Court of Appeal says judge was wrong to terminate care proceedings at Issues Resolution Hearing in case with “dreadful history of delay”

In Re H (Final Care Orders at IRH) [2025], Lord Justice Cobb, with whom Lord Justice Phillips and Lord Justice Green agreed, said: “The judge was plainly concerned at the IRH about the undue delay, and she was right to be so.

“[…] However, 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. […] In this case, the solution to the procedural disarray of this protracted litigation did not lie, in my judgment, in the summary termination of the proceedings at the IRH in a manner which was procedurally unfair to the respondent parents.”

The case concerned three boys aged between nine and three: L, Y and N. Care proceedings under Part IV of the Children Act 1989 had been issued by the Family Court in early 2023.

Cobb LJ noted: “[The] proceedings were in their 128th week when they were listed for an Issues Resolution Hearing before Her Honour Judge Shanks in June 2025. We were told that this was the twelfth hearing within the proceedings; by the time of this hearing, the filed documents exceeded 1,700 pages.”

The local authority, supported by the Children’s Guardian, encouraged the judge to make final care orders at the IRH. The parents opposed the making of final orders at that stage, and invited the judge to list the applications for a final hearing.

The judge heard brief oral submissions, and made final care orders.

Cobb LJ said: “It is against the final orders made in relation to Y and N that the Appellant, who is the father of N, and was for a period of time the main carer for Y (and hereafter is referred to as ‘the father’), appeals to this court.”

Permission to appeal was granted last month and the appeal was listed as a matter of expedition. The father was supported by the children’s mother.

Outlining the background to the case, Cobb LJ said that the mother and father separated when N was only two months old. N was their only child together. N remained living with his father, while L and Y continued living with their mother.

During 2022, safeguarding concerns were raised about the welfare of L and Y. Police Protection Orders were made in respect of L and Y in January 2023, and they were removed from their mother’s care. The local authority thereafter issued care proceedings, and interim care orders were made.

Against a backdrop of safeguarding concerns about the father’s misuse of drugs, and his chronic excessive use of alcohol, the local authority issued care proceedings in respect of N in February 2023.

In doing so, it did not seek the removal of N from the father’s care; instead, it sought and obtained an interim supervision order, on the basis that it would offer practical support to the father in his care of N.

In September 2024, following a positive assessment conducted by the local authority, and with the approval of the Family Court, Y was moved from foster care to join N in the care of the father.

In December 2024, the father attended the boys’ school to collect them at the end of the school day, and was observed to be drunk. The local authority was notified, and obtained the father’s agreement to the accommodation of the children over the Christmas period.

The next mont the local authority sought and obtained an interim care order in relation to N. N was placed with his paternal grandmother, while Y was placed back with his foster carers.

Cobb LJ said: “During the spring of 2025, the father underwent community-based treatment for alcohol misuse; it is the father’s case that from early-March 2025 he has maintained total sobriety. Subsequent hair strand testing appears to offer some support for this claim.”

During early 2025, special guardianship assessments were undertaken of the paternal grandmother and her partner as potential long-term carers for N. In that process, concerns were raised about the paternal grandmother’s partner’s responses to issues of historical sexual abuse within his own family, albeit he was not identified as the perpetrator of that abuse.

Further focussed work on sexual risk was commissioned, and this was ongoing at the time of the IRH.

Assessment was also undertaken of the paternal grandmother’s partner’s daughter (and her partner) as special guardians for Y. Subject to the outcome of DBS checks, this assessment was positive.

The IRH was listed for June 2025. Following submissions, the judge gave a short ex tempore judgment.

The essence of the judge’s decision was contained in the three concluding paragraphs of the judgment as follows:

“Of course I understand that [the father] and [the mother] love these children very much indeed but these are children who cannot simply be left waiting to see if [the father] can do it. When I say “do it” I mean can he sustain change which the papers show is change only recent and I refer again to relapses admitted by [the father].....a short time ago and him saying no drink since March 2025 and that is against a significant background of alcohol misuse.

“It seems to me that these children deserve a final decision now and that there is sufficient evidence to make that final decision now. I make final care orders in respect of both [N] and [Y]. […] The order is both necessary and proportionate to secure the welfare of each of these children who deserve to have a settled life; to know where they are. Even at their respective ages they will know that they have had moves around during their lifetime and they have an overwhelming need for permanency. That is what this order is intended to achieve. More likely than not applications for special guardianship will follow.

“In making my decision I have considered the Article 8 rights of those concerned. The orders are necessary and proportionate to secure the welfare of these children. I have considered whether to list the matter for a final hearing. In my judgment there is more than sufficient evidence to enable me to make a final decision now, having listened to each of the advocates in turn and having read the court bundle which now extends to 1784 pages”.

