Re G (Children: fair hearing) [2019] EWCA Civ 126

When an urgent removal hearing is listed at short notice, the pressure for a decision to be made can often lead to a fraught situation where the proper testing of evidence is sometimes sacrificed on the altar of practicality and convenience, writes Joseph Lynch.

Joseph Lynch

In the case of Re G the circumstances of the initial hearing will be familiar to most family practitioners. The case had come in on the back of a PPO expiring which necessitated the need for a decision as to where the subject children would be placed when that happened. I do not intend to recite the facts which led to the hearing but will highlight the issues which led to the successful appeal.

There are two distinct issues raised firstly the length to which a Judge can go in giving an indication prior to hearing evidence and secondly the nature and impact of any findings that may be made at an initial hearing.

With the usual scant one-sided evidence before the court, HHJ Carr QC gave a very forceful indication to the mother when told that the application was to be opposed.

The discussion between the Judge at first instance and counsel for the mother highlights the difficulties faced on that occasion by the mother and led to the assertion that the judge gave the impression of having prejudged the threshold and the outcome and she exerted undue influence on the mother in a number of ways, including by repeatedly warning her that she would be ‘stuck’ with adverse findings and by threatening to refer the matter to the police and the CPS, something that was bound to place the mother under extreme pressure. Overall, the judge’s approach overbore the mother’s will.

Jackson LJ observed:

23. Judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter. As Stuart-Smith LJ said in Re R (above) at 130:

“A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when they are unwilling to do so.”

24. Measured against these principles and making every allowance for the realities of practice in a busy family court, I regret that what occurred in this case fell well outside the proper exercise of the court’s powers

The court granted the appeal. The following grounds of appeal were described as the ‘nub’ of the matter: The learned Judge had subjected the mother to extreme pressure amounting to duress and undue influence through her comments in court and impacted on the advice given to her. As a victim of duress, she did not freely consent to the ICO. This resulted in serious procedural irregularity. The learned Judge’s comments gave a strong indication she had pre-judged the application and prejudiced a fair hearing, breaching the Mother’s Article 6 and 8 rights.

On a technical point, the court further dismissed the submission made by the Local Authority that the correct approach would have been an application discharge in circumstances where it is alleged that a judge brought improper pressure to bear: this issue had already been determined – Re R (Contact: Consent Order) [1995] 1 FLR 123

Moor J (Paras 31-35) highlights the difference between the legal basis for the making of interim care orders (section 38(2)) and final care orders (section 31(2)) and much lower bar of ‘reasonable grounds’ at the interim stage. In his judgment he is very clear that the impact of any findings that may be made at the interim stage should not be used as any form of pressure on the parents as any findings should not be finalised at that stage.

34. Section 38(2) does not require the court to make findings of fact to the civil standard, nor to be satisfied that the main threshold document is proved. Instead, the section requires the court to be satisfied that “there are reasonable grounds” for believing that the threshold in section 31 is made out. It follows that, at an interim hearing, rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing. Accordingly, we consider that courts, if  they do it at all, should be very cautious before making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure.

35. If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it will say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.

This case raises a number of issues and reminds us of the importance of interim care order hearings and the need to ensure that whatever decision is reached at those hearings is fair and properly reached. The pressures of time on the professional parties involved in care proceedings should not lead to a dilution of the necessary evidence and procedural fairness at the very start of what can be the most stressful event a family will experience.

As barristers, we not only have a duty to our client but also to the court. Whilst a misguided indication from the tribunal may assist the case being put on behalf of our client, whomever that may be,  if it is crossing the line as has been seen in the case highlighted here it falls to all advocates to assist the court and highlighting any errors that may have been made.

One of the most frequent laments heard in the family court from parents is that the system is not fair. If we are aware of an impropriety then the easiest way to fix it is to raise the issue early on. That falls on all our shoulders and we should embrace that responsibility to ensure that those the family courts exist to serve can be confident that whatever the outcome of their case, that outcome has been reached in a fair and just manner.

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