Tag Archives: fair hearing

Bullish but not bullying? UNDER PRESSURE

Posted on February 7, 2019 by suesspiciousminds

Couldn’t decide between my two titles here, so you get a job lot.

 

I do like a case name that tells you something about the nature of the case, so G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019) told me it was probably going to be worth a read.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html

 

It involves an appeal from Sheffield Family Court about the decision to make Interim Care Orders involving two children (both said to be young, and one specified as being four). The children had been removed into Police Protection following an alleged fracas where mother had gone to the father’s house after father had reportedly kept the four year old for longer after his week’s holiday contact than had been agreed. The police had arrested mother and members of her family.

 

There was said to have been some history of domestic abuse between the parents, both making allegations against the other.

 

The interim threshold statement referred to the incident on 21 January, the children having been taken into police protection, the reports of past violence between the parents, the father’s lack of cooperation with previous assessments, alleged violence between the mother and her present partner, and a school referral to social services arising from M’s poor attendance. The papers consisted of a statement from the social worker, who had no previous knowledge of the family, and the police protection authorisation record, which described the events of 21 January

 

The case was listed for an Interim Care Order hearing, against the backdrop of the Police Protection period ending that day and thus a decision needing to be made. The Court called the case in, asked for people’s positions, gave some views, allowed a brief period for instructions to be taken, and the mother did not contest the making of the Interim Care Orders.

 

[In fact, she consented, but it is now permissible to appeal against a consent order – that did not used to be the case, but the law changed following some high profile big money ancillary relief cases – ie  CS v ACS 2015  ]

 

My summary above doesn’t quite capture what happened though, hence the appeal. The appeal was on the basis that the views expressed by the Court went beyond robust case management and into undue pressure and that the mother’s decision not to contest the making of Interim Care Orders was as a result of feeling that she would not get a fair hearing.

 

(I note that mother’s counsel, Mr C,  is said to be 2016 call, which means that he was relatively junior and might also mean that he was in his early twenties, although of course some people join the Bar later in life.  Part of the argument at appeal was whether he was in any way to blame, which he was not. I point those things out merely because they MAY wrongly have given the impression that he could be steam-rolled in a way that a barrister with 20 years call would not have been. )

 

Here is a flavour of it – the judgment gives a pretty thorough blow by blow account if people want to read it

 

JUDGE: Yes. Mr [C], what evidence do you what to hear?

 

Mr C: Certainly the – the social worker as a – is a starting-point, depending if the application is to be heard today or on a – on a different day.

 

JUDGE: Oh, it’s got to be heard today. As you know, the PPO runs out.

 

Mr C: Well —

 

JUDGE: — and if it is heard today I shall certainly make findings that your client will be stuck with.

 

 

And

 

 

JUDGE: I should ask, but it’s bound to be supported by the Guardian. If I go ahead and make findings – which inevitably I will, because something happened at the house on the 21st of January – she 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.

 

Mr C: Well, in light of that indication, your Honour, I will probably have a further word.

 

JUDGE: Well, you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father, she undoubtedly retrieved, late at night, her daughter. It may well be that [he] kept the child when he shouldn’t have done. but I don’t know about that yet. It may be something I have to make a finding about – that – what caused her to act in this manner, but 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.

 

Mr C: Well, your Honour, mother’s position would be that it was a – a choice between two difficult decisions that evening —

 

JUDGE: Oh, nonsense.

 

Mr C: — and that she had to take steps to safeguard the welfare of her daughter.

 

JUDGE: No, that’s not the way that you go around it, Mr [C], If that is the preposterous proposition you’re putting to me, it’ll fall on deaf ears.

 

 

And

 

JUDGE: Yes. Mr [C], I’m doing this to try and assist your client, not for any other reason, so it’s up to her.

 

Mr C: Well, I do ask your Honour for the matter to be stood down so that I can take proper instructions rather than rushing the mother into a – into a decision on that.

