(Court of Appeal, Moore-Bick, Lewison LJJ, Hayden J, 17 November 2015)
Public law children – Final care order – Contact with imprisoned father – Resolution at IRH – AppealThe father’s appeal from final orders made at an interim hearing was allowed.
Case No: B4/2015/1308
Neutral Citation Number:  EWCA Civ 1169
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT AND FAMILY COURT
HER HONOUR JUDGE FINNERTY YO14000308
Royal Courts of Justice
LORD JUSTICE MOORE-BICK VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVSION
LORD JUSTICE LEWISON
MR JUSTICE HAYDEN
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(1) NORTH YORKSHIRE COUNTY COUNCIL
(2) L O
(3) A (a child)
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Ms. J. Bazley QC & Ms. L. Harland (instructed by Watson Woodhouse Solicitors) for the Appellant
Mr. A Taylor (instructed by North Yorkshire County Council) for the 1st Respondent
Ms. Jennie Smith (instructed by Langley Solicitors) for the 2nd Respondent
Mr. James Hargan (instructed by Crombie Wilkinson) for the 3rd Respondent
Hearing date : 14th October 2015- - - - - - - - - - - - - - - - - - - - -
Mr Justice Hayde
This is an appeal arising from orders made by HHJ Finnerty sitting in the Family Court at York on the 2nd September 2014. Though the case had been listed for an Issues Resolution Hearing (IRH) during the course of Pubic Law Care Proceedings, the Judge felt able to proceed to make Final Orders in respect of a range of welfare issues, resulting in the following orders and declaration:
i) A Care Order in favour of the Local Authority, North Yorkshire County Council;
ii) Permission to the Local Authority, to refuse contact between the child (A) and his father (F) pursuant to section 34(4) of the Children Act 1989;
iii) Leave to the Local Authority to apply for a declaration removing responsibility to consult F in relation to A;
iv) A declaration that the Local Authority should be absolved from the statutory responsibility of consulting F in relation to A’s care and their obligation to involve him in the Looked After Children (LAC) consultation process;
v) A non-molestation order (granted until further order) prohibiting F from:
a) Contacting M, A or the maternal great grandmother (MGGM) either directly or indirectly or through any third party except through lawyers or through the Local Authority for the purpose of the letterbox contact;
b) Attending within 100 metres of any address where he knows M and A or MGGM are living;c)Should F meet M in any public or private area he is ordered to leave immediately to a distance of at least 100m away. A power of arrest was attached to the non-molestation order.
The Grounds of Appeal have been drafted in very general terms (even as amended) but the thematic basis, which embraces each of the orders set out above, is identified in Ground 1 of the Appellant’s Amended Grounds of Appeal:
“The Judge was wrong to have made final orders at interim hearing which:
1. Prevent a child from maintaining personal relations with a parent; and
2. Prevent a child having a future determined by which both parents have played a part.”It is argued that at the IRH the Judge was not in a position to conduct the ‘holistic analysis’ of the available options that was required in order properly to do justice either to the interests of the child or the father. In particular, at Ground 3, which is really an amplification of the same point, it was contended:
1.Before reaching the determination that it was necessary and proportionate to the identified risks, that ‘nothing else would do’ the Judge needed to be sure that all the evidence was before the Court. The Judge was wrong to have proceeded to make Final Orders at an interim hearing;
i. Without the court bundle;
ii. Without the father having had notice that the IRH might be dealt with as a final hearing;
iii. Without the father having been produced from prison
iv. Without having heard any evidence or allowed father the opportunity to properly challenge the evidence of the Social Worker and Children’s Guardian;
v. Without some form of contact being tested, the father, having made requests for contact, photographs and for the Social Worker to visit him, had the father having never met A or received any update in respect of his developments except the redacted Care Plans when the child was nearly 5 months old.
vi. Where despite a large number of concessions and acceptances by Father, enough for a court to consider the Threshold Criteria for making s.31 orders was crossed, the Threshold Criteria annexed to the order had only been agreed by the Mother and not by Father,
vii.Without having proper evidence before the court as to the impact upon the child of having no contact with the paternal family."
Further, the Declaratory Relief granted by the Judge is attacked on the separate ground that the Judge lacked a jurisdictional basis to grant such relief and accordingly exceeded the ambit of her lawful powers. No party now seeks to uphold these declarations recognising and conceding their lack of jurisdictional foundation. The Appellant however goes further and contends that ‘even had there been jurisdiction, it would have been wrong to make the orders’. Furthermore, it is asserted ‘the declarations were in breach of the F’s Article 6 rights and were unlawful.’
