Re J (Children) [2017] EWCA Civ 398

Published 7th June 2017

This was an appeal by the Mother and the oldest child A against final care orders made in respect of three children aged 16, 14 and 12 respectively, at an adjourned Issues Resolution Hearing (“IRH”). The issue was whether the judge was wrong in the procedure he adopted to make the final orders at the IRH, in particular, in circumstances where two of the children were not represented. The appeal was allowed.

In November 2015, the mother of three boys had been ordered by the District Judge to undertake a full psychiatric assessment including a multidisciplinary assessment of the family to determine her eligibility to care for her children. These assessments were to be filed and served twenty days before the Issues Resolution Hearing (“IRH”) set for 4th April 2016. The mother failed to fully engage with the assessment.

Four days before the assessment was to be filed and served, the mother dismissed her solicitor without completion of the ordered assessments. As a result of the lack of r representation, this matter was listed for directions by the Court on 22 March. The mother was provided with names of family solicitors and the IRH remained listed for 4th April 2016. Thereafter agreement was reached between the parties that the Court would be invited to approve the recommencement of the multidisciplinary assessment.

By the IRH which was heard by His Honour Judge Tolsen QC, the mother remained without legal representation and sought an adjournment. The Children’s solicitor wished to consider the position of separate representation for J and/or A. The Judge vacated final hearing dates of 6th to 8th April but retained 7th April 2016 as an adjourned IRH. At this hearing the Judge required mother to give evidence which the parties thought was to decide on whether the assessment should recommence. Also the children’s solicitor indicated that A was instructing him directly and therefore the Children’s Guardian was unrepresented.

After completion of mother’s evidence on 7th April 2016, it had become clear that His Honour Judge Tolson Q.C was considering making final orders. With all parties in opposition, the Judge adjourned for written submissions and stated he would give a full judgment on 16 May 2016. The Judge decided “The proposed assessment was not necessary, because whilst it might have shed light upon the mother’s mental health, it could not have resulted in a significantly different outcome to the case”. He recognised that the case was unusual as there had not been a fully contested hearing but proceeded to make final care orders for all three children.

The President gave leave for the Association of Lawyers for Children to intervene in the appeal due to the procedural issues. It is understood that both the solicitor and Counsel acted pro bono in the appeal.

The Court of Appeal concluded that the proceedings were not fair to the mother or the children as they ‘failed to accord to the mother her Article 6 rights to a fair hearing and in all circumstances fell short of safeguarding the procedural and substantive Article 8 rights of the children as provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms’. The real issue was not whether the Judge’s assessment of the evidence will ultimately be regarded to be wrong but whether the process adopted by the Judge so undermined any objective concept of procedural fairness as to undermine the integrity of the decision. This is regardless of the distinct likelihood that these children would not be returned to their mother’s care in the foreseeable future. The appeal was therefore allowed and final care orders set aside.

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