W (Children)

A family court has a case-management discretion whether to reopen a fact-finding exercise abandoned or compromised by consent. Serious allegations do not create an automatic requirement for a later hearing. The court must balance truth-finding against delay, changed circumstances, the likely impact on the children, the prospects of proving the allegations and the likely benefit of a hearing. Subsequent conduct, including agreement to contact arrangements, may bear on whether reopening is proportionate. An appellate court will not interfere unless the decision is plainly wrong.

The mother of two children had made serious allegations that the father had abused her and mistreated the children. A fact-finding hearing was listed before HHJ Black on 25 August 2009, but the mother consented to an order under which she did not pursue positive findings. The order recorded that no findings had been made against the father and that the allegations could not be relied on to prevent contact or affect residence.

After the mother’s mental health deteriorated and the children were placed with the father, she sought in 2012 to set aside the earlier order and reopen the allegations. HHJ Marston refused. The central issue was whether that case-management decision was plainly wrong in light of the seriousness of the allegations, the alleged pressure exerted by counsel, the delay, the changed circumstances and the children’s welfare.

Ward LJ delivered the leading judgment. Aikens LJ and Black LJ agreed, and the appeal was dismissed unanimously.

1. The formal order made after HHJ Marston’s hearing was defective, but its substance was a refusal to reopen and rehear matters abandoned before HHJ Black. The Court treated the challenge as an appeal against a case-management decision.
2. Whether to reopen a previously abandoned or compromised fact-finding exercise is a discretionary case-management decision. The appellate question was whether the judge’s decision was plainly wrong. Ward LJ noted that an application seeking to set aside the earlier order and obtain a rehearing might technically have been better pursued by an appeal, but expressed no concluded view on that issue.
3. The importance of establishing the truth was accepted. However, the court was required by section 1 of the Act to have regard to delay inimical to the children’s well-being. The passage of nearly three years, the mother’s subsequent mental-health breakdown, the children’s placement with the father and the risk of further uncertainty were material considerations.
4. The judge was entitled to consider the mother’s subsequent conduct. She had consented to progressive, unsupervised and staying contact and had not promptly challenged the compromise. Her challenge arose only after the care position had changed.
5. Reopening would cause further delay and was disproportionate. The allegations appeared weak on the papers, with limited corroboration and inconsistencies. The likely benefit to the children was small because the allegations had not apparently affected the father’s treatment of them, while further uncertainty was likely to harm them. HHJ Marston was therefore plainly right to refuse the application.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1307. Appeal dismissed unanimously.
• Portsmouth County Court: On 3 April 2012, HHJ Marston refused the mother’s application to set aside the earlier consent order and reopen the abandoned fact-finding issues.
• Portsmouth County Court: On 25 August 2009, HHJ Black made a consent order recording that no findings had been made against the father and regulating future contact.