 

JUDGE: Yes. Well, I must say, father’s taken the only decision, in my view, that he should take, particularly now I know the girls are placed together. I would have had quite a lot to say if they weren’t and it would have impacted on my decision, but father’s taken the only standpoint – obviously I’m not making any findings against him because he’s accepted the inevitable.

 

It’s quarter-past now. I’m very willing to hear this but I want your client to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens. This is not the sort of situation that it seems to me, Mr [C], should be permitted to happen without some consequences.

 

MR [C]: Yes, your Honour.

 

JUDGE: Right, it’s quarter-past now, I’ll give you – no later than 25 past.

 

I don’t know if mum could possibly have persuaded the Court that her actions in going round to father’s house to get her child back late at night were justified and that in any event, it would not be proportionate to put two children in foster carer as a result of that, but it is an argument that she was strongly pressured into not making.

 

At the appeal, the mother’s case was

 

 

14.Ms Helen Compton’s distilled submission to us is that the mother was deprived of a meaningful opportunity to oppose the making of the orders. The judge gave the impression of having prejudged the threshold and the outcome and she exerted undue influence on the mother in a number of ways, including by repeatedly warning her that she would be ‘stuck’ with adverse findings and by threatening to refer the matter to the police and the CPS, something that was bound to place the mother under extreme pressure. Overall, the judge’s approach overbore the mother’s will.

 

 

At the appeal, the Local Authority put the case in this way

 

“Following her discretionary case management powers and with a clear view on the Overriding Objective the learned judge informed the Mother and her Counsel that there was time for the Court to hear the matter as a contested hearing that afternoon and of the possibility of threshold findings being made against her.

 

However firm the learned judge may have been, it did not amount to duress and it was incumbent upon the Mother’s legal representatives to raise these issues with the judge. In the event that judge refused to hear the case at all a judgment should have been requested. In the event that there had been a contested hearing, the Court would have provided a judgment (probably ex tempore) and clarification could and hopefully would have been requested. This matter was agreed and no judgment requested.

 

The learned Judge did state a view on the initial application but this was within her discretion to do. The Learned Judge also provided the Mother with time over lunch to take instructions, further time when Mr C asked for it and stressed that she was willing to hear the case that afternoon. No application was made by the Appellant Mother to seek an adjournment or agree an Interim Order pending listing this matter for a contested interim hearing. This exercising of the Judge’s case management powers did not amount to a breach of the Mother’s Article 6 and 8 Rights.

 

Both parents attended at court represented, the Mother by both Counsel and instructing solicitor. It is perhaps surprising that neither of the Mother’s fully qualified legal team sought to challenge the Judge in the event that they felt the Judge was being intimidating or exerting duress and express their views to that effect at the time.”

17.In her submissions to us, Ms Ford accepts that the transcript shows the judge to have been bullish, but distinguishes this from bullying. She does not accept that the mother was under duress. Professionals are used to judges expressing firm views and they should be able to deal with it, and where necessary stand up to pressure from the bench. There is nothing improper in a judge advising a party of the consequences for them of adverse findings being made at an interim hearing. Ms Ford accepted that one interpretation of the transcript supported the complaints now made; in the end she was not able to suggest any other possible interpretation.

 

The Court of Appeal weren’t very taken with the Guardian’s stance on appeal

 

 

20.Written submissions on behalf of the Guardian merely observe that the mother consented to the order. They do not attempt to address the criticisms of the conduct of the hearing. I find that surprising, as one of the functions of a Children’s Guardian is to take an interest in whether the process that leads to orders affecting the children is a fair and valid one

 

 

 

 

 

Conclusions

 

 

 

 

22.The overriding objective in family proceedings is to deal with cases justly, having regard to any welfare issues involved. The court is under a duty to deal with cases expeditiously and fairly and to manage them actively in ways that include “helping the parties to settle the whole or part of a case”. See FPR 2010 1.1(1), 1.1(2)(a) and 1.4(2)(g).

