B ( A Child), Re

A family court has wide discretion to control and exclude evidence, but robust case management has limits. A judge must permit a party a fair opportunity to answer serious allegations and must obtain the material evidence needed to make reliable findings of fact.

Urgency does not justify a truncated fact-finding hearing where an interim protective arrangement can safeguard the child pending a fuller hearing. An order described as interim does not make the underlying findings provisional or readily capable of being reopened.

The mother appealed from an order of Worcester County Court transferring the residence of her five-year-old daughter to the father. The transfer followed a finding that the mother's partner, who was considered to present a risk to children, was living in her home.

The allegations emerged shortly before a two-day hearing. To complete the case within the allotted time, the judge refused to hear the partner, the maternal grandmother and the child's social worker, and declined to await potentially significant documentary evidence. He nevertheless made adverse credibility findings against the mother and ordered an immediate transfer of residence.

The central issue was whether the factual finding could stand when the judge's management of the evidence had prevented the mother from answering the allegations and had deprived the court of material evidence.

1. Appeal allowed. Lady Justice Black, with whom Lord Justice Aikens and Lord Justice Moore-Bick agreed, held that the judge's factual finding and consequential orders could not stand. The case was remitted for a fresh hearing before a different judge.

2. The judge's case-management decisions deprived the mother of a fair opportunity to answer the allegations. They also deprived the court of evidence needed to make reliable findings. The partner was a central witness concerning both his alleged presence at the home and the use of his bank card in Leicester. The maternal grandmother, who was present at court, could also have provided material evidence challenging the accounts relied upon.

3. The urgency of protecting the child did not require the judge to choose between leaving her at risk and determining the allegations within the available two days. He could have arranged an extended stay with the father, or made a short interim residence order, while allowing time for a fuller hearing. Re K (Procedure: Family Proceedings Rules) [2004] EWCA Civ 1827 was considered regarding interim transfers of residence.

4. The description of the residence order as interim did not cure the unfairness. The findings themselves were not interim findings. Existing findings create a substantial practical and legal obstacle to reopening the disputed issues and ordinarily require powerful evidence before reconsideration is permitted.

5. Rule 22 of the Family Procedure Rules 2010 gives the court a wide power to control evidence, including the power to exclude otherwise admissible evidence. Robust case management remains essential in family proceedings, but it cannot justify excluding evidence necessary for reliable fact-finding in the circumstances of the individual case.

1. Court of Appeal (Civil Division): The mother's appeal was allowed unanimously. The factual finding and consequential orders were overturned, and a fresh hearing before a different judge was directed: [2012] EWCA Civ 1742.
2. Worcester County Court: His Honour Judge Hooper QC found that the mother's partner was living in her home and made an immediate interim residence order in favour of the father. That finding and the consequential orders were overturned.