On 22.05.15 Ryder LJ, on considering the written application for permission to appeal, granted the Appellant permission out of time on the basis that:
“His (F’s) instructions were clear – he did not agree to the effective termination of all contact nor the declaration that was made that purportedly restricted his rights in law as a parent. It is seriously arguable that those orders should not have been made without the father having an effective opportunity to challenge the same. The orders are not adequately reasoned in the judgment. In any event, I am not clear what power the judge exercised to make the declaration.”Summary Background
Given the ambit of this appeal it is unnecessary for me to burden this judgment with an extensive account of the background history. It is important however to identify some of the salient facts.
A. was born 8th April 2014 and was the subject of care proceedings issued by North Yorkshire County Council (LA) on 9th April 2014. At a hearing on 10th April 2014, i.e. when two days old, A was made subject to an Interim Care Order and was placed with his mother in Local Authority Foster Care. The mother was 16 years old when A was born, the father 21 years old. Their relationship has been characterised by a disturbing pattern of domestic violence perpetrated by the father on the mother. A pre-birth assessment concluded that M was extremely vulnerable, F declined to engage with the assessment.
On 28.01.14 F was convicted of two assaults upon M, both had been committed during M’s pregnancy (28th October 2013 and 8th November 2013). He was sentenced to a 2-year Community Order and 2-year Supervision Order. On 29th January 2014 a further Community Order and curfew were added to this sentence following a yet further assault on M.
In February 2014 both M and her unborn baby were made the subject of child protection plans under the category of ‘at risk of physical harm’.
On 4th April 2014, whilst heavily pregnant, M was subjected to a very serious assault and falsely imprisoned by F. She attended hospital with bruising and scratching to her face and pain both in her stomach and back. She discharged herself from the hospital, against medical advice.
Four days later, A was born. F attended the hospital and was described by nursing staff as behaving in an aggressive manner. He was asked to leave by hospital staff and was not permitted to return to the hospital building while M was present.
M and A were discharged to a foster placement together and, in order to protect them, an Exclusion Order was applied for and obtained, preventing F from entering the area where they were living. The Local Authority were permitted to refuse contact between A and F and on 25th April 2014 were directed to carry out an assessment of the risk said to be posed by F in the contact situation.
A risk assessment was completed by the social worker, Mr Nick Murray (dated 13.05.15). Mr Murray sets out the escalating level of concern arising from the reports of F’s aggression. In summary:
i) Aggression to M, her family and nursing staff at the hospital immediately following A’s birth;
ii) Shouting and aggression directed to the Independent Reviewing Officer at the Review Child Protection Case Conference on 22.04.14, and aggression to reception staff upon being told to leave the building;
iii) What is reported as extreme aggression by F to his Probation Officer, contributing to the Probation Service’s conclusion that F was a ‘high risk’ and their view that the extant Community Order was unworkable – reported to the social worker on 25.04.14;
iv) Behaviour at the premises of his previous solicitors, reported to the Court, as a result of which they applied to come off the court record.13.Mr Murray carried out an interview with F following which he concluded that the risks of direct contact between F and A were too high even on a supervised basis.14.On 26th April 2014 F was arrested in relation to the incident of 4th April 2014. He appeared before magistrates on 28.04.14 and was remanded in custody.
On 17th June 2014 F pleaded guilty at the Crown Court to an offence of false imprisonment and received a custodial sentence of 4 years. The Court concluded that it was necessary to protect M, A and MGGM from F and imposed a Restraining Order of indefinite duration. The sentencing judge is reported as having described F as a ‘dangerous young man’.
During the course of the social work assessment F acknowledged a history of illicit drug abuse which he appeared to identify as exacerbating his difficulties in containing his aggression and feelings of anger. He also accepted perpetrating violence in a previous relationship, acknowledging a Criminal Caution for assaulting a former partner in May 2011. He appeared to show some tentative recognition of his inability to work with professionals.The Local Authority’s Care Plan and F’s Response
Given the basis of the appeal it is necessary to track some of the key stages in the evolution of the litigation. Prior to the IRH, F had, as directed by the Court, filed and served a statement, dated 27th August 2014. The statement addressed F’s response to the Local Authority’s assessments and Care Plan. In his statement F expresses his agreement to A’s placement with M.
