P (A Child)

A fact-finding hearing in care proceedings is a discretionary case-management decision. The court must decide whether it is necessary and proportionate on the individual facts, even where a party wishes to pursue findings and the threshold is already crossed by admissions.

Where credibility is central, the judge must assess all relevant oral, written, circumstantial and independent evidence. The judgment must explain why one account is preferred and how conflicting material has been reconciled. A broad-brush credibility assessment cannot justify serious findings where material evidence has not been addressed.

The appeal arose from care proceedings concerning P. The appellant intervenor admitted domestic abuse, some injuries and that P had suffered significant harm. The local authority and children’s guardian accepted that those admissions crossed the threshold and did not seek further findings.

The mother nevertheless sought findings concerning rape, controlling and coercive behaviour and further bruising. HHJ Oliver ordered a separate fact-finding hearing and later made the disputed findings. The intervenor appealed, arguing that the hearing was unnecessary and that the findings were inadequately reasoned because material evidence bearing on credibility had not been considered.

1. Appeal allowed. The findings made by HHJ Oliver were set aside. The parties had agreed a revised threshold, and the case was to proceed to a welfare hearing without a further fact-finding hearing.
2. A fact-finding hearing is a discretionary case-management decision. The judge must determine whether it is right and necessary on the individual facts. The relevant considerations include the child’s interests, delay, public cost, likely evidential result, necessity, relevance to future care plans, impact on the parties, prospects of a fair trial and the justice of the case. The Court applied the approach summarised in A County Council v DP [2005] EWHC 1593 (Fam). The first-instance judge had not undertaken that structured analysis.
3. Where credibility is central, the judge must consider all relevant evidence, including contemporaneous documents, surrounding circumstances and independent material. The judge must explain why one account is preferred and how conflicting extraneous evidence has been reconciled. The findings on rape relied principally on the mother’s account and a perceived reason for believing it, without properly addressing her failure to co-operate with the police investigation or the circumstances in which the allegation arose.
4. The same error affected the findings concerning controlling behaviour and the bruising. Those conclusions were anchored in the general credibility assessment and could not be separated from the defective approach. The first-instance judge’s advantage in seeing and hearing witnesses did not prevent appellate intervention where relevant evidence had not been considered.

• Court of Appeal (Civil Division): [2019] EWCA Civ 1346 allowed the intervenor’s appeal. The disputed findings were set aside and the matter was to proceed to a welfare hearing on the agreed revised threshold.
• Central Family Court: HHJ Oliver ordered a separate fact-finding hearing and made findings concerning rape, controlling and coercive behaviour and bruising. The judgment citation was not stated in the judgment.