X (A Child) (No 3), Re

A parent’s withdrawal from proceedings does not, by itself, determine whether a court should continue. In an exceptional case, the court may proceed where there is a solid advantage in resolving the issues and reasonable confidence that the hearing will be sufficiently robust, fair and reliable. The court must consider the interests of the child and the public interest, together with the availability of evidence capable of presenting and testing the absent party’s case. Counsel instructed by a guardian may challenge witnesses on the essentials of the absent party’s case where the circumstances do not compromise the guardian’s neutrality. The court must keep the fairness and appropriateness of the process under review.

The case concerned X, a child born in 2012 who had been removed from the care of the birth parents following findings of inflicted injury. Care and placement orders and a later adoption order had been made without appeal. The birth parents were subsequently acquitted in criminal proceedings after the prosecution offered no evidence capable of establishing a case to answer.

The Court of Appeal directed that the family findings should be reconsidered in light of the criminal trial evidence. The High Court therefore directed a rehearing under the inherent jurisdiction. Shortly before the rehearing, both birth parents withdrew and declined to participate. The issue was whether the court could and should continue the rehearing in their absence.

1. The rehearing was permitted to proceed. The birth parents’ decision to withdraw was not determinative. The court was required to decide whether the rehearing offered a solid advantage and whether it could be conducted through a sufficiently robust, fair and valid process capable of ascertaining the truth.
2. There was a solid advantage in proceeding. X’s best interests and the public interest both supported a final determination of the facts in the light of all the evidence, including evidence unavailable to the Circuit Judge at the original fact-finding hearing.
3. The court was reasonably confident that the process would remain fair and reliable despite the birth parents’ absence. The earlier proceedings, the criminal trial and the evidence filed for the rehearing provided a detailed account of the birth parents’ case and the way in which it would probably have been advanced.
4. A proper challenge to the witnesses remained essential. It had to address clarification of the evidence, the witnesses’ responses to conflicting expert opinions, and the essentials of the birth parents’ case. In the unusual circumstances, counsel instructed by X’s guardian could undertake that task without compromising the guardian’s neutrality.
5. The court declined to rule out compelling the birth parents to give evidence. It accepted the position that withdrawal was not determinative and that, if compelled, a claim to privilege had to be made in the witness box in response to a specific question. Whether privilege against self-incrimination survived the criminal acquittals was left for decision if the issue arose.
6. The court would keep the process under review to ensure that the rehearing remained fair, appropriate and directed towards determining the truth.

The judgment records that the birth parents applied to the Court of Appeal for permission to appeal out of time against the original 2013 fact-finding decision. At a directions hearing, the local authority conceded that the findings should be reconsidered in light of the criminal trial evidence. The Court of Appeal directed that the issue should first be addressed by the High Court under the inherent jurisdiction. The present judgment determined that the rehearing should proceed.