Addressing the question of contact, F states that he would cooperate with a risk assessment upon his release from prison. He accepts that A will not be brought to prison for direct contact:‘Ideally, I would like to receive very regular updates about how he is doing and because there will be so many changes, I would like to see photographs of him so that I can have a bond with my son even though I cannot see him’. Later in his statement :
“I ask the Court to allow indirect contact by way of regular updates and photographs to promote a relationship with my son.”
It is common ground that at the time of F’s statement the Care Plan did not refer to ‘letterbox contact’ or updates to F but by the time of the IRH, the Local Authority’s position was that there should be ‘annual letterbox contact’ from F to A which would be shared with A at an appropriate time and which would include annual updates providing general information about A.
F’s position remained that he aimed to achieve direct contact in due course. However, in the interim, he wished for photographs and for ‘general information’ to be sent to him on a more regular basis than the once yearly provision contemplated by the Care Plan. In respect of indirect contact from him to A, F’s counsel, during the course of exchanges with the Judge, which have been transcribed and included within the appeal bundle, expressed agreement to letterbox contact. F’s counsel observed ‘he wishes for photographs and that is something the Local Authority are not pursuing or offering Father at the moment’.
During the course of exchanges HHJ Finnerty asked the advocates whether there was any objection to the replication of the Restraining Order within the family law proceedings. No objection is recorded as having been made on behalf of F.
The Judge concluded the proceedings with a short extempore judgment which has also been transcribed.The Legal Status of the Declarations
As I have already foreshadowed, none of the advocates seek to salvage the declaration releasing the Local Authority from its obligation, pursuant to statute, to consult F in relation to A’s care and to involve him in the Looked After Children (LAC) consultation process. I propose therefore to address this point first. HHJ Finnerty was sitting as a Judge of the Family Court. Though she is an experienced Judge who sits regularly as a Deputy High Court Judge of the Family Division, she was not sitting in that capacity in this case on the day of the IRH. No application had been made for her to seek permission from her Family Division Liaison Judge or other Judge of the Division to sit as a Section 9 Judge of the High Court. It is plain that, through oversight, no thought was given to the jurisdictional basis of the declaration by either Counsel or the Judge. Such declarations are made pursuant to the inherent jurisdictional powers of the High Court, they have no other foundation. If this had been the sole difficulty here and had they been otherwise sustainable I would, for my part, have been prepared to investigate some pragmatic resolution, perhaps a speedy remission to the Judge inviting her to reconstitute herself in the High Court to authorise the declarations on a free standing application pursuant to the inherent jurisdiction. It may well be that there is no such solution. However, it is unnecessary for me to investigate further as I am of the clear view that the declarations are more generally flawed.
There are sound reasons why declarations are required to be made under the Inherent Jurisdiction and commenced in the High Court. Frequently, as here, they involve authorisation of actions which fall outside statutory obligation or may, again as here, be directly contrary to it. Thus, these are invariably complex issues which require to be dealt with in the High Court. This is given effect to, unambiguously by Rule 12.36 (1) and PD 12D.
In Re B
 EWCA Civ 964, the Court of Appeal considered whether there needs to be a formal transfer where the Circuit Judge is authorised to sit as a s.9 Judge. At para 7, Black LJ observed:
‘Where a circuit judge is to sit as a High Court judge, it seems to me that this needs to be arranged deliberately, with the proceedings commenced in or transferred to the High Court. The mere fact that the judge who has heard the case happens to be authorised to sit as a High Court judge or to try Administrative Court cases might not redeem a failure to observe proper practice.’
I note that Black LJ does not completely exclude some pragmatic resolution, limiting herself to the observation that the matter ‘might not’ be capable of being redeemed. Here, as I have stated, Counsel on behalf of the Respondents all agree that the declarations cannot be sustained for these jurisdictional reasons. However, Ms. Bazley QC on behalf of the Appellant goes much further and attacks the declarations in principle. She begins her critique by pointing to the breadth of the Local Authority’s obligations under s.26 of The Children Act 1989. This provides:
“26 Review of cases and inquiries into representations.
(1)The appropriate national authority may make regulations requiring the case of each child who is being looked after by a local authority to be reviewed in accordance with the provisions of the regulations.
