SW v SW & Anor

In family proceedings concerning children, the judge has a broad discretion to determine the appropriate mode of hearing. A hearing may be conducted without oral evidence or cross-examination where the available material is sufficient, the further evidence is unlikely to affect the outcome, and the procedure remains fair. The child’s welfare is relevant to the conduct of the hearing, including the avoidance of unnecessary delay and adult conflict. Appellate intervention is unwarranted where the judge acted within the permissible ambit of discretion and the proposed questioning would add no new information or could not realistically affect the decision.

The father appealed against an order made by a district judge concerning his application for a shared residence order and the definition of contact. He argued that he had been denied a fair trial because he was prevented from giving oral evidence and cross-examining the mother and guardian. He also challenged the guardian’s report for not addressing the welfare checklist, although an earlier report on the same issues had done so.

The central issues were whether the district judge had lawfully managed the hearing without oral evidence and cross-examination, and whether the resulting decisions were compatible with section 1 of the Child Act 1989 and article 6 of the ECHR.

1. Appeal dismissed. The district judge had acted within the permissible ambit of discretion in refusing oral evidence and cross-examination.
2. Judges exercising jurisdiction in relation to children have a broader discretion over the mode of hearing than judges exercising conventional civil jurisdiction. The relevant considerations included whether the existing evidence was sufficient; whether further evidence or cross-examination was likely to affect the outcome; whether a full investigation and consequential delay would harm the child’s welfare; whether the applicant had real prospects of success; and whether justice required a full investigation. This approach was drawn from Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 (CA).
3. The district judge had heard the father’s evidence at length on the same issues earlier in the year. The later hearing occupied a full day and enabled the father to present his case fully. Refusing further oral evidence and cross-examination of the mother was therefore justified.
4. The guardian’s report was not rendered unlawful by failing separately to address the welfare checklist. It was supplemental to an earlier report in which the checklist had been fully considered. The father’s reliance on international conventions added nothing to the domestic questions under section 1 of the Child Act 1989 and article 6 of the ECHR.
5. The judge’s decision on shared residence was sufficiently reliable despite the arguable nature of that application. The judge would almost certainly have reached the same conclusion after cross-examination of the guardian because there was no new information to uncover and the proposed questioning would have concerned only the exercise of discretion.

• High Court (Family Division): Appeal from an order of District Judge Robinson made on 17 June 2008. The appeal was dismissed.