E (A Child), Re

In child-contact proceedings, a judge who has made findings of fact must give the parties a fair opportunity to address the consequential contact arrangements before deciding them. Expressing views on the impact of proved domestic abuse is not itself apparent bias, but determining future or interim contact without argument is a procedural irregularity. Fact-finding ordinarily leaves the case part heard and the same judge should continue, subject to practical exceptions. Where findings are unchallenged, they may stand and contact may be remitted to another judge, who must take account of those findings and disregard affected conclusions on contact.

The father appealed from proceedings in which a district judge directed a fact-finding hearing on the mother’s allegations of domestic violence and their potential effect on contact. HHJ Dedman found the allegations proved. In the same judgment he expressed views on direct and indirect contact, residence and a prohibited-steps order, although the parties had not argued what contact should follow from the findings. On restoration, the judge refused to recuse himself for alleged apparent bias. The father sought permission to appeal. The Court of Appeal considered whether the facts required a complete rehearing or whether contact could be decided by another judge on the existing findings.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The contact issue was remitted to the county court for determination by a judge other than HHJ Dedman.

2. Procedural fairness. After the fact-finding hearing, neither party had addressed the court on what contact, including interim contact, should take place if the allegations were proved. The judge therefore acted procedurally irregularly by expressing conclusions about future contact without giving the father an opportunity to address that issue. The appeal succeeded on that basis, rather than on apparent bias.

3. Fact-finding and the same judge. The Court applied the approach identified in Re B (Children) [2008] UKHL 35: fact-finding is part of the whole trial process, leaving the case part heard. Subsequent hearings should ordinarily be before the same judge, consistently with paragraph 23 of the practice direction dated 14 January 2009. That principle is desirable rather than absolute. A different judge may take over where the original judge is unable to resume the hearing or delay makes an exception necessary.

4. Application. The findings of fact had not been challenged and should stand. The judge determining contact had to take full account of the findings in paragraphs 1–34 of the judgment of 5 February 2009 and disregard the observations from paragraph 35 onwards. The description of the findings as having a substantial impact on contact was not itself an improper pre-judgment. The Court also criticised the failure to draw an order recording precisely which allegations had been proved, since that omission impeded an effective appeal.

1. Court of Appeal (Civil Division) — [2009] EWCA Civ 1238: permission to appeal granted and appeal allowed. The contact issue was remitted to the county court before a judge other than HHJ Dedman.
2. Southend County Court — HHJ Dedman found the allegations proved on 5 February 2009, expressed views about contact, and later refused to recuse himself. The father sought permission to appeal.