 

 

23.Judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter. As Stuart-Smith LJ said in Re R (above) at 130:

 

 

 

“A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when they are unwilling to do so.”

24.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.

 

 

25.This was an urgent application, which the judge rightly appreciated had to be decided that day. As she said, she had time available. It was a matter for her, given the practical constraints, as to whether to hear oral evidence: if she had been considering making a short-term holding order I would not have criticised her for not doing so, with any evidence needed to justify a longer-term order being taken on a later date.

 

 

26.However, that is not what happened. The judge was hearing an application issued that day, with the parents arriving at court for the first time, the social worker and the Guardian knowing little of the fraught family history, and the mother being represented by inexperienced counsel. Before Mr C could even 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.” The only conclusion that the mother and her advisers could draw from this and similar statements (“very risky for her”; “a very very precarious position”; “inevitably, I’m going to make findings… – that that is significant harm. I don’t think there’s any question about it.”; “not… without some consequences.”) is that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. The judge then isolated the mother by saying, before learning the position of the Guardian, that “this application is bound to be supported by the Guardian”. When Mr C attempted to put a small part of his client’s factual case, he was met with derision: “Oh, nonsense”; “preposterous proposition you’re putting to me, it’ll fall on deaf ears.” Counsel for the local authority then intervened to say that her social worker couldn’t be questioned about events before she was allocated and that she would question the mother about why she waited until 36 hours after reporting matters to the police before going to the father’s house. Before adjourning at Mr C’s request, the judge further isolated the mother by saying that “the father’s taken the only decision, in my view, that he should take, … obviously I’m not making any findings against him because he’s accepted the inevitable.” Finally, she made an entirely gratuitous statement that “I shall probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens.” Whether or not that was an empty threat is beside the point.

 

 

27.This material 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. It is unnecessary to go on to consider the other grounds.

 

 

28.I also regret that the submissions made by the local authority, either supported or not challenged by the other respondents, show a failure to understand the nature of the overriding objective or the requirements of a fair hearing. The judge’s approach went far beyond “firmness” and cannot possibly be described as “assisting” the mother. Similarly, I would reject the suggestion that the fundamental unfairness of the hearing could have been cured by a more assertive response by the mother’s legal representatives. After what happened in the first part of the hearing, it is difficult to see how a fair hearing could have taken place even if the mother had maintained her opposition. The submissions we have received from the respondents show why the appeal needed to be heard. The consequence will be that the local authority’s application for interim care orders will be heard afresh, and not as an application by the mother for the discharge of existing orders.

 

 

29.A further matter, which arose during submissions, requires comment. The judge’s repeated references to the mother being ‘stuck’ with findings is to my mind one of the causes of concern. However, both Ms Compton and Ms Ford told us that this was a warning that in their experience is often given by judges at interim hearings. Neither sought to argue that there is anything improper about this. I do not share that view and I agree with the observations of Moor J on this point.

 

 

Mr Justice Moor, the second Court of Appeal Judge, reminded us that judicial decisions about matters at interim care order stage are not findings of fact, but decisions that on the section 38 standard that there are reasonable grounds to believe (at that stage) that such and such has occurred. That argument of course cuts both ways – it is a lower standard of proof that the Local Authority have to reach (on the balance of probabilities are there reasonable grounds to believe that this happened versus on the balance of probabilities is it more likely than not that this happened) but on the other hand such judicial decisions and views are not set in stone and should not be used in this way to discourage a parent from testing the evidence.

 

Mr Justice Moor:

31.I agree, and add the following in relation to one aspect of the matter.

 

 

32.During the course of the hearing, 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. Indeed, Ms Ford, on behalf of the Local Authority told us that this would be done “to prevent the need to go over the same ground again” later in the proceedings.

 

 

33.It is important to remember that there is a fundamental difference between sections 31 and 38 of the Children Act 1989. Section 31 sets out what needs to be established before a court can make a full care order. Section 38(2) is in very different terms:-

 

 

 

“A court shall not make an interim care order or supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)”.

