C (A Child), Re

Transfer between a county court and a family proceedings court must be governed by the statutory allocation criteria, the child’s welfare and the need to avoid delay. A county court may retransfer proceedings which were exceptionally complex when first transferred but have later lost that complexity. The court must assess the proceedings as they stand: disputed sexual-abuse allegations may increase complexity and militate against a family proceedings court hearing. A discrete transfer of only part of proceedings is generally inappropriate because of judicial discontinuity. Transfer directions made on the court’s own motion require notice and an opportunity to be heard or to make written representations, together with the prescribed consultation with the receiving court.

The father began proceedings under the Children Act 1989 concerning contact, parental responsibility and residence in respect of his daughter. The proceedings were transferred from the Halton Family Proceedings Court to Warrington County Court in May 2006 because of their complexity, pursuant to article 7 of the Children (Allocation of Proceedings) Order 1991.

After allegations of sexual abuse were raised, a circuit judge directed that a fact-finding hearing should take place before Her Honour Judge Case in February 2008. Acting without a hearing or representations from the parties, Judge Case vacated that hearing and a review hearing and directed that the fact-finding hearing take place before the Halton Family Proceedings Court. The father sought permission to appeal. The central issues were whether retransfer was permissible, whether transferring only the fact-finding hearing was appropriate, and whether the directions could properly be made without notice.

Lord Justice Wilson gave the judgment, with Lord Justice Toulson agreeing.

1. Permission and outcome. Permission to appeal was granted. The appeal was allowed, the directions dated 6 February 2008 were set aside, and the fact-finding hearing was directed to take place before Her Honour Judge Coppel in Warrington County Court on 1 and 2 May 2008.
2. Power to retransfer. Article 11 of the Children (Allocation of Proceedings) Order 1991 permits a county court to transfer proceedings back to a family proceedings court where the criterion supporting the original transfer no longer applies. Although article 11(1)(a) uses the expression that the criterion does not apply, that wording is present-tense and should be construed liberally. It therefore permits retransfer where proceedings were exceptionally complex at the time of transfer but later lost that complexity. The court must also have regard to delay and the child’s interests.
3. Continuing complexity. The proceedings had not lost their complexity. The disputed sexual-abuse allegations had added to it. The President’s draft guidance identified a disputed allegation of sexual abuse as a factor militating against trial in a family proceedings court. The earlier improvement in the mother’s attitude and the police decision to take no action did not justify the retransfer.
4. Discrete issue and timing. Transferring only a discrete part of proceedings to a family proceedings court was objectionable because of the risk of severe judicial discontinuity. In any event, the issue should have been considered no later than the hearing at which the fact-finding hearing was fixed. A transfer made ten weeks later and shortly before the fixture risked inconvenience and further delay in proceedings already concerning a young child.
5. Procedural fairness. Under rule 4.14(3)(a) of the Family Proceedings Rules 1991, directions made of the court’s own motion, including directions transferring proceedings, require notice and an opportunity for the parties to attend and be heard or to make written representations. A hearing could have been arranged before another judge, by video-link or telephone, or the parties could have been invited to make written representations.
6. Receiving court’s views. Rule 4.6(6) of the Family Proceedings Rules 1991 also required prior notification to the family proceedings court and an invitation for the clerk to the justices to give views. There was no evidence that this safeguard had been observed.

• Court of Appeal (Civil Division) — In [2008] EWCA Civ 502, permission was granted and the appeal was allowed. The directions of 6 February 2008 were set aside and the fact-finding hearing was relisted in Warrington County Court.
• Warrington County Court — Her Honour Judge Case directed that the listed fact-finding and review hearings be vacated and that the fact-finding hearing be listed before the Halton Family Proceedings Court.
• Halton Family Proceedings Court — The proceedings had previously been transferred to Warrington County Court in May 2006 under article 7 of the Children (Allocation of Proceedings) Order 1991 because of their complexity.