Re G (Children: Fair Hearing)  EWCA Civ 126 https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html
This case deals with the court’s approach to duress and is a helpful Judgement, especially paragraphs 22 – 28, which are of more general application. The case demonstrates how rare it would be for the court to make findings of fact at an interim hearing when considering whether to make an Interim care order.
The Court of Appeal has warned that Judges must be careful not to put unreasonable pressure on parties following a finding that a mother’s consent to a care order was secured by ‘oppressive behaviour’.
The mother claimed that she was subject to ‘improper judicial pressure’ at a family hearing in Sheffield earlier this year, in which Her Honour Judge Elizabeth Carr QC made unopposed interim orders for two young children. The mother ‘became distressed’ at what had occurred.
Lord Justice Peter Jackson said the case before the appeal court was about the process. He said: ‘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.’
Lord Justice Jackson said he regretted that ‘what occurred in this case fell well outside the proper exercise of the court’s powers’. Her Honour Judge Carr ‘rightly appreciated’ that the urgent application had to be decided that day. Lord Justice Jackson said he would not have criticised her for considering making a short-term holding order, with evidence to justify a longer-term order being taken later. ‘However, this is not what happened,’ he said. ‘The judge was hearing an application issued that day, with the parents arriving at court for the first time, the social worker and the guardian knowing little of the fraught family history, and the mother being represented by inexperienced counsel.’
The judgment states that before the mother’s counsel could tell the Judge his instructions were to contest the order, Her Honour Judge Carr said: ‘…if it is heard today I shall certainly make findings that your client will be stuck with’. Lord Justice Jackson said the only conclusion the mother could draw from this and similar statements ‘is that the Judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run’ and when the mother’s counsel attempted to put a small part of his client’s factual case, he was ‘met with derision’.
It was noted that Her Honour Judge Carr also ‘made an entirely gratuitous statement 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”‘.
Lord Justice Jackson ruled that the material before the appeal court ‘amply substantiates the appellant’s case that her consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the Judge in the form of inappropriate warnings and inducements.’
In the Court of Appeal Mr Justice Moor agreed. He urged courts to 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’.
Of note in the Judgment is one of the conclusions that “rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing”
Vice Chair SAHCA
Consultant Solicitor Advocate at TV Edwards LLP