34.Section 38(2) 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. Instead, the section requires the court to be satisfied that “there are reasonable grounds” for believing that the threshold in section 31 is made out. It follows that, 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.

 

 

35.If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it will say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.

 

 

[If I recall correctly, the Courts have confirmed that this is the case even at a finding of fact hearing, that the findings made are effectively a section 38 finding and that it is vital at the conclusion of the case for the Court to actively consider and determine whether to make the same findings to the section 31 standard. Don’t quote me on that though, because I can’t locate the source authority – I just remember having been surprised to read it at the time. Fact findings always FEEL like a section 31 exercise, not an ‘are there reasonable grounds to believe this?’ exercise]

 

The Court of Appeal continued the interim care orders pending the case being reheard by a different Judge.

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Devon knows how they make it so… necessary

Posted on April 25, 2013 by suesspiciousminds

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word ‘necessary’] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

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“Ex parte removal by the back door”

Posted on March 14, 2013 by suesspiciousminds

A discussion of the Court of Appeal decision in Re L (A Child) 2013

 I will begin this discussion by being frank. I do not like this decision. I do not like it on a train, I do not like it on a plane. I do not LIKE green eggs and ham.

 I feel deeply uncomfortable with it, and hope sincerely that it is not used as precedent for any future decisions. I hope that it rests with the peculiarly unusual facts of this case only.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/179.html

 In very brief terms, the central issue was this. The Court had profound concerns over a number of months about a child and had a wealth of information about difficulties in the parenting provided to the child. The Court, faced with a shift in the Local Authority stance that the time had come to remove the child, used the powers under section 37 of the Children Act 1989 to make an Interim Care Order, which allowed the Local Authority to remove the child.

 So far, nothing terribly questionable. The facts of the case justified the making of an Interim Care Order, they probably justified removal, and the Court had the power to make an ICO under section 37 of the Children Act 1989 although no application had been made.

 My issue with the case is that what actually happened was the Local Authority deciding that if they placed the mother on notice that they intended to make an application for a Care Order / Interim Care Order, that the child would not be safe.  They obtained a hearing before the Judge, to which the other parties were not invited and did not attend and had no knowledge of.

 

The Court looked at the section 7 report prepared by the Local Authority, which made plain their escalation of concerns, their intention to issue care proceedings and their fear of what mother might do if given notice of that intention, heard from those representing the LA and made a section 37 direction and an Interim Care Order, with a view to a hearing being listed at which the parents could challenge that ICO.

 

  1. On 22nd January 2013 I granted Mr and Mrs S permission to appeal. At that time the understanding that they had, together with their counsel, was that at the without notice hearing the judge had, then and there, made the full 8 week interim care order. In the absence of a transcript of all save for the judge’s final “on notice” judgment, the understanding was that the “on notice” hearing that followed was relatively short, concluding in a judgment in which the judge sought to justify the steps that had already been taken at the “without notice” hearing.
  1. For the purposes of the present hearing we now have a full transcript of the without notice hearing and the on notice hearing together with a short memorandum from counsel, Miss Anna McKenna for the local authority, who appeared before Parker J on 14th December and again before us at this hearing. The greater clarity that those materials provide indicate that some time between 1 p.m. and 1.15 p.m. the s 7 report was handed in for the judge to read in her chambers. At about 1.50 p.m. the local authority team went into court for the “without notice” hearing. Miss McKenna’s recollection, which is confirmed by the transcript of the hearing which runs to just over two sides, is that this hearing lasted a matter of no more than 5 minutes. The judge stated that she had read the s 7 report and was contemplating making an interim care order but questioned the power to do it at a without notice hearing. The potential to utilise s 37 is raised by the judge and the scheme that was apparently adopted is encapsulated in one short exchange:

“Miss McKenna: You can make a s 37 placing the child into our care, take the matter immediately and hear inter partes arguments.