The father submitted the following three grounds of appeal:

1. That it was wrong for the judge to make final care orders at the IRH;
2. That it was wrong to make ‘short term care orders’ as a prelude to the court making Special Guardianship Orders;
3. The judge’s reasoning was inadequate in declining to list the matter for a full final hearing. In bringing matters to an end at the IRH, she failed to consider the wider welfare issues, did not address the welfare checklist in section 1(3) CA 1989, the merits of the father’s case to resume the care of the boys, and/or Article 6 of the ECHR. She placed inordinate weight on the issue of delay. The judge did not consider the question of contact.

Following the filing of the appellant’s notice, there was a material development in the case. The paternal grandmother unexpectedly died. At the time, she was caring, with her partner, for N.

Discussing the appeal, Lord Justice Cobb said: “The dreadful history of delay in this case, already more than four times longer than the statutory 26 week 'imperative', demonstrates how significantly the proceedings had spiralled out of control by the time of the IRH. The number of hearings and the voluminous documentary evidence, particularly when taken together with the delay, point to persistently ineffective and unfocused case management.

“[…] The judge was plainly concerned at the IRH about the undue delay, and she was right to be so. In her judgment she makes several references to this. It is easy to understand her eagerness to resolve the case at that hearing, and I accept that this was well-intentioned.

“However, 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. In this case, the solution to the procedural disarray of this protracted litigation did not lie, in my judgment, in the summary termination of the proceedings at the IRH in a manner which was procedurally unfair to the respondent parents.”

Cobb LJ observed that the judge had “rightly identified” that the central issue in the case was future risk, and that the local authority’s final care plans for the children had been “predicated on the factual premise” that the parents had not been able to achieve any positive change to their lifestyles that would support the children returning to either of their care.

He said: “However, the father had filed evidence maintaining that he could demonstrate a contrary position, with evidence (including from professionals working with him, and hair strand testing), that he had made significant strides successfully to rehabilitate from his alcohol misuse.”

Secondly, Cobb LJ noted that it appeared the local authority had “not signalled any prior intention to seek final orders at the IRH”, and had, in fact, indicated a contrary position in its position statement.

Thirdly, he noted that the evidence was “incomplete” at the IRH, as the time for filing the final assessment report on the prospective long-term carers for N had not yet passed.

He said: “While all other indications were positive, it was not clear what the further court-ordered assessment may show in relation to sexual risk of the grandmother’s partner, and how it may affect the shape of the plans going forward.”

Fourthly, he said: “Before making a care order, it was the judge’s duty to 'consider the permanence provisions of the section 31A plan for the child concerned' and specifically the issue of contact. […] The judgment offers no more than a perfunctory endorsement of the care plan for contact.”

Concluding the case, Cobb LJ was satisfied that the judge was wrong to terminate the proceedings at the IRH.

He said: “[…] The judge’s rationale for concluding these proceedings at this contested IRH is contained in two short sections in paragraph [16] and [17] of the judgment. In short, the judge felt that she had 'more than sufficient evidence' on which to make a final decision. However, this did not begin to explain:

1) Why she had taken the view that it was not necessary or proportionate for the court to determine whether the father had achieved sobriety and maintained it for a period of time; if he was indeed sober, it was surely incumbent on the judge to address why this did not constitute “positive change to [his] lifestyle[s] that would support the children returning to [his] care”.

2) Why it was possible to conclude the case before all of the evidence had been filed (namely the sexual risk assessment in relation to the future carers of N and the DBS checks in relation to the future carers of Y).

3) How adoption (which may arise under the contingency care plan) could in the circumstances be the proportionate outcome for either or both of the children.

4) How this summary outcome met the parents’ rights to a ‘fair’ (Article 6 ECHR) and ‘just’ (rule 1 FPR 2010) determination, given their opposition to summary disposal.”

Cobb LJ accepted counsel for the father’s argument that the judgment suffered from a number of “incurable flaws” in its review of the wider welfare aspects which informed the final orders made.

He said: “My views on Grounds 1 and 3 of the Notice of Appeal are sufficient to dispose of the appeal. I express no concluded view on whether, had all other matters been appropriately addressed, the judge was right to make care orders which were likely, on the local authority plan, only to be short term, though note the similarity between the situation which obtained in this case, and that in Re P-S.”

Allowing the appeal and making final remarks, Cobb LJ said: “We have already indicated that the care orders in relation to N and Y will be discharged, and substituted for the time being by interim care orders pending further hearing at the Family Court. The application for care orders will be remitted forthwith.... for urgent case management..... It is, of course, highly regrettable that the appeal process has added yet further to the delays.

“Although the father has succeeded in persuading this court to set aside the care orders concerning N and Y at this stage, I would not wish him to take any specific encouragement from this outcome in his ambition to care in the long-term for either or both of the boys. His case at the final hearing will require careful examination on up-to-date evidence.”

Lord Justice Phillips and Lord Justice Green agreed.

Lottie Winson