Family Law Hub

B (A Child) [2012] EWCA Civ 1742

  • In a tweet: Robust case management has a place in family proceedings but it also has its limits OR The court does have the discretion not to hear admissible evidence 

    Summary:  This case concerned S, who was five years old. The appellant was her mother ("M") and the respondent, her father ("F"). M and F had separated when S was about two years old. S lived with M and contact arrangements were, at first, amicable. However, difficulties arose and, in 2011, F issued contact proceedings.  

    What F did not know when he made his application was that the local authority were concerned about S because of M's new partner, Mr C. Mr C was also the father of M's two younger children. However, learning something of the issues to do with Mr C, F subsequently applied for residence of S. S was made a party to the proceedings and the CAFCASS officer who had been reporting on the case was appointed as S's guardian.  

    The local authority carried out a risk assessment with regard to Mr C. The assessment report recorded that there appeared to have been serious domestic violence between Mr C and his previous wife including credible allegations of violent assaults by Mr C on three of his older children. The social worker considered that there were strong indications that Mr C could pose a future risk of physical and emotional harm to the children. It was acknowledged that there was no record of domestic violence between M and Mr C; however, there were concerns about Mr C's capacity to engage in any therapy to help him understand issues such as the impact of domestic violence on children. There were also concerns about M's ability to safeguard S from the risk posed by Mr C because she appeared to be of the view that there was no problem.  

    Both the local authority and the guardian concluded that it was not possible for S's needs to be met if Mr C was present in M's house. In March 2012, the guardian recommended that S should live with F unless M and Mr C separated. However, although Mr C continued to live with M, no one applied for residence to be transferred as a matter of urgency. Shortly after a directions hearing in June 2012, M and Mr C told the local authority that they were separating.

    F continued to pursue his application for residence. By September 2012, the guardian's recommendation was that, provided M undertook not to allow S to have any contact with Mr C, there should be a shared residence order, with the practical arrangement that M continue to have care of S for the majority of the time. It was stipulated though that, if S was brought into contact with Mr C, there should be an immediate transfer of residence to F.  

    F also changed his position in light of the guardian's recommendation. He was prepared to accept a shared residence order with S staying with him on alternate weekends, each Wednesday and for a portion of the school holidays.  

    M meanwhile was unable to accept the guardian's recommendations. She was not prepared to give an undertaking that she would not bring S into contact with Mr C and she sought a sole residence order in her favour (although she agreed with F over the actual division of S's time between the two households).  

    At the final hearing in October 2012, the issue before the court was whether or not there should be a shared residence order and whether or not an undertaking from M was needed. Just before that hearing, whilst S was staying with F, she said various things to him which suggested that, far from M and Mr C having separated, Mr C was still playing a part in S's day to day life. F instructed a private investigator to observe M's house; the private investigator saw Mr C at M's property. At the same time as this was all going on, a social worker visited S at school; he reported that S had said that Mr C was staying at M's house.  

    When the social worker confronted M, apart from admitting that Mr C had been at her house on one occasion, both M and Mr C (who had been at M's house when the social worker had attended) both denied the information that had emerged from the private investigator and S.  

    All these last minute goings on placed the parties in a difficult position and the judge had to decide what to do in response to them. The new information was of great significance given that the guardian had made plain that if it was established that there had been "unofficial" associations between M and Mr C, she would be recommending an immediate transfer of residence.  

    M's position was that Mr C had not been in contact with S or at the house except in accordance with the arrangements for him to see his two children. M wanted to assemble evidence to demonstrate that; this included calling Mr C to give evidence, calling other witnesses and presenting documentary evidence to support her case that Mr C had not been at her house on the dates alleged.  

    The first instance judge had been anxious about S's situation; he considered that there had to be findings about what the position in relation to Mr C really was. He decided to use two days of the four day final hearing to make those findings but indicated from the very start that that part of the case had to conclude by the end of the second day. He regulated the proceedings to ensure that that was achieved. He heard evidence but only from M, F, the guardian, a social worker and the private investigator. He refused M's request to hear from Mr C or to hear from the social worker who S had spoken to. At the end of the hearing, the judge found that Mr C was living at M's home and followed the guardian's recommendation that S should be moved immediately to live with F. He emphasised that this was interim relief only and a review hearing was listed.  

    M appealed on a number of grounds all of which went to the first instance judge's rigorous case management of the hearing which, she alleged, had resulted in unfairness being caused to her. Further, even if the finding of fact was safe, M argued that the transfer of residence had been wrong as an exercise of discretion because the question of what to do next required more sophisticated consideration.  

    Held: M's appeal was allowed.  

    Lady Justice Black, in giving the leading judgment, acknowledged that judges making case management decisions had a very wide discretion. However, in this case, it was clear that the judge's decisions had not only deprived M of the opportunity to answer the case against her but had also deprived the court of evidence that was necessary to enable it to make reliable findings of fact. The judge's finding of fact was overturned and directions were given for the matter to be reheard before a different judge.  

    When making findings of fact, the court's focus has to be on an analysis of what evidence is necessary to enable proper findings to be made. There may be good reasons why normally admissible evidence should not be heard (for example, it has been produced too late in the day); however, this is nor what had happened here – the judge had decided to decline to hear evidence from a material witness for a reason not related to their evidence. Mr C was a material witness and the decision to refuse to consider his evidence could not be supported.

Case note, published: 08/01/2013

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Published: 08/01/2013

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