(2)The regulations may, in particular, make provision—
(a) as to the manner in which each case is to be reviewed;
(b) as to the considerations to which the local authority are to have regard in reviewing each case;
(c) as to the time when each case is first to be reviewed and the frequency of subsequent reviews;
(d) requiring the authority, before conducting any review, to seek the views of—
(i) the child;
(ii) his parents;
(iii) any person who is not a parent of his but who has parental responsibility for him; and
(iv) any other person whose views the authority consider to be relevant,including, in particular, the views of those persons in relation to any particular matter which is to be considered in the course of the review;(e)requiring the authority . . . ,
in the case of a child who is in their care
(i) to keep the section 31A plan for the child under review and, if they are of the opinion that some change is required, to revise the plan, or make a new plan, accordingly,
(ii) to consider whether an application should be made to discharge the care order;
(f) requiring the authority. . . , in the case of a child in accommodation provided by the authority
(i) if there is no plan for the future care of the child, to prepare one,
(ii) if there is such a plan for the child, to keep it under review and, if they are of the opinion that some change is required, to revise the plan or make a new plan, accordingly,
(iii) to consider whether the accommodation accords with the requirements of this Part;
(g) requiring the authority to inform the child, so far as is reasonably practicable, of any steps he may take under this Act;
(h) requiring the authority to make arrangements, including arrangements with such other bodies providing services as it considers appropriate, to implement any decision which they propose to make in the course, or as a result, of the review;
(i) requiring the authority to notify details of the result of the review and of any decision taken by them in consequence of the review to—
(i) the child;”
I have included this provision in full because, taken as a whole, it illustrates not only how the consultation and review process protects the rights of parents but how the very existence of these obligations provides a useful and helpful discipline to the Local Authority in its ongoing obligations to ‘Looked After Children’. The objective of the process here is to ensure not only that there is proper planning but that the plan for the child continues to be the correct one, developing and evolving as the child’s needs change. It is to fortify the rigour of review that the section imposes a wide-ranging duty to consult, not least with the parents. Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The requirement to solicit the views of a parent is not contingent upon a moral judgement of parental behaviour; it is there to promote the paramount objective of the statute as a whole, i.e. the welfare of the child. These duties are a statutory recognition of the need appropriately to fetter the corporate parent. The assumption made at the IRH that consultation with F would in and of itself necessarily compromise the privacy of the placement was neither rooted in evidence nor, with great respect to the judge, grounded in proper analysis.
Ms. Bazley submits the case law establishes that a Local Authority may only be absolved from its duty to consult and to provide information to a parent in ‘exceptional circumstances’. I agree.
The duty, pursuant to s.26, is directory not mandatory. But, as Ms. Bazley submits, the result of non-compliance is treated as an irregularity: Re P (Children Act 1989, ss22 and 26: Local Authority Compliance)
 2 FLR 910. Ms Bazley further directs this Court’s attention to Re C (Care: Consultation with Parent not in Child's Best Interests)
 2 FLR 787;  EWHC 3390 (Fam). There Coleridge J granted a declaration to the effect that the Local Authority was absolved, in what were described as ‘exceptional circumstances’, from any obligation to consult the father. In that case the father was serving a lengthy sentence for raping the child, who did not wish the father to be informed or consulted at all in relation to her future. The child had applied, successfully, to discharge the father’s Parental Responsibility. The applications were decided on the basis of C's best interests. The Court concluded that the father's total disregard for C's best interests in committing the offences, coupled with her consistently and strongly articulated wish that he be excluded from her life entirely, led to a clear conclusion that he should not participate in any discussions about her future welfare. Nonetheless even there, the court directed that he would be informed if the Local Authority intended to make significant changes to the Care Plan, such as applying for adoption. Coleridge J observed:
“ The conclusions that I have come to are really these: the considerations which govern the dismissal of this father from further involvement in the proceedings, and the granting of the declarations seem to me to be the same. Indeed, there is little point in him remaining a party if he is not going to be given any information; indeed, it would be impractical for him to remain a party if he was not going to be given information.
 The second pivotal point, of course, is that this application is decided, first and foremost, on the basis of s 1 of the Children Act 1989 – that is to say, what is in S’s best interests. Of course, hers are not the only interests, but they are the ones which are of paramount concern to the court.
 The third factor, self-evidently, is that it is a very exceptional case only which would attract this kind of relief. Self-evidently – and it hardly needs the human rights legislation to remind one – a parent is entitled to be fully involved, normally, in the decision-making process relating to his, or her, child, and if not to be involved, then at least informed about it. However, insofar as that engages the father’s rights to family life, then by the same token it engages S’s right to privacy and a family life.”
