F-H (Children), Re

A court retains discretion to abandon a pre-arranged fact-finding hearing in care proceedings, but must exercise particular caution. It should respect the earlier case-management decision, consider any new circumstances, account for incurred costs and preparations, and avoid creating a later need for findings which should already have been made.

Crossing the threshold under section 31 of the Children Act 1989 does not make disputed facts irrelevant to the welfare decision. The court must determine material facts so that it and the professionals advising it work from the same reliable foundation. Neither the difficulty of deciding the truth nor possible criminal proceedings ordinarily transfers or removes that judicial responsibility.

The local authority brought care proceedings concerning four children. Its principal allegations concerned sexual abuse by their adult sibling, the mother's failure to protect them, and her possible encouragement or suppression of particular allegations. A separate 12-day fact-finding hearing was arranged, but Judge Hughes QC ruled at its outset that the enquiry was unnecessary, inappropriate and disproportionate.

The judge considered that other matters could satisfy the threshold under section 31 of the Children Act 1989, that professionals could assess risk on a worst-case basis, and that possible criminal proceedings provided a more appropriate forum. She also declined to determine two subsidiary allegations concerning the parents.

The local authority appealed. The central question was when a judge may decline, at the outset, to conduct a fact-finding hearing which has already been arranged.

1. Appeal allowed. The order prohibiting the local authority from seeking findings of sexual abuse against the adult sibling was set aside. The facts concerning the alleged abuse needed, so far as possible, to be determined. Longmore LJ agreed with Wilson LJ.
2. A judge retains discretion to abandon a fact-finding exercise even at the outset of a hearing previously arranged for that purpose. The later timing introduces additional considerations. The judge should respect the earlier decision, ask whether new or newly discovered circumstances justify departure, consider the costs and preparations already incurred, and guard against findings later proving necessary. The forensic programme should be reversed only with great caution.
3. The ability to satisfy the statutory threshold through other facts did not make the sexual-abuse allegations irrelevant. The threshold determines whether the court has power to make a care order. It does not determine the optimum outcome for the children. The disputed allegations were crucial to assessing whether three children could safely return to their mother.
4. The court, rather than therapists or assessors, bears responsibility for deciding material facts. Care proceedings require a firm and common factual foundation for the court and its professional advisers. Proceeding on an assumed worst-case scenario was inappropriate because the competing possibilities included both actual sexual abuse and false allegations encouraged by the mother.
5. The difficulty and uncertain outcome of the enquiry afforded no reason to abandon it. Applying In Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, deciding where the truth lies is the function of the courts.
6. Possible criminal proceedings did not ordinarily remove the need for findings in the family court because the standards of proof differ. On the particular timetable, however, conducting the family fact-finding hearing only 28 days before the criminal trial would have been absurd, potentially prejudicial and possibly abusive to a child witness. The November outcome hearing was therefore vacated, with directions to be reconsidered after the criminal proceedings.
7. The judge acted within her discretion in declining to determine whether the mother had moved home unnecessarily. The alleged failure of the younger children's father to protect them remained material if his candidacy as their carer was pursued and could be determined at the outcome stage.

1. Court of Appeal (Civil Division): The local authority was granted permission to appeal out of time. The appeal was allowed and the prohibition against pursuing findings of sexual abuse was set aside. The scheduled outcome hearing was vacated, and a directions hearing was to follow the criminal proceedings.
2. Principal Registry, Family Division: Judge Hughes QC abandoned the pre-arranged fact-finding hearing and prohibited the local authority from seeking findings of sexual abuse against the intervener. She also declined to determine two subsidiary allegations.