Introduction
- In his judgment of Re S-W (children) [2015] EWCA Civ 27, Sir James Munby quoted the age-old maxim that ‘justice delayed is justice denied’ but went on to make it quite plain that such can be equally denied “if inappropriately accelerated.” The warning of Pauffley J in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) was indeed echoed: “Justice must never be sacrificed upon the altar of speed”. The question is whether that warning has been acceded to or whether the pressure for robust resolution under the guise of the 26-week timetable has lent to a forfeit in fairness and, in turn, the gentle reminder ten years later in Re H [2025] EWCA Civ 1342. This article will therefore explore Re S-W and Re H, with specific consideration as to when it may be right to conclude at IRH and alternatively, when some questions made indeed need to be asked. The first question being: should we be timetabling to a final hearing?
Re SW
- Although perhaps not for the first time, Re S-W certainly reminded the courts of the basic principles rooted within rule 1.1 of the Family Procedure Rules 2010. At [52], Sir James Munby spelt out that the duty of the court when dealing with cases is to do so “justly, having regard to any welfare issues involved”. Naturally, when considering the welfare best interests of the child[ren], the no delay principle in section 1(2) of the Children Act 1989 will be innately relevant where a parent is inviting the court to delay decision-making in favour of a final hearing. More often than not, that concern will be very validly raised on behalf of the child[ren]. However, that principle of delay should not be applied in abstract or in order to push a matter across the finish line. That is particularly the case where acceding to robust case management fronted by the concern of delay may lead only to further delay in the form of an appeal following what has, in essence, been a forfeiture of fairness.
- Indeed, where a children’s guardian does support the listing of a final hearing, that position should not be met with criticism or an expression of surprise. In Re G [2019] EWCA Civ 126 at [20], Jackson LJ noted the following:
“20. Written submissions on behalf of the Guardian merely observe that the mother consented to the order. They do not attempt to address the criticisms of the conduct of the hearing. I find that surprising, as one of the functions of a Children’s Guardian is to take an interest in whether the process that leads to orders affecting the children is a fair and valid one.”
Whilst Re G concerned the fairness of an interim removal hearing, there must be general applicability as to the role of a children’s guardian and the need to balance welfare and fairness and how an absence of the latter may indeed impact the former.
- Where, then, there is a parent who continues to engage in proceedings, has filed final evidence and seeks to challenge key areas of the local authority and/or children guardian’s case in the face of the removal of their child[ren], matters must be managed fairly. Sir James Munby at [53] stipulated that there are two limbs to fairness insofar as case management is concerned: 1) the instant hearing itself must be fairly managed and, 2) the case management judge must ensure that a fair trial is set down.
- Whether evidence should be heard in a particular case is indeed a decision reserved for the case management judge; however, these powers should take heed to the two principles outlined in Re S-W at [56]-[57]:
“56. First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard: see Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, paras 28-29. As I observed (para 55):
‘The fact, if fact it be, that the circumstances are such as to justify intervention by the State, … does not absolve the State of its duty nonetheless to act fairly. It is not enough for the State to make a fair decision: the State must itself act fairly in the way in which it goes about arriving at its decision.’
A parent who wishes to give evidence in answer to a local authority’s care application must surely be permitted to do so.
57. Secondly, there is a right to confront ones accusers [sic]. 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.” (emphasis added)”
- In inviting the court to list a final hearing, what is fundamental is recognising that no party has an automatic or unfettered right to cross-examine a witness. It is, of course, not the purpose of oral evidence to put every good, bad, and indifferent point in a mere hope that something useful may arise; however, where a parent is able to identify significant areas of challenge, it does appear that the professional analysis should be tested where it may have a material impact on the final decision. That is surely underpinned by the two principles cited by Sir James Munby. A parent must be able to put their case and answer that of the local authority, no matter how ‘seemingly forlorn’ their own appears.
