A v A Local Authority

Family courts and all parties must identify vulnerability at the earliest possible stage and keep the issue under review throughout the proceedings. Representatives should address possible vulnerability proactively, especially where they cannot meet a client in person.

A failure to comply with the participation provisions does not automatically invalidate the decision. An appellate court asks whether there was a serious procedural or other irregularity and, if so, whether it made the decision unjust. Where unidentified cognitive and communication difficulties may have diminished a witness’s evidence, and credibility was central to the findings, the absence of appropriate participation directions may render the hearing unfair.

A intervened in care proceedings concerning another family’s child. Following a fact-finding hearing conducted remotely, the Family Court found that she had inflicted facial injuries on a child and had tried to blame other carers.

After the hearing, psychological and intermediary assessments identified previously unrecognised cognitive and communication difficulties. A sought permission to amend her appeal and adduce this evidence. She contended that the absence of a ground rules hearing, an intermediary and other participation measures made the findings unsafe.

The central issue was whether the failure to identify her vulnerability and make appropriate participation directions amounted to a serious procedural irregularity which made the decision unjust.

1. Appeal allowed. Permission was granted to amend the grounds of appeal and adduce the evidence concerning A’s cognitive difficulties. The findings against her were set aside because the failure to identify those difficulties and make appropriate participation directions was a serious procedural irregularity which made the outcome unjust.

2. Part 3A of the Family Procedure Rules and Practice Direction 3AA are fundamental to family justice. The court must consider whether vulnerability is likely to diminish a party’s participation or the completeness, coherence or accuracy of their evidence. Where necessary, it must make participation directions, which may include a ground rules hearing, straightforward questioning, breaks and assistance from an intermediary.

3. The duty to identify vulnerability arises at the earliest possible stage and continues until the proceedings are resolved. It rests on the court, the parties and their representatives. Representatives should actively consider vulnerability at the outset of care proceedings. The judge conducting the initial case management hearing should routinely investigate whether Part 3A may be engaged. The question must be reconsidered at later stages, including when a party is joined.

4. Failure to comply with Part 3A does not invariably produce a successful appeal. The appellate court must determine whether there was a serious procedural or other irregularity and whether the irregularity made the decision unjust. The observation in Re N (A Child) [2019] EWCA Civ 1997 that wholesale failure to apply the procedure makes unfairness highly likely did not create an automatic rule.

5. Here, the later assessments had an obvious bearing on A’s demeanour and credibility. The findings depended substantially on adverse interpretations of her answers, conduct and apparent deflection. There was a significant possibility that knowledge of her comprehension and communication difficulties would have refined or altered that evaluation. Strong reasons therefore existed to suspect that she had lacked a fair opportunity to present her case.

6. The Court did not decide that the original findings were factually wrong and did not determine the remaining appeal grounds. The proceedings were remitted to the Family Division Liaison Judge for the South-Eastern Circuit to decide whether a rehearing was proportionate and in the children’s interests and, if so, to allocate it.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 8, allowed the appeal for serious procedural irregularity, set aside the findings against A and remitted the proceedings for a decision on whether a rehearing should take place.

2. Family Court at Guildford: Following a fact-finding hearing, HH Judge Nisa found that A had inflicted two facial injuries on a child and had attempted to implicate other carers. The judge subsequently clarified aspects of the findings and refused permission to appeal.