W (A Child), Re

Whether to hold a fact-finding hearing in private-law children proceedings is a discretionary case-management decision. Such a hearing is justified where disputed facts must be resolved as part of the court’s decision on relief, or are needed to inform future care arrangements. It is not required merely to provide closure, identify responsibility, or give the parties and child an objective account when no justiciable issue remains. The court should consider matters including the child’s interests, necessity, likely evidential value, cost, time, impact, fair-trial prospects and the justice of the case. A decision by a judge familiar with the case should stand where the discretion was lawfully exercised and adequately explained.

The father, SW, sought permission to challenge an order made by HH Judge Mayer in the Barnet County Court on 1 July 2008. The order refused his request for a fact-finding hearing concerning the reasons why his 12-year-old son, DW, had no contact with him, including allegations of parental alienation raised in a psychiatric report.

SW no longer sought an order for contact. He argued that findings were required to provide closure, identify responsibility and assist the family and future professionals. The central issue was whether the judge had erred in refusing a further hearing when no application for substantive relief remained.

1. Disposition. Lord Justice Wall dismissed the application for permission to appeal. The refusal of a fact-finding hearing was a discretionary case-management decision, and permission to appeal was refused.
2. When fact-finding is appropriate. Fact-finding hearings are most familiar in proceedings under Part IV of the Children Act 1989, where disputed facts may determine whether the statutory threshold is met. Similar principles apply in private-law proceedings. A hearing should address a factual issue which the court must resolve as part of its decision-making, or which is needed to inform future care arrangements. Thus, where domestic violence is alleged as a defence to a contact application, the court must determine whether it occurred before deciding the application. The judgment referred to the factors identified by McFarlane J in A County Council v DP, RS, BS (By the children’s guardian), [2005] EWHC 1593 (Fam) [2005] 2 FLR 1031.
3. No justiciable issue. SW was not seeking contact with DW, and the court therefore had no decision about contact or other substantive relief to make. A hearing sought only to provide closure, establish responsibility, or create an objective account for the family would not resolve a justiciable issue. The principle against unnecessary litigation means litigation necessary for the proper exercise of the court’s jurisdiction in resolving the issues before it. The overriding objective does not require a hearing unrelated to any such issue. Nor was there any guarantee that findings would be accepted by DW or anyone else.
4. Discretion and proportionality. The judge knew the case well, considered appropriate factors, and gave reasons which, although terse, were sufficient. There was no error of law or improper exercise of discretion. The court also applied the analogy of Re M, [2007] EWCA Civ 589: once the evidence is sufficiently full to enable a conclusion, the court need not pursue every possible evidential avenue where the further value is too small to justify the cost and time. Recalling Dr Weir was accordingly unwarranted.

1. Court of Appeal (Civil Division) On 30 October 2008, the court dismissed the application for permission to appeal: [2008] EWCA Civ 1181.
2. Barnet County Court On 1 July 2008, HH Judge Mayer refused the father’s application for a fact-finding hearing.