O (Care Proceedings), Re
[2024] EWCA Civ 696
K and L (Children: Fairness of Hearing)
20 June 2023
[2023] EWCA Civ 686
Court of Appeal
A mom lost custody of her kids. The judge was too bossy and didn't listen properly, so the court said the whole trial was unfair and needs to be done again.
Key Facts
- •Appeal by a mother against care orders for her children, K (13) and L (10).
- •Long history of family involvement with social services due to domestic violence, drug/alcohol misuse, difficult child behaviour, and poor school attendance.
- •Children were subject to Child Protection Plans on three occasions.
- •Dr. Banks' reports expressed concerns about the children's emotional neglect if they remained with their mother.
- •Care proceedings initiated in September 2021.
- •Mother gave birth to a baby boy in April 2022.
- •Local authority initially proposed supervision orders, but later advocated for foster care.
- •Guardian initially supported the local authority's plan but later recommended removal and foster placement.
- •Final hearing lasted four days and involved significant judicial intervention.
- •Judge made care orders, removing children from mother's care.
- •Mother appealed on five grounds, primarily focusing on the fairness and bias of the hearing.
Legal Principles
Overriding objective in Part 1 of the Family Procedure Rules 2010: to deal with cases justly, expeditiously, and fairly.
Family Procedure Rules 2010, Part 1
Judges have extensive case management powers and are expected to intervene actively, particularly in children's proceedings.
Re AZ (A Child) (Recusal) [2022] EWCA Civ 911
Excessive judicial intervention may undermine the fairness of the process (Yuill v Yuill principle).
Yuill v Yuill [1945] P 15
Appellate courts must consider the difficulties at trial when reviewing conduct (Re G principle).
Re G (A Child) [2015] EWCA Civ 834
Frequent judicial intervention or unequal treatment of advocates is not automatically unfair; interventions must be assessed qualitatively.
Re G (A Child) [2015] EWCA Civ 834, M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch)
A hearing conducted unfairly cannot be saved by a well-written judgment.
Re G (A Child) [2015] EWCA Civ 834
Two-stage test for apparent bias (Porter v Magill): (1) ascertain all relevant circumstances; (2) would a fair-minded observer conclude a real possibility of bias?
Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468
Bias is prejudice against a party for reasons unconnected with the merits of the case.
Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, Serafin v Malkiewicz [2020] UKSC 23
Children Act 1989, s.1(3): Welfare checklist – paramount consideration of child's welfare.
Children Act 1989
Children Act 1989, s.42(2)(b): Guardian's duty to safeguard child's interests.
Children Act 1989
Family Procedure Rules 2010, Part 3A: Procedures for vulnerable persons.
Family Procedure Rules 2010
Rigorous evaluation and comparison of all realistic possibilities for a child's future are required when considering removal from family (Re D principle).
Re D (A Child: Placement Order) [2022] EWCA Civ 896
Outcomes
Appeal allowed.
The hearing was unfair to the mother due to excessive judicial intervention during her evidence and closing submissions, preventing her from adequately presenting her case. The judge's failure to properly consider the welfare checklist factors also contributed.
Care orders set aside.
The unfairness of the hearing necessitated a rehearing.
Applications under s.31 to be reheard.
To ensure a fair hearing for the mother.
Supervision orders from October 2021 to continue in the interim.
To maintain some level of oversight while awaiting the rehearing.