The factual background, giving rise to this appeal, though undoubtedly very troubling does not, in my judgement, amount to ‘exceptional’. It is not difficult to contemplate strategies which enable the privacy and security of the placement to be protected by a far less draconian level of intervention. Accordingly, Ms. Bazley submits and I agree that: ‘even had it been lawful to make the declaration, the circumstances of this case were not so exceptional as to justify it being made’.
It is important to reiterate why this head of appeal succeeds on ‘proportionality’ grounds rather than merely ‘jurisdictional’. The dangers arising in consequence of the exclusion of a parent from the statutory consultation and review process may have wholly unanticipated and profoundly serious consequences for the child, who may find himself vulnerable and isolated within the system: see A v Lancashire
 EWHC 1689 (Fam);  2 FLR 803. There Peter Jackson J noted that the very existence of the consultation process acts as a ‘stimulus to good practice’ by a Local Authority.
The second Ground upon which it is contended that the Judge fell into error is her decision to dispose of the case at the IRH, even though she did not have the agreement of the parties on all issues. In the course of argument Ms. Bazley, logically, adopted this point too, in relation to her attack on the declaratory relief, though very much as a fallback position. This point has now been considered in a number of cases. In Re N (A child)
 EWCA Civ 1563,  1 FLR 1244 the Court of Appeal contemplated the circumstances in which it is appropriate to treat a Case Management Hearing as a final hearing. There McFarlane LJ said:-‘The overriding objective in the Family Procedure Rules is to discharge the determination of these cases justly and fairly; that is the requirement borne in also by Article 6. There is a line beyond which it is impermissible for the court to go; that line will vary from case to case and depend on the facts of the case and the proportionate approach to procedure’
In Re S-W (Care Proceedings: Case Management Hearing)
 EWCA Civ 27 Munby P observed:-
‘ Vigorous and robust case management has a vital role to play in all family cases, but as a rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to “deal with cases justly, having regard to any welfare issues involved.’ So, as my Lord has emphasised, robustness cannot trump fairness…
 …An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons)  EWHC 270 (Fam)  1 FLR 1384, para 40, “Justice must never be sacrificed on the altar of speed.”
..a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn……no-one is to be condemned unheard…….A parent who wishes to give evidence in answer to a local authority’s care application must surely be allowed to do so.
….there is the right to confront ones accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so. I agree with my Lady that there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate. ……’
In her judgment in Re S-W
(supra) King LJ distinguished the expectations at Case Management Hearings (CMH) from those at the IRH (see para 35 below). It is important to note that there is an active obligation at the IRH to consider whether the hearing can be used as a final hearing. It is worth emphasising that this requirement has come about in consequence of systemic reform to the Family Justice system, predicated on a wide scale recognition that delay in children cases had become wholly unacceptable and recognised as invariably inimical to the welfare of the subject children. Put another way, the professionals who, with the best of motives, intervene to protect children can also inadvertently cause them significant harm by avoidable prolongation of litigation (I purposefully here use the terminology of s.31(2) of The Children Act 1989). The architects of The Children Act 1989 recognised this danger when, for the first time in any British statute, they imposed an obligation on the parties to avoid delay: ‘the delay principle’. The failure to adhere to that principle, some might say the corruption of it, led directly to the reforms I have referred to and indeed, though less directly, to the creation of the unified Family Court. I restate these fundamental principles to stress the underlying reasons that led the reforms to require a reinvigorated approach to CMH’s generally but particularly to the IRH. There is an obligation at all stages within the case management process but especially at the IRH to consider whether the proceedings can be finalised.