Mrs Justice Parker: Including an application for discharge. Could I discharge the care order on that basis?”

  1. There is then a short discussion about security arrangements and the decision that the local authority have taken. The judge then twice states that she is keen to get “everyone in”. At the conclusion Miss McKenna says “may I take it that a s 37 direction has been made?” to which the judge replies “yes, a s 37 direction and a care order, and for the purposes of the transcript I am satisfied that there is a real risk of significant harm to this child if I do not make an interim care order prior to Mrs S understanding that this local authority is wishing to take care proceedings. There is no doubt about that.”

 

 

And the Court of Appeal felt that this was permissible and justified

 

In circumstances where, as I have held, the judge was justified in holding that this child’s safety required immediate protection by means of compulsory removal from her home, a submission that the procedural path chosen by the judge was technically not available to her is only likely to succeed if there is no escaping the procedural points that are made. This is not such a case. The course adopted by the judge is not excluded by any provision in the CA 1989, the FPR 2010 or elsewhere.

Mr Tolson accepts that, in an emergency, the court is not required to follow the pre-proceedings protocol in PD12A. He accepts that if an application had been made either for an emergency protection order or an interim care order it would either be commenced in, or transferred immediately up to Parker J in, the High Court where these long running proceedings were pending (Allocation and Transfer of Proceedings Order 2008, Art 5(3)). Given that M was a ward of the High Court, the local authority would in any event require Parker J’s permission before making an application for an emergency protection order or an interim care order and, before such an order was granted, Parker J would have to order the discharge of the wardship.

Whilst in another case, of course, the alternative steps that I have described could be taken, the fact that an alternative route exists does not mean that the s 37 route chosen by the judge was impermissible. To my mind, the legal requirement for the case to come before Parker J before any application for a public law order could be made, demonstrates the arid nature of the appellants’ technical challenge. Mr Tolson does not submit that Parker J could not have made an interim care order on 14th December or that, if the situation was properly regarded as an emergency, she could not have done so despite non-compliance with PD12A; his submission is simply that a different route should have been followed. It would, in my view, have been permissible for Parker J simply to have made the interim care order upon the local authority undertaking to issue their application that afternoon or the following morning. Finally, if the October s 7 direction had been made under s 37 (as a number of previous directions had been) no jurisdictional issue would exist.

In the unusual circumstances of this case, I am entirely satisfied that Parker J, who had concluded that M’s safety required an immediate order, was justified in using s 37 to achieve that outcome.

 

This is my problem, in a nutshell.  Where a Local Authority wish to initiate care proceedings and they think that the risks of doing so on notice are too great, there is a mechanism for making an application ex parte and having it heard before a Judge.

 The mechanism is to make an ex parte Emergency Protection Order application.

 And because the nature of such an order is draconian, and because the risks of making an order without the parents being there and represented are so serious and risk a breach of article 6, there are incredibly stringent requirements of the Local Authority, who have to demonstrate extraordinarily compelling evidence to do so, pace RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

It sits extremely badly with me that in private law proceedings (albeit ones that are about to become public law proceedings) a Local Authority can go in and see the Judge ex parte   [not least because they have no locus standi to make any sort of such application] and that a decision can be made which is in practice an ex parte Emergency Protection Order using section 37 of the Children Act, without any of the protective mechanisms of Re X.

I also think, for me, there is a wealth of difference between a Judge weighing up the facts of a case and reaching for section 37, and a Local Authority effectively asking the Judge to exercise the section 37 power to make an ICO without there being an application on the table.

I’ll make it plain, on the facts of this case, which the Court was extremely familiar with, there was a considerable argument that the removal was the right thing to do. There was some very peculiar stuff happening with this poor child, and the watershed moment had been reached.

