Mother wins interim care orders appeal over oppressive behaviour of judge

A Family Court judge was wrong to bring pressure on a mother to accept an interim care order, the Court of Appeal has decided.

In G (Children: Fair Hearing), Re [2019] EWCA Civ 126 Lord Justice Peter Jackson said what occurred in the original case heard by Her Honour Judge Carr “fell well outside the proper exercise of the court's powers”

Agreeing, Mr Justice Moor said: “We were told that it was commonplace in certain courts to warn parents that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute.

“The implication was that these findings would then stand for all time.”

Moor J said this was wrong as Section 38(2) of the Children’s Act 1989 does not require the court to make findings of fact to the civil standard, nor to be satisfied that the main threshold document is proved.

He said: “At an interim hearing, rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing.

“Accordingly, we consider that courts, if they do it at all, should be very cautious before making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure.”

The case arose when a mother of two young children appealed because she felt subjected to improper judicial pressure at the hearing that led to the orders being made without opposition.

This followed an incident when she and others went to the home of the children’s father late at night to try to retrieve one of them and police were called after a disturbance broke out

The children were taken into police protection then placed in foster care, where they remain.

Doncaster Metropolitan Borough Council sought the care orders and the case came before Judge Carr, who said: “If I go ahead and make findings - which inevitably I will, because something happened at the house on the 21st of January – she [the mother] is stuck with those, and it could impact on how the police look at it and everything.

“Potentially, the situation is – is very risky for her and I – I say that so that no-one's left in any doubt that if I hear the evidence, which I'm more than willing to do – my list is empty for this afternoon - I shall make findings and she'll be stuck with them.”

The mother’s barrister said he wanted to speak to her and was told by the judge : “She is in a very very precarious position…this is a case where, inevitably, I'm going to make findings, and it doesn't take rocket science to realise that if you grab a child in the – late at night when that child should have been in bed asleep - that that is significant harm. I don't think there's any question about it.”

When the barrister said the mother had had a choice of difficult decisions, the judge replied “oh nonsense”, and reiterated: “I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens.”

The mother agreed to the order but soon appealed, on what Peter Jackson LJ said came down to two grounds: “The learned judge had subjected the mother to extreme pressure amounting to duress and undue influence through her comments in court and impacted on the advice given to her. As a victim of duress she did not freely consent to the ICO. This resulted in serious procedural irregularity.

“The learned judge's comments gave a strong indication she had pre-judged the application and prejudiced a fair hearing, breaching the Mother's Article 6 and 8 rights.”

Doncaster opposed the mother’s appeal, maintaining that both the interim threshold and test for interim removal were satisfied and said it opposed a return to either parent.

Peter Jackson LJ said: “Judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter.

“Measured against these principles, and making every allowance for the realities of practice in a busy family court, I regret that what occurred in this case fell well outside the proper exercise of the court's powers.”

He said that even before the mother’s barrister could manage to tell the judge that his instructions were to contest the order she told him that "… if it is heard today I shall certainly make findings that your client will be stuck with."

These and other remarks by Judge Carr “amply substantiates the appellant's case that her consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements.

“Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity. This ground of appeal succeeds.”

Mark Smulian