- Focusing on the latter, the court should warn itself against falling into the trap of forming the view that cross-examination would achieve little more than hearing the case on submissions. A parent should not see the local authority’s case taken as read, and the outcome therefore inevitable. Indeed, after ‘confronting one’s accusers’, Sir James Munby outlined that “most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away” [59].
- As regards the applicability of Re S-W, it has been argued that as a case concerning final care orders being made at a CMH, it can be distinguished from circumstances whereby the same are sought to be made at IRH. It is submitted that cannot be correct; case management applies at all stages of proceedings, and case management must always be done justly.
Re H
- Re H further contemplates case management and adjournments at IRH. The judgment specifically refers to the oft relied upon Public Law Outline and Case Management Guidance issued by Sir Andrew McFarlane in 2022. It is highlighted that such guidance is very much important: IRHs must be more effective, and parties should take realistic approaches. Nevertheless, what can be said of the implementation of that guidance is reflected in Cobb LJ’s judgment at [38]:
“38. The benefits of robust resolution of public law proceedings at any stage prior to the final hearing (where evidence is tested) must never be at the expense of procedural fairness and justice”
It is quite clear that the court should not forfeit fair procedure at any stage prior to a final hearing in order to be seen to be robustly resolving a matter. Cobb LJ’s view has to support the notion that Re S-W remains applicable at IRH, that being ‘any stage’ prior to a final hearing. That, too, is particularly pertinent where matters tend to fall under the strain of the 26-week timetable or have perhaps exceeded that. Cobb LJ alludes to such pressure points but highlights that “the solution to the procedural disarray of [the] protracted litigation did not lie in the summary termination of the proceedings at IRH” where doing so was unfair to the parents.
- What Re H does make clear is that where a contested matter is concluded at IRH, the judge is obliged to clearly explain why, including: “Why the IRH has been used as a final hearing, and/or why the proceedings are not being case managed to a further/final hearing, particularly if […] there is a dispute as to whether the proceedings should be concluded at the IRH.” [46]
- The final point of interest raised within Re H is the need for the local authority to nail their colours to the mast, making it clear prior to the IRH that they will be seeking final orders at that hearing. Whilst the local authority had changed their position entirely from not seeking final orders in their position statement to doing so at the hearing, it cannot be fair for a parent to attend a hearing whereby the local authority, unbeknown to them, will invite the court to make final care and placement orders following what will be interpreted as a few short speeches from each lawyer. Cobb LJ explores that context at [40]:
“40. In despatching these long-running proceedings at the IRH in no more than 45 minutes, including judgment (which itself gives every indication of being rushed and improvised) there is a real question whether the listing of the hearing had complied with the letter or the spirit of the President’s 2024 guidance (see §35 above). There should always be “sufficient preparation and hearing time” at an IRH, so that the parties are treated justly and fairly, and no-one is denied the opportunity to attempt properly to resolve the issues.”
- Frequently, the court will accede to the request for an important witness to be cross-examined; however, this may be on the premise that such is conducted during the IRH. Of course, some case management orders will include the provision that the court may hear limited evidence if time permits. However, it is arguable as to whether that also complies with paragraph 2.5 of Practice Direction 12A: “where it is anticipated that oral evidence may be required at the CMH, FCMH or IRH, the court must be notified […] well in advance and directions sought for the conduct of the hearing.” If the intention is for oral evidence to be heard at the IRH, all parties ought to know that is how the hearing is going to proceed. It is fundamental so that no party can be, as King LJ sets out in Re S-W, “caught unawares” [25].
- In any event, even in circumstances where the IRH is listed for two hours, it certainly raises the question as to whether justice can really be done or be seen to be done with off-the-cuff cross-examination of three or four witnesses, submissions, judicial consideration and judgment.
Conclusion
- Both Re S-W and Re H reiterate fundamental points about fairness and the Article 6 and 8 rights of both parents and children in family proceedings. Whilst a drive to finalise at IRH and achieve outcomes for children as soon as possible remains important, a forfeiture of fairness is not requisite to robust resolution and due regard ought to be paid to the proper procedure.
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
