A Reminder of the Need to Robustly Stand Up to Judical Pressure and the Important Distinction Between Sections 31 & 38 of the Children Act 1989

Children – Public Law

04 June 2019

Re G (Children: Fair Hearing). [2019] EWCA Civ 126

On the first of these two issues this was a procedural appeal against interim care orders by a mother who stated that she was subjected to improper judicial pressure that led to orders being granted without opposition by her. The appeal was heard by Lord Justice Peter Jackson and Mr Justice Moor.The proceedings concerned two young children, following police protection orders (PPO) being made after an incident between the parents resulting in the mother’s arrest.

The facts of the matter are not needed for the purposes of this article.

Suffice it to say that the mother withdrew her consent to the children being accommodated and the Local Authority (LA) issued urgent care proceedings.

The application for interim care orders was heard on the same day that the proceedings were issued, the day the PPOs were due to expire.

There was no written evidence from either parent.

The mother met her Counsel (called in 2016) for the first time at court.

In his judgment Jackson, LJ, referred at some length to the transcript of the hearing and in particular to an exchange between the judge and mother’s counsel during which, even before mother’s counsel had been able to tell the judge that his instructions were to oppose the local authority’s application for an interim care order the judge told counsel “if it is heard today I shall certainly make findings that your client will be stuck with”.

After mother’s counsel finally managed to tell the judge “well, my instructions are to contest the ……” the judge said “Well, quite but does she realise the impact, that if she chooses to go ahead with this I shall be forced to make findings”.

When mother’s counsel requested more time to explain the significance of the judge’s comments to the mother the judge said that counsel had already had an hour and 15 minutes, subsequently changed to an hour and a half.

The judge further stated, before even inviting any comment by the representative for the guardian that “this application is bound to be supported by the Guardian”.

After the Guardian’s representative confirmed that the LA’s application was indeed supported by the Guardian the judge went on to say “I should ask, but it’s bound to be supported by the Guardian. If I go ahead and make findings- which inevitably I will, because something happened at the house on the 21st of January—she is stuck with those, and it could impact on how the police look at it and everything. Potentially, the situation is—is very risky for her and I —I say that so that no one’s left in any doubt that if I hear evidence, which I’m more than willing to do—my list is empty for this afternoon— I shall make findings and she’ll be stuck with them”

In light of that indication counsel for mother asked to “have a further word” with his client and the judge said “Well you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father and undoubtedly retrieved, late at night, her daughter. It may be that he (F) kept the child when he shouldn’t have done, but I don’t know that yet. It may be something I have to make a finding about—that— what caused her to act in this manner, but this is a case where inevitably, I’m going to make findings it doesn’t take rocket science to realise that if you grab a child in the —late at night when the child should have been in bed asleep-that is significant harm. I don’t think there’s any question about it”.

When mother’s counsel replied that mother had had to make a difficult choice the judge described this as nonsense.

When mother’s counsel further tried to tell the judge that the mother “had to take steps to safeguard the welfare of her daughter” the judge dismissed this commenting “No. that’s not the way that you go around it…If that is the preposterous proposition you are putting to me, it’ll fall on deaf ears”.

Mother’s counsel asked for more time to take instructions. The judge agreed to put the back for 10 minutes repeating that she wanted the mother “to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to the CPS and —see what happens. This is not the sort of situation that it seems to me …should be permitted to happen without consequences”.

After a 13 minute adjournment the mother gave consent to the interim care order.

Not surprisingly the mother and her family became distressed at what had happened and the mother appealed.

There were eleven wide ranging grounds of appeal which Jackson, LJ, summarised as follows:

  • The mother had been subjected to extreme pressure amounting to duress and undue influence by the judge’s comments which had impacted on the advice she had received. As a victim of duress mother had not freely consented to the ICO which resulted in serious procedural irregularity
  • The Judge’s comments gave a strong indication that she had prejudged the application and prejudiced a fair hearing, breaching the mother’s Article 6 and 8 rights

In his concluding comments Lord Justice Jackson made the following further comments:

This is a procedural appeal, concerned with a party’s right to put her case and to have it fairly judged. It is about the process not the outcome.

The overriding objective in family proceedings is to deal with cases justly, having regard to any welfare issues involved.

Judges can, and frequently do, indicate a preliminary view to the parties. This is entirely proper and may lead to parties changing their positions………However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter.

In allowing the mother’s appeal Jackson, LJ,  concluded that there had been a serious procedural irregularity and that the mother did not get a fair hearing. The interim orders were set aside in favour of short term orders that would last until an early contested hearing before another judge.

On the second point Jackson, LJ, expressed concern about the judge’s repeated references to the mother being “stuck” with findings and the fact that Counsel for the appellant mother and the LA had both indicated that this was a warning which in their experience is often given by judges at interim hearings. Neither sought to argue that there was anything improper about this.

Jackson, LJ, made it clear he did not agree leaving it to Mr Justice Moor to make the following comments in his own short judgement, which I have set out in bold for emphasis:

During the course of the hearing, we were told that it was commonplace in certain courts to warn parents that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute. The implication was that these findings would then stand for all time. Indeed Ms F, on behalf of the LA told us that this would be done “to prevent the need to go over the same ground again” later in the proceedings.

It is important to remember that there is a fundamental difference between sections 31 and 38 of the CA 1989. Section 31 sets out what needs to be established before a court can make a full care order. Section 38(2) is in very different terms:-“A court shall not make an interim care order or supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as is mentioned in section 31(2).”

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 affect 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.

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.

A very useful reminder of two very important principles which we all have to deal with on a regular basis but which perhaps sometimes we overlook or find ourselves acquiescing in circumstances when we should not.

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