Harrison Engler represented a mother, who successfully appealed a District Judge's case management decision about the involvement of the local authority in private law Children Act proceedings.
Background
In February 2024, the parties separated and proceedings began shortly afterwards concerning the care of the children. The mother alleges a long history of physical abuse by the father during the marriage. She obtained a Non-Molestation Order in February 2024.
However she alleges that the father has continually breached it by contacting the children. She also claims that he has manipulated the children into making allegations about her to the police and children’s services.
The father alleges that the mother’s allegations are entirely fabricated and she has misled the court.
Section 37 report
A section 37 report by the local authority raised no concerns about the mother’s basic care of the children, and stated that no public law proceedings were required.
The report recommended interim supervised contact between the father and the children. The father sought unsupervised contact and the mother sought no contact.
Directions were made at a hearing in June 2024 for a fact-finding hearing and a further urgent hearing (with the mother to attend remotely) to consider an interim occupation order and interim contact.
At that urgent hearing in July 2024, the District Judge:
- refused to conduct the hearing as a hybrid hearing, meaning that the mother could not attend.
- directed for a further urgent hearing at which the local authority would be directed to attend, on the basis that where both parties alleged serious manipulation of the court and the children an Interim Care Order might be the “only viable option” - that hearing would take place on the basis of submissions only.
The mother sought to appeal the judge’s case management directions.
Her appeal was made out of time, beyond the 7-day limit prescribed for appeals against case management decisions in FPR PD30A.
Grounds of the appeal
On the mother’s behalf, Harrison applied for permission to extend time, permission to appeal, and argued against the judge’s case management decision on the following grounds.
- Ground 1: the decision was outside the ambit of the judge’s discretion and was plainly wrong because the judge had taken the case off the previous ‘track’ of directions and the urgent hearing directed by the judge could have no possible purpose. It was inappropriate to direct the local authority to attend and raise the spectre of an interim care order.
- Ground 2: the decision was irrational because the judge based her decision on hypothetical applications of the parties’ case and the judge failed to place sufficient reliance on the section 37 report.
- Ground 3: both parties’ Article 6 and Common Law rights were infringed. The judge refused without reasons to conduct a hybrid hearing; although the mother had given full instructions to counsel, these were inapplicable once the judge took the hearing ‘off track’.
At a hearing in the East London Family Court in August 2024, Her Honour Judge Suh granted permission to extend time and permission to appeal, and set aside the previous case management decision.
HHJ Suh noted the “high barrier” applying to appeals against case management decisions, as set out in Re TG (A child) [2013] EWCA Civ 5 [2013] 1 FLR 1250 and Re B (A Child) [2012] EWCA Civ 1742 [2013] 1 FLR 963. HHJ Suh granted the appeal and noted:
- The decision not to conduct a hybrid hearing was a serious procedural irregularity as the mother could not respond flexibly to counsel and give instructions. Whilst this is tenable where a hearing stays within its stated purpose, the hearing in fact took a different turn.
- It was wrong for the District Judge to derail the previous case management put in place. The introduction of the local authority was not part of a planned case management strategy and would not assist in the resolution of the issues of fact.
A further hearing was listed to determine interim contact and a timetable towards a fact-finding hearing.