King LJ puts it thus:“The expectation is therefore that a CMH will ordinarily be an essential management hearing designed to get the case in proper order to enable it to be ready for disposal, whether by consent or following a contested hearing, within 26 weeks. This is in contrast to the IRH when all the evidence, including expert evidence should be filed and where, unlike the CMH, the rules specifically require consideration to be given as to whether the IRH ‘can be used as a final hearing. (PD12A: Stage 3 – issues resolution hearing)”
It is also important to consider R.1.1(2) of the Family Procedure Rules 2010 (FPR) (‘the overriding objective’) which provides that:
“Dealing with a case justly includes, so far as is practicable –
1. ensuring that it is dealt with expeditiously and fairly;
2. dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
3. ensuring that the parties are on an equal footing;
4. saving expense; and
5. allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
Underscoring the obligation to consider the proportionality of intervention in relation to the complexity of the issues is R.4.1(3)(o) which facilitates the general philosophy of the Act, by providing that the court may:
“Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”
It is salutary to note that Butler-Sloss P, only two years after the introduction into practice of The Children Act 1989, and in a pre Human Rights Act landscape, emphasised the importance of what we would now refer to as ‘proportionality’, in terms which capture the essence of the concept. In Re B (Minors (Contact)
 2 FLR 1 she observes at para 39:
“Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence. …The considerations which should weigh with the court include:
(1) whether there is sufficient evidence upon which to make the relevant decision;
(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of proceedings;
(3) whether the opportunity to cross examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
(4) the welfare of the child and the effect of further litigation – whether the delay in itself will be so detrimental to the child’s wellbeing that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, particularly D;
(5) the prospects of success of the applicant at a full trial;
(6) does the justice of the case require a full investigation with oral evidence?”
By way of completeness, it is also important to highlight the provision set out in R.12.25(4) FPR:
“Where it is possible for all the issues to be resolved at the IRH, the court may treat the IRH as a final hearing and make orders disposing of the proceedings.”
Finally, the same principle finds expression in PD12A (stage 3 – issues resolution hearing) in which at the IRH “the court considers whether the IRH can be used as a final hearing.” I have rehearsed both the underpinning law and procedure in order to evaluate the Appellant’s criticism of the Judge namely that she did not apply either appropriately or proportionally.
Some of the more detailed criticisms of the Judgment (see para 2 above) are over-scrupulous and do not require individually to be traversed. For example, whilst the Judge may not have had a court bundle available to her, for whatever reason, her short extempore judgment, the transcript of the exchanges with counsel and the chronology of her fastidious case management in her earlier orders, reveal her detailed and accumulated knowledge of the case.
The provision for an IRH is found in the Judge’s order of the 14th August 2014. The relevant paragraph provides:
“9. The matter shall be listed for an Issues Resolution Hearing before HHJ Finnerty 2nd September 2014 at 10am with a time estimate of 1 hour. The parties are directed to attend by 9am for pre hearing discussions.”
In order further to ensure the effectiveness of the hearing the Judge ordered that an advocates’ meeting should take place. It was a very detailed order which requires to be set out:
“10. There shall be an advocates meeting by telephone, arranged by the child’s solicitor, on a date to be arranged no later than Friday 29th August 2014.”
I would also point out that the order provided, as is now good practice, express provision in the event of non compliance; thus:
“In the event that the directions are not complied with the Parties responsible must contact the court and provide an explanation asking for the court to list the matter for directions.”
The entire structure of this Case Management Order, as is clear even from the limited extracts that I have cited, was designed to give effect to the timely and final resolution of the case at the IRH hearing on the 2nd September 2014. Moreover, the detail of the order (which it is not necessary for me further to burden this judgment with) makes it plain that F was clearly on notice as to the Local Authority’s wish to be released from any obligation to consult him in future and its application for permission to refuse contact to him, pursuant to s.34 (4) Children Act 1989. Indeed the order of the 14th August 2014 reveals the Judge already to have heard and rejected such applications on an interim basis whilst plainly keeping them alive for the IRH.
The following uncontentious facts require highlighting:
i) The Care Plan provided for mother and baby to remain together;
ii) No Party opposed the plan;
iii) It was agreed by all the parties that the question of A’s direct contact with F was not an issue for the final hearing, in consequence of F’s incarceration;
iv) All agreed that a Care Order was the appropriate order;
v) All agreed as to the extent to which F should be able to provide photographs / cards to A;
vi) All Parties and the Judge were aware of the indeterminate Restraint Order passed by the Crown Court preventing F from having contact with M (and others);
vii) F had not asked to be produced from custody at any stage in the case.
It is axiomatic that this was precisely the kind of case that had every potential for resolution at the IRH. It was the professional duty of all concerned to ensure that it did. I regret to say that the profession fell short in that duty. The Judge had done everything she could. By contrast, the Advocates’ Meeting appears to have been formulaic and ineffective. It was plain that F wished to have photographs of his son. F’s solicitors had not obtained a Home Office Production Order to facilitate F’s attendance at Court. Accordingly, F’s counsel was not in a position to take instructions on last minute and important details. Ms. Bazley asserts that F repeatedly elected not to come to court because he considered his presence to be an impediment to the mother’s case. The obligation of his lawyers here was to ensure that F’s own case was not compromised by his non-attendance.
