I don’t think that this reported judgment does anything earth-shattering or makes any vital new legal points, but I felt it was interesting to see what’s a known direction of travel regarding pressure on Court time play out in a real case, and one where I think the outcome would have been very different not long ago.
The case involves Lincolnshire County Council, who were the very wise / very foolish Local Authority who took a chance on a wet behind the ears young lad in 1994 and rescued him from being an office finance manager and turned him into a child protection lawyer… So I will always have fond thoughts of Lincolnshire.
Lincolnshire County Council v CB & Ors  EWHC 2813 (Fam) (21 October 2021)
The case involves the death of an 11 year old, and what is to happen with his three siblings, aged 10 1/2, 5 1/2 and 3 . At this stage of the proceedings, those three siblings were living with the grandparents.
The central issue, although there are others, is whether the death of the 11 year old XE was a tragic accident, or caused by a parent. The stakes could not be higher in a case of this kind.
There are four possibilities of truth and outcome (obviously everyone involved works very hard to help the Court be in the best possible position of getting to the truth and that the finding made by the Court about XE is what really happened. But the process is not perfect. So here are the four possibilities
a) This was a genuine accident and the Court find that it was – which reunites the family and is safe
b) This was a genuine accident, but the Court find that it was intentional, which keeps the family apart and is also wrong
c) That this was intentional and the Court find that it was – which probably keeps the family apart and keeps the children safe
d) That this was intentional, but the Court find that it was an accident – which probably reunites the family and puts the children in danger
Each of those are really important for everyone involved, particularly the children. The stakes are high.
The LA and Guardian in this case argued that the case should be listed for a 5 day final hearing, dealing with findings on XE and welfare decisions for the other children at the same hearing, the parents argued for a separate finding of fact hearing and that the time estimate for this was 20 days.
I’m not going to attempt here to analyse who I think was right or wrong – I don’t have enough material or knowledge to do that from just the judgment, but historically, I’d say that a case where the allegation was effectively murder of a child would generally take closer to the parents estimate than the LA estimate. It of course depends on what the evidence and disputed evidence is.
In very broad terms, we are nationally short of Judge time. That was the case pre Covid, and is even more pronounced now. There was a period of time in which it was very hard to conclude proceedings and have final hearings whilst all of the technical issues were happening, so delay in those cases had domino effects on the time other cases took. The Government and statute expects cases to conclude within 26 weeks. Pre Covid we were sort of around that figure, with some more complex cases taking longer. In December 2019, the average length of a case was 33 weeks. March 2021 was an average of 43 weeks.
So a 20 day case has two significant issues – One is that it takes a lot longer to find 20 days of Court time than 5 – for the obvious reason that you need to find a Judge who had nothing to do for a month, and there’s not a lot of that going around. The longer you wait for the hearing, the longer the children have to wait for a decision. The second is that if you allocate 20 days to one case, that’s probably 3 other cases that could possibly have used 5 of those days to conclude their own case, and that makes those 3 cases all need to wait longer. The other side of that coin, as I’ve already indicated is that the four possible outcomes in this case are all really serious for the children and rushing it might make some of the worst options (that the truth and the finding are not the same thing and the children are either kept away unnecessarily or returned to danger with optimism that they are safe) more likely.
So I don’t know which, in this case was the right call. I’d probably have gone for the classic compromise of 10 days.
I’ll instead set out the judicial conclusions, and let the readers come to their own views, particularly in the light of this sort of benchmark how difficult it may be to seek a final hearing time estimate of more than 5 days generally.
The Court’s consideration starts with the welfare of the children, but this is not paramount, see DP at . The inevitable consequence of ordering a lengthy fact finding hearing is that there will be considerable delay in the case and that will be severely to the detriment of the children. I accept Ms Hunt’s submission that in very many public law family cases there will be an adverse impact on the children from delay, and that factor alone cannot lead to refusing a fact finding hearing. However, the importance of achieving an appropriately speedy outcome for the children remains an important consideration and that factor here is particularly weighty.
It is not merely that delay will mean longer without a permanent and stable placement, but also that the children, and especially A and B, will have to wait longer for the counselling to deal with the extreme trauma they have been through. This counselling cannot meaningfully commence until they are in a long term placement, whether with the Mother or elsewhere. I therefore consider that the delay to the children is a very weighty factor in this case.
It is apparent from Re H-D-H that the impact on court resources and on other cases is a relevant consideration when making a case management decision such as this, see . The true question is whether the fact finding is truly “necessary” for the ultimate welfare decision that the Court has to make. If it is not necessary for that decision, then a fact finding hearing should not be undertaken. As the President of the Family Division set out in The Road Ahead (both 2020 and Addendum in 2021), in current circumstances the Family Courts do not have the resources to undertake hearings which do not meet the test of strict necessity. It is therefore essential that this test is properly applied, with appropriate scrutiny by the Court, even if the parties themselves do not argue against a fact finding hearing. The Court must be careful to ensure that there is a proportionate and effective use of court time. It is well known that the family justice system has come under very severe pressure during the Covid pandemic. Delays in the hearing of cases have become very much more lengthy and only through more rigorous case management will the delays be materially reduced.
The outcome in the present case is in my view clear cut. The factual dispute between the parents in relation to XE’s death is a very narrow one, namely what DE said in the kitchen to the Mother and who left the taps on. Only the parents were witnesses to these two events, save possibly for A, and none of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct, and thus best, evidence of the Mother and DE’s immediate responses at the time of the incident.
In any event, the demeanour of the parents, including what they said immediately after XE’s death, as seen by the other witnesses, carries relatively little forensic weight. It is well known that people react in very different ways to tragic events, and whether the Mother seemed extremely distressed or relatively unconcerned will be of little assistance to a judge seeking either to determine precisely what happened to XE or the quality of the Mother’s wider parenting of the children.
The evidence of the 20 or so other witnesses, whether police, ambulance service staff, or clinicians is therefore not necessary for the determination of facts by the Judge.
In respect to whether the Court orders a separate fact finding, such hearings will relatively rarely be necessary or proportionate. They necessarily build in a great deal of delay in the system and lead to a significant degree of frequently wasted resources. In a case such as this where the threshold findings sought go well beyond the area of factual dispute between the parents over what happened on the night of XE’s death, I consider it unnecessary to have a separate fact finding hearing. The LA will have to consider alternative scenarios and prepare its evidence on that basis. That may involve a more complicated situation than if there was a separate fact finding hearing, but it will save a large amount of delay and duplication of effort.
I also do not consider that the case warrants a listing of more than 5 days. Again, I refer to the President’s Guidance in The Road Ahead. It is essential that the Family Court uses the time available more effectively, and individual hearings take less time. In practice this means more focused cross examination, less repetition and careful scrutiny of witness templates in advance of hearings. This will put more pressure on advocates, and the Court, but that is the only way to achieve the President’s intention of individual cases taking less time. If that is done in the present case, I see no reason why the hearing cannot be completed in 5 days.