Appeal held, however, that the absences of those topics within the judgment had been understandable and had not represented a material irregularity in the overall conduct of the proceedings.

What was the background to this case?

Lucy Hoare (LH): There were care proceedings concerning seven children heard by HHJ Wilding in the Watford Family Court. The central allegations were neglect and emotional harm. The appellant was the father of the youngest four children. Threshold had been agreed and the parents agreed the care plans in respect of the eldest three children. A nine day final hearing took place at which the parents continued to seek the return of the youngest four children to their care. The local authority, supported by the children’s guardian, sought care and placement orders which HHJ Wilding went on to make.

What was the subject of the appeal?

LH: The father accepted that in respect of the three youngest children there was no prospect of a return to the parents care. The appeal was essentially a ‘reasons’ challenge in respect of two related questions, as outlined in the judgment. Firstly, what is the extent of a Judge's responsibility to provide reasons in support of orders made at the conclusion of public law children proceedings? Secondly, where there has been a failure to give reasons, but there can be no challenge on appeal to the substantive orders made, what steps, if any, should the appellate court take to redress the lack of adequate reasoning?

What did the court decide and why?

LH: The appeal was dismissed. The central complaint of the father was that HHJ Wilding had spent most of the judgment going over the evidence he had heard and dismissing the parents’ ability to care before simply stating the orders he was going to make. McFarlane LJ acknowledged that the judgment clearly fell short of the requirements identified in English v Emery Reimgold [2002] EWCA Civ 605, [2002] All ER (D) 302 (Apr). Despite this, the Court of Appeal was satisfied that there was no overall error or deficit in the Judge's determination and consideration of the deficits in his judgment had to be set against the long term welfare of the four youngest children, which the Court of Appeal found flowed from the judge’s overall findings.

What are the practical implications of this case?

Mark Twomey QC (MT): The most obvious guidance for practitioners comes from the suggestion that it makes good sense for the advocates to identify each issue, great or small, that they consider should be determined at the hearing and to do so at the start of the hearing. Judges are advised that this agenda should be reviewed at the close of the case so that it may form a list of issues for the judge to address in the judgment. The clear advantage in such circumstances is that there is then no doubt about the issues for the judge to resolve. In this case, the local authority demonstrated how long term foster care had not been a triable issue by  securing relevant transcripts of evidence and submissions. The reduction of a list of issues in to writing assists the judge when, as here, there is some delay between close of the evidence and delivery of judgment.

Ultimately, the Court of Appeal endorsed the local authority's argument that the onus does rest on counsel to define the issues in dispute, in contrast to the position when these are litigants in person when that obligation largely passed to the court. The use of an agenda might be especially useful in cases where there are litigants in person.

Finally, the case is a useful reminder of the statutory requirement for the court to consider the arrangements for contact before either a care order or a placement for adoption order is made (Children Act 1989, s 34(11) and Adoption and Children Act 2002, s 27(4)).

LH: Practically, Macfarlane LJ suggested that a lesson which could be learnt from the case is that the nature of cases within child care proceedings can generate a whole range of side issues which require determination by the court, in addition to the major questions being determined at each hearing. Therefore, it might be helpful in future similar cases for the advocates to identify all of the issues at the start of the hearing so that they can be reviewed as a type of ‘checklist’ at the end of the hearing and then the judge can be clear each issue requiring determination, or not, has been addressed in the judgment.

How does this fit in with other areas of the development of the law?

MT: The case highlights the different approach where parties are represented in distinction to those cases involving litigants in person.

The deficits in the judgment were stark in this case. There is little doubt that refusing an appeal in such a case where the plan was for adoption, at first blush, appears to fly in the face of the raft of cases in recent years directed to underlining the importance of a court demonstrating exactly how only adoption will do. However, this was an unusual case in that long term fostering had not been actively advanced on behalf of the parents and so the judge's reasoning on this and contact was clear enough.

The case also underlines the expectation that, even where the self-direction on the law is accurate, the judgment must make clear the application of the legal requirements to the factors relating to the welfare of the children whose futures are to be decided by the court.

Do you have any predictions for future developments?

MT: Judges may wish to ensure that the advocates settle an agenda of issues together with other pre-trial preparations, such as settling the witness template. If they do, they will wish to refer to the agenda in their judgment. Alternatively, the relevant part of the standard case management order, which addresses the parties' positions, might be given greater prominence.

Interviewed by Julian Sayarer

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

Filed Under: Children law

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