D (Appeal : Failure of Case Management)

Family proceedings must be actively and effectively managed. The court must set a realistic timetable, give clear directions and prevent avoidable delay. In cases involving alleged domestic abuse, the court may conduct questioning itself to protect an alleged victim, particularly where direct cross-examination by the alleged abuser would be intimidating. The relevant consideration is the relationship between the parties, not whether individual questions are sexual or non-sexual. A court should not shift its responsibility for questioning to a child’s advocate. Appellate intervention remains exceptional in ordinary case management decisions, but is justified where cumulative failures cause serious procedural unfairness, prolonged delay or an unworkable hearing.

The mother appealed a case management ruling made on 11 May 2017 by HHJ Kushner QC in private law proceedings concerning contact between the father and their child. The mother alleged serious abuse. The father was unrepresented and had not seen the child since 2013. The fact-finding hearing had been listed and adjourned repeatedly, and the court had not settled an effective method or timetable for the mother’s cross-examination.

The appeal challenged the permission for the father to question the mother directly on non-sexual matters, the handling of his non-compliance with directions, pressure placed on the child’s solicitor to conduct questioning, inadequate reasons and the general failure of case management.

Appeal allowed. The proceedings were remitted for a fresh hearing before a different judge.

1. The repeated failure to hold the fact-finding hearing, together with the absence of a timetable capable of bringing it to an end, amounted to a chronic failure of judicial case management. The resulting delay was prolonged and indefensible, and this ground alone justified appellate intervention.
2. Although an appellate court is normally slow to interfere with case management, the discretion is subject to limits. Under FPR 30.12, an appeal may succeed where the decision is wrong or unjust because of a serious procedural or other irregularity.
3. The judge failed to appreciate the powers available under Practice Direction 12J. The court could conduct questioning itself where necessary to protect an alleged victim and to ensure that both parties could give their best evidence.
4. The decision to permit direct questioning on some issues but not others was unprincipled and unworkable. The need for protective measures arose from the relationship between the parties, rather than from the sexual or non-sexual character of particular questions. The previously settled arrangements should not have been reopened without proper justification, particularly when the father did not seek that change.
5. The reasons given for the ruling were inadequate. The judge should have explained the substantial issues more fully when invited to do so.
6. It was inappropriate to expect the child’s solicitor to conduct robust cross-examination of the mother as a means of relieving the court of its own responsibility. The advocate’s questioning remained a matter of professional judgment, directed principally to the child’s case, although it could also assist the court by addressing gaps in the evidence.

The matter was remitted for a five-day hearing before HH Judge Newton. The mother’s evidence already given in chief was to be extracted from the transcripts and made available to the new judge.

• Family Court sitting at Manchester: HHJ Kushner QC made the challenged case management ruling on 11 May 2017.
• High Court (Family Division): The appeal was allowed and the proceedings were remitted for hearing afresh before HH Judge Newton.