1COR pupil Leanne Buckley-Thomson analyses the judgment in Re B (a child).
The case of B (A Child) concerned applications for residence made by both a young single mother and the maternal grandmother in respect of a child of just under three years of age. On 14 March, the second occasion upon which the matter came before the Court, in addition to making orders for interim contact and directions Her Honour Judge Plumstead sitting at Cambridge County Court made an order that:
‘There shall be a Residence Order in favour of the Respondent Mother when she has been allocated suitable supported accommodation for herself and the child and this accommodation has been approved of by Social Services.’
The order was made only 15 days after the mother’s application and 14 days after that of the maternal grandmother. The maternal grandmother obtained leave to appeal the decision. The appeal was heard by Lord Justice Hughes, Lord Justice McFarlane and Lord Justice Thorpe.
The maternal grandmother challenged the order on the basis that it had been made prematurely without either proper evidence or proper argument. The principal purpose of the hearing on 14 March had been to deal with contact.
In response Counsel for mother argued that the order was no more wrong than that of the District Judge at first instance. It was argued that, as observed by Lord Justice Wilson in Re C (Contact: Conduct of Hearings)  2 FLR 289, Judges exercising jurisdiction in relation to children had a much broader discretion in the mode of their conduct of the hearing than Judges exercising conventional civil jurisdiction. Finally it was submitted that no unfairness arose in dealing with the matter despite the hearing having been listed to deal with contact as the position had changed due to mother’s cross application.
Consideration of the evidence
Lord Justice Hughes gave the lead Judgment. His Lordship remarked that, save for the applications themselves, there were no written statements nor any other material available to Her Honour Judge Plumstead save for a handwritten letter from the mother’s older sister which suggested that in the past the mother had indicated her wish for the child to remain with the maternal grandmother for the time being [Lord Justice Hughes, paragraph 5]. It was acknowledged that the hearing on 14 March was intended to address ‘immediate contact arrangements’ and that the District Judge’s order at first instance was clearly no more than a holding order.
In respect of Her Honour Judge Plumstead’s conduct of the hearing, Lord Justice Hughes acknowledged that though she had conducted the hearing ‘entirely by way of judicial question and advocates’ answer’ [Lord Justice Hughes, paragraph 8] her inquiries were ‘thoroughly sensible and directly to the point’ [Lord Justice Hughes, paragraph 10]. The Judge had been told at the outset that it was understood that the social worker’s recommendation would be for a 12 week assessment with the child remaining in the maternal grandmother’s care. Despite this, Lord Justice Hughes noted that the Judge had, only a page and a half into the transcript of 15 pages, ‘made it abundantly clear’ that she regarded it as inevitable that the child should be placed with her mother immediately [Lord Justice Hughes, paragraph 10], had expressed the view that if the mother had a suitable place to live the child ‘ought to be living with her mother, rather than her grandmother’ [Lord Justice Hughes, paragraph 12], and had remarked that ‘it is about time things started adapting across’. Still very early into the proceedings, the Judge said that she was going to direct that the child ‘live with her mother from the date when supported accommodation, which is not to be shared, becomes available’ [Lord Justice Hughes, paragraph 13], maintaining her position despite the grandmother attempting to personally raise objections and her counsel only being given the opportunity at the very end to observe that she did not consent. It was only after announcing her decision that the Judge asked the social worker whether he would have welfare concerns if she made such an order to which he said he had none whatsoever [Lord Justice Hughes, paragraph 17].
Lord Justice Hughes acknowledged that such family cases ‘frequently call for an active interventionist approach on the part of Judges’ [Lord Justice Hughes, paragraph 18]. However, whilst he accepted that it was ‘at least possible’ that it would turn out to be the case that the child ought to live with her mother, the difficulty was that ‘the Judge simply did not have the material on which to make that decision and, even more, had heard no real argument about it’ [Lord Justice Hughes, paragraph 19].
In holding that the residence order must be set aside, Lord Justice Hughes set out his specific reasoning at paragraphs 20 and 21 of his judgment:
- She made the decision without any real evidence.
- She made it by overriding the social worker’s proposed oral suggestion. If it had been properly debated that would have been open to her but it was not.
- The order was made at a hearing clearly designed as a short one to resolve interim contact therefore nobody had come prepared to deal with the issue the Judge was resolving.
- The order involved moving the child.
Lord Justice Hughes emphasised that he did not think Her Honour Judge Plumstead had suggested that a mother’s status as a parent gave her rights which governed the outcome of an issue as to residence thereby misunderstanding the decisions of Re G  UKHL 43 2 FLR 629 and Re B  UKSC 5. His Lordship did think that the Judge had assumed that there simply had to be in the interests of the welfare of the child an immediate order for residence with a view to assessment. Although she had acted ‘out of the best possible motives’ she had moved ‘too fast’ [Lord Justice Hughes, paragraph 22]. His Lordship noted that whilst in Re C [above] the Judge did have a great deal of latitude and a vast experience of child cases, she had exceeded her powers on the facts of the case; he concluded that Her Honour Judge Plumstead had done the same. The fact that mother’s cross application had changed the position did not solve the problem that no one was at the hearing prepared to address the particular issue.
Family practitioners will be keenly aware of the importance of avoiding delay in family proceedings, enshrined in s1(2) of the Children Act 1989. Indeed concerns surrounding the delay in family proceedings have been drawn further to the forefront of the minds of practitioners and Judges alike since the Family Justice Review Final Report which criticised the amount of time cases take to resolve, not only in public law proceedings but also in private law matters where cases were found to take an average of 32 weeks leading to further entrenched and temporary arrangements. It is in this context of heightened awareness surrounding delay that this case should be considered. In his consenting Judgment Lord Justice McFarlane was clear that decisions such as this should not deter the Court from making a determination of the sort that was made in this case at an early stage in proceedings where it is ‘satisfied that it has the material necessary to determine an issue, and after the Court has conducted a fair process, albeit maybe a robust and pragmatic process, during which all parties, particularly those who may oppose the order that the Court has in mind, have been heard’. The key to Lord Justice McFarlane’s comments is that the Court must have the necessary material. Indeed it is a lack of necessary evidence that sometimes leads to increased delay in Family Courts. With the ever increasing pressure placed on Judges over timescales it is important that the Court does not allow such pressure to override the necessity for the material and robust process Lord McFarlane refers to.