C (A Child)

In child contact proceedings, family judges have a wide discretion to tailor the procedure, including deciding whether oral evidence is necessary. Child welfare and the avoidance of harmful adult conflict are relevant, and robust case management is legitimate. The discretion has limits. A parent must receive a fair opportunity to give evidence and make submissions on a live, demonstrably arguable issue, particularly where it arises shortly before a final hearing and has not previously been addressed. A court is not bound by a social worker’s recommendation. Allegations relevant to contact must be determined if maintained and disputed; where they are no longer pressed, they may properly be excluded, although the judge should record that position clearly.

The father applied for parental responsibility and contact with his two-year-old daughter. Interim supervised contact had been ordered following allegations by the mother of domestic violence and inappropriate sexual behaviour. The mother did not give evidence at the substantive hearing and was treated as no longer pressing those allegations.

A late local-authority report raised a new issue concerning the father’s practical ability to manage unsupervised contact. At the hearing listed as the final hearing, the judge strongly discouraged the father from giving evidence and his counsel from making submissions, and ordered continuing supervised contact. The central issue was whether the father had been afforded a fair hearing on the new issue.

Disposition. Wilson LJ granted permission to appeal and allowed the appeal. Laws LJ agreed. The county court’s order was varied so that it was interim, and the substantive contact application was directed to be reheard.

1. Procedural discretion. Family judges have a broader discretion than judges exercising conventional civil jurisdiction to decide how a child case should be heard. The hearing may lie anywhere on a spectrum from minimal evidence to a full oral investigation. Relevant considerations include the sufficiency of existing evidence, the likely effect of further evidence and cross-examination, the child’s welfare and the consequences of delay, the applicant’s prospects of success, and the justice of the case. Child welfare is relevant to the mode of hearing but is not paramount in that procedural decision. Robust and imaginative case management remains permissible.
2. Fair hearing. That discretion did not justify refusing evidence and argument on a demonstrably arguable issue. The hearing had been fixed as the substantive final hearing. The practical-care issue had been raised only shortly beforehand, and the father had not previously been required to address it in writing. The judge’s pressure gave the father and his counsel no real option other than to abandon oral evidence and submissions. The judge therefore exceeded her discretion and failed to provide a fair hearing.
3. Allegations. Where disputed allegations may affect contact and are maintained, they must be determined. Here, the mother’s decision not to give evidence, together with counsel’s confirmation, meant that the allegations were no longer being pursued. The judge was therefore entitled to exclude evidence about them. She would have been well advised to obtain definitive confirmation on the record.
4. Recommendations. The local-authority worker’s recommendation was evidence for the court to assess, not a restriction on the orders the court could make. It was therefore wrong to suggest that the court could only proceed in accordance with that recommendation.
5. Further order. The rehearing was fixed for 23 February 2006, with an estimate of four hours and no back-to-back listing. It was directed to be heard by another circuit judge with suitable family expertise.

• Court of Appeal (Civil Division): On 27 January 2006, in [2006] EWCA Civ 144, permission was granted and the appeal allowed. The order was varied to make it interim, with directions for a substantive rehearing.
• Watford County Court: HHJ Hughes QC, on 3 October 2005, ordered weekly supervised contact of at least two hours and directed a later review.