Ruth Cabeza leading Anita Rao appear before the Court of Appeal in challenge to ex-tempore judgment handed down following fraught care and placement proceedings

November 16, 2016

In this appeal against placement orders made in respect of two children, the Court explored the challenges facing first instance judges in giving ex tempore judgments in care proceedings in the context of the guidance handed down in Re B-S [2013] EWCA Civ 1146.

Focussing on whether the first instance judge had failed to give proper consideration to whether a placement order was in the best interests of the children, Lady Justice King (with whom Hallett LJ and Elias LJ agreed) found that she had not. There had, in the Court’s view, been insufficient consideration of the pros and cons of long term fostering as compared to adoption.

In so finding, Lady Justice King noted the “very great pressure under which care judges operate”. Citing counsel for the Respondent, she acknowledged that “should care judges feel that their judgments are to be examined with a level of scrutiny which render it impossible for them to give ex tempore judgments, the family courts, already under intolerable pressure, would collapse under the strain”.

Nonetheless, it remained the task of such judges to consider and address in judgment all the “realistic options” for placement – a “heavy” burden “particularly where, as here, a parent, entitled to legal aid, chooses to represent themselves”.

This observation applied with equal force to local authorities, who the Court noted were under an “absolute obligation” to ensure the lower courts dealt with all relevant matters to the welfare determination, “even when in doing so they might be seen to be undermining their forensic goal”.

Ruth Cabeza and Anita Rao acted for the Respondent local authority.

A copy of the judgment can be found here.