CLB v SLB

Appeals from case-management decisions attract a wide margin of discretion. Intervention is justified only for an error of principle, reliance on irrelevant matters, failure to consider relevant matters, or a decision outside the generous ambit of discretion. In child-arrangements proceedings, a separate fact-finding hearing is unnecessary where earlier findings remain binding and later allegations are part of the welfare issue rather than distinct factual disputes. The appointment of a guardian under Family Procedure Rules 2010, rule 16.4, depends on the child’s best interests and is not dictated by Cafcass guidance. A section 7 report must, however, address material evidence bearing on the reliability and weight of the child’s wishes. An appeal may therefore be allowed in part to require an addendum report while leaving other case-management decisions intact.

The father appealed against case-management directions made by HHJ Hughes QC in proceedings concerning enforcement or variation of a child-arrangements order. He challenged the refusal of a fact-finding hearing concerning alleged parental alienation and domestic abuse, the refusal to appoint a rule 16.4 guardian, and the direction that Islington prepare a section 7 report confined to the child’s ascertainable wishes and feelings.

The appeal arose after earlier welfare proceedings in which a separate fact-finding hearing had been considered unnecessary and findings had been made against the father. On appeal, contact notes not before the judge below disclosed an apparent discrepancy between the child’s previously positive contact with his father and his later stated wish to have no contact. The central issues were whether the case-management decisions were wrong or unjust for serious procedural irregularity and whether the section 7 report’s remit was too narrow.

1. Appeal allowed in part. The appeal was dismissed on the challenges to fact-finding, the appointment of a guardian, the choice of Islington as section 7 reporter, the adequacy of the reasons, and the contents of the order.
2. Under FPR 30.12(3), an appellate court should interfere with a case-management decision only where the judge erred in principle, took account of irrelevant matters, failed to consider relevant matters, or reached a decision outside the generous ambit of discretion. The approach in Re TG (A Child) [2013] EWCA Civ 5 was applied. The court must nevertheless ensure a fair and proportionate process that has regard to Articles 6 and 8 and the child’s welfare.
3. The earlier findings and welfare judgment were binding and provided a proper starting point. There was no evidential basis for a separate fact-finding hearing on parental alienation or domestic abuse. The alleged conduct was closely bound up with the welfare question of why the child resisted contact.
4. The appointment of a guardian under FPR 16.4 and Practice Direction 16A was a discretionary best-interests decision. Cafcass’s view that the case met some criteria was not binding. On the material before HHJ Hughes QC, refusal was unimpeachable and the application was premature.
5. The section 7 report, however, should have been framed to consider the child’s expressed wishes in the light of the contact notes. Those notes disclosed an apparent discrepancy capable of bearing on the authenticity, balance and weight of the child’s wishes. The appellate court therefore remitted the matter to the Central Family Court for an addendum section 7 report by Islington addressing that issue.
6. The court also considered the principles governing fresh evidence under FPR 30.12(2)(b), including the criteria derived from Ladd v Marshall [1954] 1 WLR 1489, but treated the appeal as turning principally on fairness and the overriding objective.

1. High Court (Family Division): HHJ Hughes QC made case-management directions on 5 October 2020. The father appealed.
2. High Court (Family Division): Permission to appeal was granted by Lieven J on 20 November 2020.
3. High Court (Family Division): The appeal was allowed only in relation to the remit of the section 7 report. The case was remitted to the Central Family Court for an addendum report by Islington.