L (A Child), Re

In public law children proceedings, a court deciding whether a child should give oral evidence must have sufficient time and preparation to consider the actual evidence, including any ABE interview and transcript, in the context of the other evidence. A decision based only on an inadequate social work report is a procedural irregularity. Case management must be robust and comply with Practice Direction 12A and the overriding objective; pressure from an overburdened list does not justify failing to consider key evidence. Essential source documents should be disclosed where needed for fair cross-examination and assessment of evidential weight, particularly where disclosure causes no significant cost or delay.

Herefordshire District Council brought public law care proceedings concerning a 17-month-old child. The case involved allegations of sexual abuse made by the child's 13-year-old uncle, together with wider concerns about domestic violence, protection from sexual offenders, housing and neglect. The mother also faced related criminal proceedings.

At a case management hearing, His Honour Judge Hooper QC directed that the uncle should not give oral evidence or be cross-examined and refused directions for disclosure of source documents underlying his allegations. The Court of Appeal considered whether those directions were procedurally fair and whether the proceedings should proceed by way of a split fact-finding hearing.

The appeal was allowed unanimously. Ryder LJ gave the leading judgment, with Gloster LJ and Tomlinson LJ agreeing. Permission was granted, both sets of orders were set aside, and the proceedings were remitted to the Designated Family Judge.

1. The judge could not fairly decide whether the uncle should give oral evidence without viewing the ABE interview DVD and considering its transcript alongside the other evidence. He also had to have regard to the uncle's interests under section 44 of the Children and Young Persons Act 1933 and apply the guidance in Re W [2010] UKSC 12. Reliance solely on an inadequate social work report was insufficient and amounted to a clear procedural irregularity. The order excluding oral evidence and cross-examination was therefore set aside.
2. The email, interview notes, police referral record and relevant social work records were essential source documents. They were necessary for fair cross-examination and for assessing the weight of the allegations in both the family and criminal proceedings. Disclosure involved no significant cost or delay and was directed.
3. The Family Justice Council guidance did not yield to the pressures of a busy court list. Robust case management was required under Practice Direction 12A and the overriding objective. The judge needed adequate time to consider the key issues and evidence; if that time was unavailable, assistance should have been sought from the Designated Family Judge or Family Division Liaison Judge.
4. The case was not a single-issue or determinative-issue case. Findings about sexual boundaries and protective arrangements had to be considered in the context of the social-care assessments and other available information. Split hearings usually cause delay, and their use should be explained on the face of the record. The questions whether the uncle should give evidence and whether a separate fact-finding hearing was appropriate were remitted, including the possibility of combining fact-finding and welfare issues after the criminal trial.

The court also considered that an expedited transcript might be appropriate and that the parties might seek directions restricting reporting until the criminal proceedings concluded.

• Court of Appeal (Civil Division): On 17 December 2013, permission was granted and the appeal was allowed. The case management orders were set aside, disclosure was directed, and the relevant questions were remitted to the Designated Family Judge.
• Worcester County Court: His Honour Judge Hooper QC made case management directions on 29 August 2013 and supplemented his reasoning on 10 September 2013. He directed that the uncle should not give oral evidence or be cross-examined and refused directions for disclosure of specified source documents.