L (Children)

A fairness challenge to family proceedings must assess the process as a whole. An appellant cannot obtain permission by isolating individual case-management decisions or documents where the trial judge conducted a proportionate evaluation and the alleged irregularity could not materially affect the result. Family judges have a wide margin of discretion in managing hearings. Appellate intervention is not justified merely because a party would have preferred live evidence from experts or professional witnesses. A challenge to an interim discretionary order may become academic where events have overtaken it and no question of law or principle remains.

The mother made three applications for permission to appeal arising from long-running private law proceedings concerning her two children. She alleged that the father had sexually abused one child. Following a fact-finding hearing before HHJ Horowitz, the allegations were not established.

The applications concerned interim contact orders made by HHJ Cox and HHJ Richards, directions that expert and professional evidence be considered on paper, and alleged procedural defects concerning a Scott schedule, a photograph and documentary exhibits. The central issue was whether the proceedings, viewed as a whole, had been unfair or affected by a material irregularity.

All three applications for permission to appeal were refused.

1. The challenges to the earlier interim contact orders were overtaken by events. They raised no question of law or principle and concerned the exercise of judicial discretion. Permission was therefore refused in relation to those orders.
2. A challenge to the fairness of family proceedings under domestic law or article 6 of the European Convention on Human Rights must examine the process as a whole. It cannot succeed by selecting isolated points from the trial judge’s decisions as the process developed.
3. The challenge to the Scott schedule disclosed no arguable unfairness. The schedule before the judge substantially replicated the mother’s version and included two additional allegations. The photograph did not materially feature in the judge’s reasoning, and the later exhibits disclosed no material that should have been before the court.
4. The direction that the experts and other professional witnesses should give evidence on paper fell within the wide margin of discretion enjoyed by family judges in case management. The judge had considered the ambivalent evidence of Dr Weir and the evidence of Dr Furman. He decided the case primarily on the father’s credibility. The absence of cross-examination did not amount to a material irregularity.
5. The procedural objections were, in any event, considered in the context of a serious allegation heard with legal representation and substantial evidence. The fact-finding judgment involved a proportionate evaluation of the issues, and there was no possible ground for appeal.

The formal order was: applications refused.

• Court of Appeal (Civil Division): refused all three applications for permission to appeal; [2012] EWCA Civ 1923.
• Clerkenwell County Court: HHJ Cox and HHJ Richards made interim contact and case-management orders; HHJ Horowitz later conducted the fact-finding hearing and found the allegations unproved.