AB (A Child), Re

A fact-finding hearing in private-law children proceedings should proceed only where it remains necessary, proportionate and fair. The court must consider the relevance and quality of the allegations, the available evidence, the welfare implications, the prospects of a fair hearing, delay, and the overriding objective of active and efficient case management. Where repeated adjournments have produced extreme delay and the hearing is no longer necessary or proportionate, previous directions for fact-finding may be discharged. In deciding whether to order a child’s return from another state, the court must apply the welfare principle and checklist under the Children Act 1989. A court may order the child’s return without requiring the travelling parent to return, where that course best protects the child’s welfare and developing relationships.

The father applied in April 2013 for contact with his son, then aged three and a half. The mother made allegations of grooming, sexual abuse and violence, which led to repeated directions for a fact-finding hearing. Six attempts to hold that hearing had failed, and the child’s relationship with his father had meanwhile been re-established through supervised contact.

The mother travelled to Poland with the child and later sought further time abroad and permission to relocate permanently. The court had to decide whether to discharge the fact-finding directions, whether to require the child’s return to England, and whether interim care arrangements should change.

1. Fact-finding hearing. The court applied Practice Direction 12J, the overriding objective in Part 1 of the Family Procedure Rules 2010, the active case-management duty, and the statutory principle that delay is likely to prejudice a child’s welfare. The decision whether to hold a fact-finding hearing required consideration of whether it remained necessary, proportionate and fair.
2. The allegations concerned events many years earlier, with no independent or contemporaneous evidence. The evidence would depend substantially on credibility assessments, memories had inevitably faded, and a further hearing might suffer the same difficulties as the six previous attempts. The guardian’s position was that contact should progress even if the allegations were proved, subject to risk assessment. A further hearing was therefore neither necessary nor proportionate. Continuing to relist it would also be unfair because of the extreme delay. The earlier directions were discharged and the father’s application was to proceed to final determination without further delay.
3. Return of the child. Under the Children Act 1989, the child’s welfare was paramount. The court considered the welfare checklist, the likely effect of delay, and whether making an order was better for the child than making no order. The child needed education, continuity, and the preservation of his recently restored relationship with his father. Prolonged residence in Poland created a real risk that that relationship would deteriorate.
4. The court had jurisdiction under wardship and Practice Direction 12D to order the return of the child. It could not compel the mother to travel or control the timing of her return, but it could require the child to be returned. The order did not require the mother herself to return; possible arrangements included care by the step-father, a relative, or, if necessary, local-authority foster care.
5. The application to extend the return date was refused. The child was required to be returned to England by 4.00 pm on 23 August 2016.