And I suppose one takes into account that unlike a traditional EPO application where the Court knows nothing of the case but what the applicant tells them, the Court here had a wealth of knowledge.  I have pretty little doubt that HAD the application been framed as an ex-parte Emergency Protection Order application   [there’s sadly quite a bit of song and dance to how you get that heard by the High Court Judge who knows the case, rather than in the Family Proceedings Court] it would have been given and a judgment delivered that would have been safe from appeal. BUT it would have had to have had the Re X safeguards.

Or if the Court of Appeal had said, it is acceptable to use section 37 in this way, but the applicant should have the same duties as set out in Re X and the Court should approach the section 37 request in the same way, where the application is made ex parte.

 I really don’t like this decision, and for me, this is the second recent time that the Court of Appeal have looked at the ability of the Court to make an Interim Care Order (sanctioning removal of a child from parents without the parents having had sight in advance of the Local Authority case and a threshold document) using section 37 as the hook, and have taken a very permissive “the law doesn’t prevent this, so go ahead” stance, rather than focussing on the issues of natural justice and saying that it is a tool to be used with extreme care.

I probably would not have allowed the appeal, since the decision to remove was probably the right one, but would have made it plain that a Court in future faced with any such ex-parte consideration of using section 37, should have firmly in mind the principles of Re X.  

The Court of Appeal don’t, for me, seem to have contemplated that it was never envisaged that the Court would make a section 37 order and ICO without the parents being present or represented at a hearing, because it would TAKE PLACE IN PRIVATE LAW PROCEEDINGS to which they are parties.  It was never envisaged that a Local Authority would be having an ex parte hearing in proceedings where they had no locus (having been asked to compile a section 7 report).

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Robust case management has its place, but it also has its limits

Posted on December 27, 2012 by suesspiciousminds

 

A Christmas dash through  Re B (A child) 2012    (and when WILL the Court of Appeal revert to giving cases helpful names inside the brackets?)

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1742.html

 

 

This is a private law case with the usual cavalcade of allegations and cross-allegations.   In major part, the most serious allegations related to whether the mother had continued a relationship with a man, Mr C, who was suspected of having been very violent towards his own children.

 

The father hired a private investigator to observe the mother, to see whether Mr C continued to be a visitor to (or indeed a guest at) the children’s family home.

 

  1. The hearing started on Monday 1 October. It is now clear that there had been a flurry of activity immediately preceding it.
  1. On the weekend of 14 – 16 September, when S was staying with her father, she had said various things to him which suggested that far from the mother and Mr C having separated, Mr C was still part of day to day life. S said that:

i) Mr C had cooked her tea the night before she came to stay with her father; she came to stay on Friday 14 September so that would have been on Thursday 13 September.

ii) She had been swimming with her mother, E and A, and Mr C; A was born on 23 August 2012 so if she was right, that must have been a recent occurrence.

iii) She sometimes had to sleep with E because Mr C was sleeping in her mother’s bed with A; again, given the presence of A in the account, that must have been a recent occurrence.

  1. The father instructed a private investigator to observe the mother’s house. Mr Preece was that private investigator. He observed the premises over the back fence from 18 September to 24 September. A report by him was produced, stating that he had observed Mr C coming out of the back door of the mother’s house on Tuesday 18 September at 08.06 and on Thursday 20 September at 08.05. On Monday 24 September at 15.00, he saw Mr C leave the property and get into a car and drive away. Mr Preece’s report was appended to a statement from the father dated 27 September which was served on the mother just after midday on 28 September, that is the Friday before the hearing was due to start on the Monday.
  1. Also on 28 September, James Green, S’s allocated social worker, visited S at school and talked to her. There is an email from him in which he set out what happened [E11]. It reads:

“S said she has been ill and off school. She said she has been up in the night when sick. I asked her who was in the house. She said Mummy and that A and E were in mummy’s bed. I asked what about [Mr C]. She told me [Mr C] was also there. Also that he was helping her when she was ill last night.

I asked S about swimming. I asked her who goes swimming with her. She told me A, E and [Mr C]. She said [Mr C] has to stay out the pool and watch to look after A [sic].”

