AB v BG & Ors

A judge in care proceedings may investigate issues which emerge during the evidence and is not invariably confined to the local authority’s proposed findings. Departure from a carefully prepared schedule, however, requires very good reasons. Any additional finding must be securely founded in the evidence and reached through a fair process.

A court may reject expert evidence only where other material safely supports that conclusion and the reasons are fully explained. The ordinary practice in split care proceedings is for the same judge to conduct the fact-finding and welfare stages. An exception may be required where a party has legitimately lost confidence in the judge or there is an appearance of bias.

The father, supported by the mother, appealed against findings made by HH Judge Carr QC during the fact-finding stage of care proceedings under Part IV of the Children Act 1989. The proceedings concerned two children, but the disputed findings related to the unexplained death of the parents’ third child.

The local authority had not sought a finding of unlawful killing. The forensic pathologist could not identify the cause of the hypoxic-ischaemic encephalopathy and found no pathological evidence supporting unlawful killing. The judge nevertheless found that the child had probably been suffocated unlawfully and that the father was the more likely perpetrator. She refused his application for an adjournment to obtain responsive medical evidence.

The appeal concerned whether those findings were supported by the evidence, whether procedural fairness required an adjournment, and whether the same judge should conduct the subsequent welfare hearing.

1. Appeal allowed in part. Wall LJ gave the judgment of the court. Moore-Bick and Thorpe LJJ agreed. The court replaced the judge’s schedule of findings with the amended schedule agreed by the parties, directed that the judgment be read subject to the Court of Appeal’s judgments, and ordered that a different judge conduct the welfare hearing.

2. A judge in care proceedings may adopt a proactive, quasi-investigative role. Findings may be based on all the evidence, including assessments of credibility, and the judge need not adhere slavishly to the local authority’s proposed schedule. Issues may properly emerge during oral evidence. Where a schedule has been prepared carefully and the hearing has proceeded on directions agreed by the parties, however, very good reasons are required for departing from it.

3. Any additional or different finding must be securely founded in the evidence, and the fairness of the fact-finding process must be preserved. A judge may disagree with an expert, but only where there is material safely supporting that disagreement and the reasons for rejecting the expert evidence are fully explained, consistently with Re M (Residence) [2002] EWCA Civ 1052.

4. The finding of unlawful killing was neither sought by the local authority nor necessary to satisfy the threshold criteria under section 31 of the Children Act 1989. More importantly, the medical and pathological evidence did not support it. The evidence as a whole did not warrant a finding that either parent had unlawfully killed the child, even allowing for the judge’s adverse assessment of their credibility.

5. Once the judge introduced unlawful killing and indicated that it was probable, she was required to afford the father a proper opportunity to answer that grave allegation. Refusal of the requested adjournment was plainly wrong, notwithstanding the delay and inconvenience which an adjournment would cause.

6. In an ordinary split care hearing, the same judge should conduct the fact-finding and welfare stages. That continuity is good practice and avoids duplication and loss of relevant information. The rule admits exceptions. Reassignment may be appropriate where a litigant has legitimately lost confidence in the judge or there is an appearance of bias. Although Judge Carr would have approached the welfare stage conscientiously, the circumstances made the father’s perception of bias understandable. A fresh welfare judge was therefore required, without rehearing the factual issues.

• Court of Appeal (Civil Division): Permission to appeal granted and the appeal allowed in part. The disputed findings were replaced by an agreed amended schedule, and the welfare stage was assigned to a different judge: [2009] EWCA Civ 10.
• Sheffield County Court: HH Judge Carr QC found during the fact-finding stage that the deceased child had probably been unlawfully suffocated and that the father was the more likely perpetrator. She refused the father an adjournment to obtain further medical evidence.