R (A Child), Re

Fairness in a family fact-finding hearing is an objective question. It is not determined by a party’s subjective confidence in the judge or perception of unfairness. A judge is not prevented from deciding allegations merely because a witness cannot be cross-examined. Where fair-trial concerns have wrongly prevented substantive findings, and the evidence later becomes available, the hearing should generally resume within tight bounds so that the evidence can be heard and the necessary findings made.

The proceedings concerned five children, including S, aged eight. The principal issue was whether S had been sexually abused by her father. The mother had not given oral evidence because of her mental health and expert evidence that she should not be required to testify against her will.

After considering the evidence, the Recorder declined to make the requested findings against the father, holding that the absence of both the mother and S from cross-examination created unfairness. During the lunch adjournment, the mother offered to give evidence. The Recorder nevertheless refused to reopen the hearing, concluding that the father would lack confidence in any decision. The Court of Appeal considered whether those fair-trial conclusions justified refusing to determine the allegations and to reopen the evidence.

1. Appeal allowed and case remitted. The trial was to resume before the Recorder. He was to hear the mother’s evidence, keep the reopening within the tightest possible bounds, and then decide what further evidence was necessary before determining the issues.
2. The Recorder had wrongly treated the father’s fair-trial rights as preventing him from deciding the sexual-abuse allegations. The opportunity to cross-examine an eight-year-old informant was effectively zero in any event. The mother’s absence did not necessarily prejudice the father; her evidence had been discounted and, if available, might have assisted the case against him.
3. Fairness is an objective question. It is not assessed subjectively by reference to one party’s confidence in the judge or perceived unfairness. The Recorder therefore erred when he first relied on the mother’s absence to avoid making findings and then relied on the mother’s proposed evidence to refuse to reopen the hearing.
4. Once the unexpected development had occurred, there was no practical alternative to continuing the trial process. The Recorder had not effectively made substantive findings, and the case had to be completed by receiving the available evidence and deciding the remaining evidential requirements.

Lord Justice Patten and Lord Justice Richards agreed with Lord Justice Thorpe.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 1783, the appeal was allowed and the case was remitted to the Recorder for the trial to resume.
• Leeds Family Proceedings Court: Mr Recorder Fairwood declined to make the requested sexual-abuse findings against the father and refused to reopen the evidence after the mother offered to testify.