  1. The mother was then visited by Mr Green who discussed with her the evidence pointing towards Mr C having been in contact with S. Mr C was there too. Apart from admitting that Mr C was at the house at 15.00 on 24 September, both he and the mother denied the information that emerged from the investigator and from S.
  1. These last minute developments obviously placed all the parties in a difficult position. The judge had to decide what to do in response to them. It was clear that the matter was of great significance because the guardian made plain that if it was established that there had been unofficial association between the mother and Mr C, she would be recommending an immediate transfer of residence from the mother to the father.

 

 

 

The mother disputed that Mr C had been at the home, other than on the admitted occasion and wished to call a number of witnesses to that effect. In particular,

 

In relation to 18 September, she also wanted to produce documentary evidence in support. Her case was that on that day, Mr C was in Glen Parva near Leicester meeting his son who was being released from the Young Offender Institution there that morning. She was able to produce a form showing that Mr C’s son was being released that day. She also produced a copy of a bank statement of Mr C’s which showed that his Advantage Gold card had been used for a purchase in McDonalds in Leicester that day. However the bank statement did not record a precise time for the transaction. A telephone call to McDonalds had indicated that the transaction was at 9.19 a.m. but documentary proof of that could not be obtained at such short notice. It was common ground that if Mr C had been in Leicester then, the private investigator could not have been seen him at the mother’s property.

 

 

And the credit card transactions could, therefore, have become alibi evidence for Mr C, putting him in another town at the time that the private investigator claimed to have seen him at the mother’s home.

 

[Interestingly, neither the trial judge nor the Court of Appeal seem to me to have criticised the father for taking this step of placing mother under surveillance,  which would seem to me to have been a breach of mother’s article 8 right to private and family life]

 

The nub of the case therefore became, as the Court of Appeal succinctly put it, how the Judge was to manage to fit what would have been four days of litigation into the two days available.

 

  1. It is always difficult for a judge faced, as this judge was, with an urgent decision to take and insufficient time in which to take it. It is a dilemma which family judges regularly have to confront. How they resolve it will depend upon the precise circumstances of the individual case. As this court has often observed, a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.
  1. However, in this case, I am very clearly of the view that the judge’s case management decisions not only deprived the mother of the opportunity to answer the case against her but also deprived the court of evidence that was necessary to enable it to make reliable findings of fact. It is therefore necessary, in my judgment, for the judge’s finding of fact and his consequential orders to be overturned and for the matter to be reheard in front of a different judge

 

 

The Court of Appeal considered that whilst it is open to a Judge to robustly case manage, and determine what evidence is to be called and heard, and to place time restrictions on cross-examination, the way it was done in this case effectively prevented the mother from placing her defence before the Court.

 

They were particularly troubled in the Judge’s decision not to bring Mr C into the proceedings or to obtain his credit card transactions.

 

  1. It appears that the judge considered that he could determine the truth or otherwise of the allegations about Mr C’s presence in the mother’s house through the prism of the evidence of Mr Preece and the mother. He said (§16):

“it seems to me that I have got to grasp the nettle of whether I accept Mr Preece’s evidence or whether I accept mother’s evidence.”

