R (A Child), Re V

In a preliminary fact-finding hearing in private-law children proceedings involving serious domestic-violence allegations, the judge should not entertain a submission of no case to answer. The hearing is quasi-inquisitorial and exists to establish facts needed for the child-welfare decision. Its purpose cannot fairly be achieved on partial evidence. The judge should hear and test all available evidence before deciding the allegations. Termination without hearing the remaining evidence is conceivable only in the rarest case, such as where the applicant concedes that it is inevitable or appropriate. This approach differs from conventional civil litigation, where a defendant may elect to call no evidence and the court then decides the case on the evidence heard.

The mother appealed from a decision of HHJ Milligan in the Southampton County Court. He was conducting a preliminary fact-finding hearing concerning her allegations that the father and members of his extended family had subjected her and the child to domestic violence and abuse.

After the mother’s evidence exposed inconsistencies about the presence of an interpreter when statements were prepared, the father invited the judge to treat her as an unreliable witness and end the hearing. The judge accepted that submission, heard no further evidence, and found that the allegations had not been proved to the ordinary civil standard. The central issue was whether a judge in private-law children proceedings could entertain a submission of no case to answer before hearing all available evidence.

1. Appeal allowed. The decision was set aside and a retrial was directed before another judge, with allocation arrangements left to HHJ Marston, the designated family judge in Hampshire.
2. Per Lord Justice Thorpe, a preliminary fact-finding hearing in family proceedings is an essential preparation for determining future child-welfare arrangements and for informing professionals’ assessments. The judge acts in a quasi-inquisitorial role. The focus is the child’s welfare, rather than the adjudication of adult grievances.
3. The court distinguished the conventional civil procedure. Under the approach discussed in Benham Ltd v Kythira Investments Ltd & Another [2003] EWCA Civ 1794, a defendant who is not put to an election is assessed by reference to whether the claimant has a real prospect of success, rather than the balance-of-probabilities test applied after all the evidence. That approach has no proper place in the domestic-violence fact-finding hearing considered here.
4. Lord Justice Thorpe stated that a serious domestic-violence fact-finding hearing should not be terminated without hearing all available evidence. The obligation follows from the judge’s responsibilities to the child. Even apparently frail evidence may acquire substance when the whole evidential picture is available. The only conceivable exception was a rare case in which the applicant conceded that termination was inevitable or appropriate.
5. Lord Justice Wall agreed that it was impossible fairly to resolve the relevant factual issues in a private-law hearing without hearing and testing all available evidence. Lord Justice Stanley Burnton added that the judge had applied an inappropriate full-evidence test at a half-time stage and that, save conceivably in the rarest circumstances, a no-case submission was inconsistent with deciding the child’s interests on partial evidence.
6. The court also regarded the judge’s reliance on conjectures about a non-resident Indian family as troubling in light of the need for confidence in the family justice system among minority communities.

• Court of Appeal (Civil Division): Appeal from the Southampton County Court allowed on 17 July 2008. [2008] EWCA Civ 1619. The fact-finding hearing was directed to be retried before another judge.
• Southampton County Court: HHJ Milligan terminated the fact-finding hearing on its third day after accepting a no-case-to-answer submission and concluded that the allegations had not been proved.