A v R & Anor

In family proceedings, a court may determine a final hearing summarily and without oral evidence where the circumstances justify that course. However, each party must first have a fair opportunity to make submissions on the issues that the court must finally decide. A judge must not determine the merits of a contested child arrangements order without hearing the parties’ substantive cases on the order sought and the child’s best interests.

Where expert evidence previously considered necessary is deficient through no fault of a party, that party should ordinarily be allowed a short adjournment to make a properly constituted application for replacement evidence before necessity is reconsidered.

The father appealed from an order made by HHJ Scarratt in the Family Court concerning arrangements for his 13-year-old daughter. The order provided for limited monthly and holiday contact and brought lengthy private-law proceedings to an end. The father also challenged the refusal of permission to instruct a replacement psychologist after the jointly instructed expert had failed to comply with his instructions.

The appeal concerned whether the final hearing had been conducted fairly, whether the court could proceed summarily, and whether an adjournment should have been granted to enable a properly constituted expert-evidence application.

1. The appeal was allowed. The judge below had heard submissions on whether to proceed summarily, but no substantive submissions on whether a final child arrangements order should be made or on the appropriate level of contact. Making a contested final order without hearing those arguments amounted to a serious procedural irregularity.
2. Family courts have broad case-management powers. In an appropriate case they may determine issues on written evidence and submissions, or make final orders without a full oral hearing. That power remains subject to the basic requirements of a fair hearing. Each party must have a fair opportunity to present submissions on the issues finally determined. This applied notwithstanding the court’s inquisitorial role and the child’s welfare as the paramount consideration under the Children Act 1989.
3. The judge had previously determined that expert evidence was necessary to resolve the proceedings justly. The report eventually produced was deficient, and the deficiency was not attributable to the father. The father had only a few hours’ notice of the problem and had no realistic opportunity to prepare a replacement-expert application. The judge should therefore have granted a short adjournment to permit a properly constituted application under Part 25 of the FPR 2010 and pursuant to s 13 of the Children and Families Act 2014. The application might ultimately have failed, but it should first have been properly made.
4. The remaining grounds, including the weight to be given to the child’s wishes and feelings and the merits of the final contact order, were not determined. They were left for consideration at the re-listed final hearing.
5. The matter was listed before a judge of the Family Division for further directions towards a final hearing, including consideration of a further Part 25 application.

• High Court (Family Division): appeal from the order of HHJ Scarratt dated 28 November 2017 allowed. The matter was listed for further directions towards a final hearing.