A discussion of whether too much weight is being put on the back of North Yorkshire County Council v B 2007, and whether there is such a thing as a ‘ruling out’ hearing at interlocutory stage
This is a scenario that’s not that uncommon in care proceedings – all of the evidence on the parents has been collected and the professionals have taken a view on it, that view not necessarily being shared by the parents. But the case isn’t ready for final hearing and is being adjourned for 3-4 months, usually in order to test a placement with a relative.
[Incidentally, could we all stop using the phrase ‘a relative has come out the woodwork’ in such situations? It’s icky, and perjorative. And is a pet hate of mine. They are grandparents, or aunts, or friends, not woodlice]
Can the Court in those circumstances have a hearing which disposes of the parents case at interlocutory stage?
There’s a school of thought that you can, arising from the High Court decision in North Yorkshire County Council v B 2007 [2008 1 FLR 1645]
That case certainly provides some authority for the suggestion that the Court can deal with the parents case before the case is ready for final hearing. And let’s be fair, the cases I do are all in Courts which are bound by High Court authorities.
But, to borrow medical sceptic Ben Goldacre’s phrase “I think you’ll find it’s a little bit more complicated than that”
What follows, like everything on my blog is my personal opinion, and not representative of anything more. But perhaps even more so than usual, because I’m never going to be in a position where my personal opinion on say Re X (it’s a very high threshold to cross to get an EPO these days) is in conflict with the law, since that’s exactly what Re X says.
But my interpretation of how far you can push North Yorkshire is not decided law, and thus I might one day have to present a case where my personal views on it are set aside. Hence the lawerly caveats. Sorry.
Let’s look at the facts of North Yorkshire.
The case was listed for an eleven day final hearing, and just before the hearing, it became apparent that the final assessment on the family carers who had slithered under the doorframe [see how icky it is when you take the usual metaphor and slightly reword it? Stop saying ‘come out of the woodwork] would not be ready.
The Judge was faced with the prospect of abandoning a hearing where eleven days had been set aside, witnesses warned etc and finding all of that time again in the future, or trying to see if something useful could be done with that hearing time. The Local Authority suggested that the Court could use the eleven days to hear mother’s case (that the children should be returned) and then have a shorter disposal hearing on appropriate order and contact at a later stage.
North Yorkshire sets out the Honourable Mrs Justice Black’s(as she then was) decision on the preliminary issue of whether a Court could actually conduct a hearing determining a parents case before the final hearing.
We do not know, as the full case was not reported, what the decision at the end of the eleven days was, but the preliminary issue was decided, and Black J concluded that it was open to the Court to conduct such a hearing.
Now, here are some important things from that judgment :-
- Mother was making a positive case (not just disputing the LA case)
- Mother was asserting that she was making progress and could evidence that. She was on a methadone reduction programme. She accepted she was not in an immediate position to have the child returned, but felt that was achievable in the foreseeable future
- The family members, who were being put forward, were not certain to have a positive full assessment – the prospects were there, but the initial viability had been negative and the placement revisited because the father received a custodial sentence removing his risk from the scene.
- The judgment is only permissive – it says that the Court, could embark upon a hearing to determine the merits of mother’s case. It does not say that a Court HAS to do this in similar circumstances, nor does it set out any criteria for when it would be appropriate to do so, or when it would be wrong.
But this is the paragraph that causes me disquiet if this authority is being used as authority for a principle that parents can be ‘Ruled Out’ at interlocutory stage.
17. It cannot be argued, in my judgment, that decisions in care proceedings only crystallise when the Court is about to make a final order. I am not saying that decisions are not open to a later attempt to persuade the subsequent judge to change earlier conclusions and findings in the right circumstances. In the right circumstances they can be open to later challenge, and res judicata or issue estoppel, in its traditional form has a limited place in family proceedings.
It is the underlined passage that causes me to believe, on a personal level, that using North Yorkshire as authority for a principle that the Court can finally dispose of a parents case at interlocutory stage simply puts more weight on its back than the case can bear. Buckaroo! (also Yeeee-haaa)
If one thinks for a moment about what one would mean by “Ruling Out”, it must surely include this :-
- That the children, if they are old enough to understand, can be told that the Court has decided that they will not go home to mummy or daddy.
- And inevitably, if they are to be told that, that mummy and daddy can’t come back to the final hearing in 3 months time and argue for the return of the children.
- And to an extent, that they are PREVENTED from doing so, as a result of the earlier decision and judgment of the Court.
[and by extension, that if the parent issued a Residence Order application shortly before the final hearing – for which, of course, they don’t need leave as a result of s10(4), the Court would dismiss this without hearing any submissions or evidence. And I suggest that as soon as you put it in those terms, you can see that there’s no possibility of a Court doing that, no matter what judgments have gone beforehand]
If you don’t have those 3 things, then you have not had a Ruling Out of the parents. What you may have had, which is legitimate, is a judicial determination of the case against the parents and the counter case, at a particular snapshot in time and a judgment as to whether, all things being equal the parents are likely to be able to overcome any deficiencies found in that judgment within the children’s timescales.
But saying that the parents can produce no evidence at the later final hearing to counter that judgment – if they make sweeping changes or accelerated progress the Court will not hear them on the issue, is not only NOT expressly sanctioned by North Yorkshire, the case says quite the reverse. [IMHO]
I am also troubled by the concept of Ruling Out, and how it fits with the House of Lords decision in Kent County Council v G 2006
Thus the court’s role is plain. It is not, as Jonathan Cohen QC put it in his eloquent submissions on behalf of Ellie and her parents, to decide whether or not a child is to live with her family. It is, as Charles Howard QC put it on behalf of the local authority, to decide whether or not to make a care order. (paragraph 48)
If it is not the Court’s role to decide whether the child should return to parents, but rather, whether to grant the application made by the State (and that must be right, because that’s where the burden of proof lies) then the Court cannot finally determine that application until final hearing/agreed final IRH.
Of course, where there is a dispute over threshold, or an interim care plan (the parent opposing the move, or level of contact) or dispute as to the expert evidence, or what the timescales for change would be, then there is some value in incorporating within that, the North Yorkshire position, of the Court weighing up the merits of returning the child to the parent at that particular time and perhaps indicating what sort of changes would be required for the door to be opened for parents at the final hearing. I think any and all of that is legitimate and permissable, so long as the Court is not tempted to take that additional step of ruling that the parents case is finally disposed of.
But a stand-alone Ruling Out hearing, is a concept that worries me. If one looks at an analogous situation of whether a separate finding of fact hearing is required,
RE A County Council v DP, RS, BS by the children’s guardian  where MacFarlane LJ said:
“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”
I am not sure that the merits of what can be achieved at what I would call a North Yorkshire hearing rather than the shorthand (which I suggest is misleading) of a Ruling Out hearing, can justify it as a stand-alone hearing where no other important issues are being resolved.
Now, your worships, I invite you to list this matter for a “ruling out” hearing, in line with the High Court authority of North Yorkshire…