T (A Child)

In private-law proceedings concerning a child, a court should not dispense with a fact-finding hearing merely because delay is severe. It must assess necessity by reference to whether the allegations bear on welfare, contact, risk and the parties’ positions. It must then consider proportionality and fairness, including available case-management options. A fact-finding hearing may be retained alongside, or adjourned to, a welfare hearing, with appropriate warning that non-attendance may affect inferences. Expedition duties do not displace substantive or procedural fairness. The Court of Appeal may exceptionally intervene where a case-management decision is plainly wrong in principle.

Private-law proceedings concerned a seven-year-old child and allegations by the mother that the father had abused her and the child. A fact-finding hearing had repeatedly been directed but had not taken place. On 17 August 2016, HHJ Bellamy directed the child’s return from Poland and discharged the previous directions for a fact-finding hearing. The judgment was delivered on 23 August 2016 and reported as Re AB (A Child) [2016] EWHC 3115 (Fam).

The mother appealed the case-management decision. The central issue was whether the judge had properly assessed the necessity, proportionality and fairness of dispensing with fact-finding before determining welfare and contact.

1. The appeal was allowed and new case-management directions were made for a hearing before a different judge. The Court of Appeal considered that the decision to dispense with fact-finding was plainly wrong in principle. The order concerning the child’s return was set aside by consent in light of changed circumstances and replaced by new directions.
2. The judge’s general approach to avoiding unnecessary fact-finding was not criticised. However, in assessing necessity he failed to consider why fact-finding had previously been directed. Relevant questions included whether the allegations underpinned the mother’s position on contact, whether that position was genuine, and whether the allegations, if proved, disclosed a direct risk to the child or an indirect risk through their effect on the mother’s care. The welfare analysis therefore required the truth of the allegations to be determined so that appropriate inferences could be drawn [12]–[15].
3. Reliance on delay, the absence of recent complaints and progress in rebuilding contact did not adequately address necessity. The guardian’s recommendation was conditional on the findings still to be made, particularly concerning unsupervised contact.
4. In considering proportionality and fairness, the judge failed to engage with available options. The fact-finding hearing could have been retained and heard with, or shortly before, the welfare hearing. The mother could have been warned that the hearing would not be adjourned again and that inferences might be drawn from non-attendance. This would have enabled a fair and efficient determination without materially extending the proceedings [16]–[20].
5. The court also noted, although the point might not have been determinative, that case-management proportionality has both collective and individual dimensions. Relevant matters can include hearing estimates, waiting times and alternatives such as a video hearing. Applying the exceptional appellate standard, the Court of Appeal intervened because the decision was plainly wrong in principle. The lower judgment was not to be relied upon in future case-management decisions or on the substantive merits, since its observations about the parties had not been tested by evidence [19]–[22].

1. Court of Appeal (Civil Division): allowed the appeal, set aside the relevant order by consent in relation to the child’s return, and made new case-management directions for a hearing before a different judge. [2016] EWCA Civ 1210.
2. Family Court at Leicester, exercising High Court jurisdiction: HHJ Bellamy directed the child’s return from Poland and discharged the previous directions for a fact-finding hearing. The reserved judgment was reported as Re AB (A Child) [2016] EWHC 3115 (Fam).