N (A Child)

A vulnerable party must receive the participation measures necessary to give their best evidence and participate effectively in family proceedings. The court and the parties have continuing duties to identify vulnerability and consider participation directions.

A wholesale failure to apply the prescribed procedure makes an unfair trial highly likely. Whether a rehearing is required depends on all the circumstances. The likely result of a rehearing is not the principal consideration where the original process was fundamentally unfair, particularly when permanent separation of a parent and children is at stake.

In care proceedings concerning unexplained bruising to a child, the Family Court found that either the mother or her partner had inflicted non-accidental injuries and that the other knew who was responsible. During the hearing, the judge encountered serious difficulties with the mother's evidence, but the mother had no cognitive assessment, intermediary or participation directions.

Subsequent psychological and intermediary assessments established that the mother had extremely low verbal ability, significant communication difficulties and required an intermediary. The Family Court nevertheless refused to reopen its findings because there were no solid grounds for believing that a rehearing would produce a different result.

The mother appealed, contending principally that the findings could not stand because the absence of the necessary support had deprived her of a fair trial.

1. Appeal allowed and case remitted for rehearing. The mother had been denied a fair trial. The resulting decision was unjust because of a serious procedural irregularity within Rule 52.21(3)(b) of the Civil Procedure Rules 1998.

2. Part 3A of the Family Procedure Rules 2010 and its accompanying Practice Direction provide a specific structure for securing effective access to the court by vulnerable parties and witnesses. The court must consider whether vulnerability is likely to diminish participation or the quality of evidence and, if so, whether participation directions are necessary. The duty to identify vulnerability rests on both the court and the parties and continues throughout the proceedings.

3. A wholesale failure to apply that structure makes it highly likely that the trial will be unfair. The mother received no participation directions, ground rules hearing, intermediary or bespoke special measures. Although the trial judge did all she reasonably could once concerns emerged, ordinary case-management measures did not enable the mother to give her best evidence. Once the difficulties became apparent, an adjournment for cognitive assessment would have been preferable.

4. The usual first-stage test for reopening findings balances finality against soundly based welfare decisions and asks, above all, whether solid grounds exist for believing that a rehearing may produce different findings. That emphasis is appropriate when fresh evidence bears directly on the facts. This case concerned a fundamentally unfair process. Whether to order a retrial therefore depended on all the circumstances, and not only or principally on the likely outcome.

5. A rehearing does not follow inevitably whenever vulnerability was previously unidentified. Here, however, the procedural failure was fundamental, the mother faced permanent separation from two infant children, and later assistance could not cure the unfairness of the crucial fact-finding hearing. The form and extent of the rehearing were left for directions by the Family Division Liaison Judge.

1. Court of Appeal (Civil Division): By [2019] EWCA Civ 1997, unanimously allowed the mother's appeal and remitted the case for a rehearing.
2. Guildford Family Court: Refused the mother's application to reopen the fact-finding determination and refused permission to appeal.
3. Guildford Family Court: Following a fact-finding hearing, found that either the mother or her partner had caused non-accidental injuries to the child and that the other knew who was responsible.