It requires to be stated that Court Orders are there to be complied with, they are not aspirational targets. I strongly suspect that if the advocates’ meeting had absorbed the true objectives of the IRH, and F produced at court, this case would have resolved by agreement. Moreover, I have no doubt at all that had there been proper thought given to concluding the case, the advocates would, at the final meeting, have paid greater attention to the legal basis of the Local Authority’s application for a declaration. 
I agree with King LJ in Re S-W
(supra) that a Final Order at a CMH will be appropriate only occasionally. However, the message must go out loudly and clearly that the Court will and must always consider the making of Final Orders at the IRH. It must be understood that it is the professional duty of the advocates and all the lawyers, in every case, to direct their attention to the obligation to achieve finality at the IRH wherever possible. It follows that the lay Parties are always required to attend. If a Party is in custody a Home Office Production Order should be obtained and, if necessary, at the instigation of the Judge.
In granting permission to appeal Ryder LJ considered that this case raised an important issue. Though the Court of Appeal has considered these points before it has been in the context of Judges who have been too robust in concluding cases where evidence required to be tested. This case, for the reasons I have set out, is one of wholly different complexion. It provides an opportunity to signal the cultural shift brought about by the Family Justice Reforms and the particular responsibilities on all involved at the IRH.
Though I regret to say it, where the Judge’s objectives (i.e. to facilitate the potential for resolution of the case) are thwarted by non-compliance with Case Management Orders then this may in future have to trigger the consideration of appropriate sanctions in costs. Such orders are counterintuitive in a court arena where much reliance is placed on cooperation and common endeavour. However, the Family Justice Reforms are not merely administrative; they are designed, as I have emphasised above, to reconnect the profession with a core welfare principle: the avoidance of delay.
The approach of the first instance Judge has been entirely vindicated in this Court. The Parties have been asked to consider whether the key issues were capable of resolution given the very narrow ambit of dispute. It struck me that it would have been hugely disproportionate to adjourn them for hearing before a High Court Judge, as it was submitted the outcome should be.
In the end, the parties were able to agree as to the future progress of both direct and indirect contact and according to the draft order, submitted following the appeal, they have also agreed on how the Local Authority should discharge its statutory obligations. The appeal against the s.34 (4) order, permitting the Local Authority to terminate contact, is effectively abandoned, the following having been agreed:
“A shall have indirect contact with father as follows:-
i) Father may send a suitable card and present for A’s birthday and at Christmas, all cards and presents to be sent via the local authority and be promptly delivered to the child.
ii) Father may include a photograph of himself in each card.
iii) The local authority, alternatively the mother, shall send to father an update on A’s developmental and general progress at least every 6 months;
iv) The local authority shall, within 14 days of the date of this order, send to the father in prison two photographs of A, one taken at or about 6 months of age and one taken at or about 12 months of age.”
Ultimately therefore there remained only one outstanding issue. The Judge granted injunctions against F mirroring the terms of the Restraining Order made in the Crown Court. These orders say Ms. Bazley are either a needless duplication or alternatively may expose F to double penalty. Further, it is contended that the Judge’s reasoning was deficient. I note that F was aware that such orders were being applied for and nonetheless indicated that he did not wish to be produced from custody. Ryder LJ did not, I observe, grant permission on this point. Though Ms. Bazley presses her argument with vigour, it is, ultimately, without real substance. The existence of mirror Restraining Orders in the Family Court enables that Court to take its own protective measures rather then being dependant on decisions by Police Officers and Crown Prosecution Service in a different jurisdiction which may not always move as quickly nor with the same degree of focus on child safeguarding issues. The Judge does not analyse this point in any detail but it is clear that she is identifying an obvious utility in having similar Restraining Orders at her disposal, as she puts it “within the family proceedings” in order best to protect the mother and child. It seems to me that even the use of that short phrase signals that the Judge had in her mind all the relevant considerations. It would be unrealistic to expect her to set out her analysis in the kind of detail that has been argued here, in the context of a busy Family Court list. Furthermore the Judge asked whether there was any objection and none was voiced.
Accordingly, I would allow the appeal and vary the order below to the limited extent of discharging the declarations.Lord Justice Lewison
I agree.Lord Justice Moore-Bick
I also agree.