  1. Judges do sometimes have to decide, almost in a vacuum, whether or not to believe a witness. However, this was not such a case.
  1. This is perhaps most clearly demonstrated by the position in relation to Mr C’s credit card. The combination of the bank statement and the preliminary enquiries that had been made of McDonalds suggested that there was a realistic possibility that documentary evidence would be forthcoming that Mr C’s credit card was used in Leicester McDonalds in circumstances which, if Mr C was the user of the card, would make it impossible for him to have been seen by Mr Preece on 18 September. The judge was of course correct in saying that the fact that Mr C’s credit card was in Leicester did not necessarily mean that Mr C was. However, if more detailed bank records did in fact support the presence of the credit card there at the material time, it would have been an important piece of evidence for the judge to include in his evaluation of the totality of the evidence and not one, I think, that could be dismissed as robustly as the judge dismissed it. There would have needed to be consideration of how the credit card got there, if not with Mr C. Mr C’s own evidence would have been particularly important in that regard. And assuming that Mr C did not concede that he had not used the card in Leicester himself, counsel would no doubt also have wished to challenge Mr Preece with the evidence of its use and the impossibility of Mr C being in two places at once, endeavouring thereby to shake Mr Preece’s evidence that he saw him at the mother’s house.
  1. I am troubled by the judge’s comment that he would have been “unwilling to admit Mr C to these proceedings”. It is understandable that the judge wished to keep the focus on S and those immediately responsible for her care. He may well also have had in mind that, as we were told by counsel for the father, Mr C had earlier been involved in the proceedings but ceased to be so when he failed to provide his solicitor with any instructions. However, when it comes to making findings of fact, the court’s focus should be firmly on an analysis of what evidence is necessary to enable proper findings to be made. Of course, the urgency of the court’s decision can sometimes make it imperative that there be limitations on the evidence that is called, however relevant it would be. Similarly, the judge may find himself unable to permit a witness’s evidence to be adduced because it has been produced too late in the day or without regard to earlier case management directions or he may determine that it is disproportionate to the issues to permit reliance on it. However, matters such as those are different from a decision to decline to hear evidence from a material witness because, for some reason not related to their evidence, the witness is not thought to be an appropriate person to participate in the proceedings; such a decision is much more difficult to justify. Here Mr C was a material witness, indeed a central witness, not only on the issue of the bank card but also generally in addressing the allegations that he was present at the mother’s home when he should not have been. Subject to the need to decline to hear Mr C for reasons of urgency (to which I return below), I do not see how the judge’s decision to refuse to consider evidence from him and about the use of his credit card can be supported.

 

 

The Court of Appeal made a suggestion for how the Court could have proceeded in the time available without curtailing mother’s opportunity to present her case against the allegations.

 

  1. The judge was rightly anxious to protect S and conscious of the need to do so without delay. The father submits that the risk to S had increased if the mother was lying about Mr C’s presence in the household and that once evidence came to light to suggest this, the judge had to act. However, it seems to me that the judge needed to consider whether, rather than holding an immediate truncated hearing, there was any other way in which he could safeguard S’s welfare. I got the impression that in fact no one had suggested any alternative to him but a possibility which occurs to me is that he could have ordered that S stayed with her father, possibly under an extended contact order or alternatively a short interim residence order, for whatever limited time was sufficient to enable a fuller hearing to be arranged (see for example Re K (Procedure: Family Proceedings Rules) [2004] EWCA Civ 1827 [2005] 1 FLR 764 as to the circumstances in which interim transfers of residence may be made), either adjourning the case entirely to another day or, if feasible, making a start on the evidence with a view to resuming it at a later date.
  1. Given the option of an extended stay with the father by way of protection for S, I do not therefore see the judge’s choice as a stark one between running such risk as there was to her safety in the care of the mother or determining the factual issues on the material that could be produced and fitted into the two days of court time that were available. It may well be that the anxiety provoked by the impression that those were the only options led the judge to give too much weight to the urgency of the situation and the need to get on with the hearing. The decisions that he took in relation to the material evidence that the mother wished to adduce were no doubt the product of that anxiety but I am persuaded that they were not decisions that were properly open to him in this particular case, even making allowance for the breadth of his case management discretion.

 

The Court of Appeal conclude by stating that the case turns on its own facts, but emphasising that there is a balance in using the powers under Rule 22, and that a fair trial is still essential when using those powers.

 

I should say in conclusion that this appeal turns very much upon its own facts. Rule 22 of the Family Procedure Rules 2010 entitles the court to control the evidence in a case by giving directions. This is a wide power and can be used to exclude evidence which would otherwise be admissible. Robust case management therefore very much has its place in family proceedings but it also has its limits.

 

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