W-M, Re, (Children)

In family proceedings, a judge may limit written evidence and exclude exhibits where that case management is proportionate to the issues requiring determination, particularly where litigants in person range widely over historical matters. Under the Family Procedure Rules, the court may proceed when a respondent is absent. The decision to do so is discretionary and may take account of the judge’s knowledge of the case, the narrowness and urgency of the issues, and the need for finality. An absent party’s written evidence may be given little weight in a welfare determination, especially where the judge has substantial knowledge of the history and has heard the available oral and professional evidence.

The appeal arose from children proceedings concerning three children living with the father and his wife. At a hearing on 17 March 2015, the judge extended a supervision order for 12 months and directed that contact between the mother and the youngest child should take place fortnightly rather than weekly.

The father left court before the hearing proceeded. The mother challenged the judge’s decision to limit statements to six pages and prohibit exhibits, and to continue in the father’s absence while taking account of his written statement. Permission to appeal was granted on those two grounds.

1. Case management. The appeal against the limits on written statements and the prohibition on exhibits was dismissed. The mother had been able to put forward detailed evidence and submissions, and had given oral evidence directly to the judge. The judge’s directions were proportionate to the narrow issue, namely whether contact should occur weekly or fortnightly. In cases involving litigants in person, a judge has a duty to assist by focusing the evidence on the current welfare issues requiring determination. No targeted application had been made for permission to file any particular document.
2. Proceeding in the father’s absence. Rule 27.4(3) of the Family Procedure Rules gave the judge a discretion to proceed where the respondent did not attend. The exercise of that discretion was unchallengeable. The judge knew the parties and the extensive history, the issue was narrow and pressing, and the proceedings required a concluded decision about the child’s contact arrangements. The absence of an express application for an adjournment, and the lack of any clear indication that such an application had been refused without reasons, also provided no basis for intervention.
3. Weight of written evidence. The judge had merely read and taken account of the father’s statement. This was a welfare and discretionary hearing, rather than a fact-finding hearing. The judge was entitled to give the statement minimal weight and to rely principally on the professional views of the Local Authority and children’s guardian, together with the mother’s oral evidence. Contact frequency was not capable of a clinically right or wrong answer; it required an evaluative welfare judgment.
4. The mother’s proposed request for a care order was not a course open to the judge because the evidence did not establish circumstances justifying a direction under section 37 of the Children Act 1989.
5. The appeal was dismissed on both grounds, and no action was taken in relation to the orders below.

• Court of Appeal (Civil Division): appeal dismissed on both grounds; the orders below were left undisturbed.
• Swindon Combined Court: on 17 March 2015, the court extended the supervision order for 12 months and directed fortnightly contact between the mother and the youngest child.