The Mother v The Father

There is no general right to cross-examine in family proceedings. Under the Family Procedure Rules, the court may limit cross-examination and, where fair and proportionate, prevent it altogether. The court must exercise that power as part of its broader case-management discretion, having regard to the overriding objective and the child’s welfare.

On appeal, the question is whether the decision was wrong or unjust because of a serious procedural or other irregularity. An appellate court should not interfere with a case-management decision falling within the lower court’s discretion unless the relevant threshold is met. Written evidence, together with cross-examination of an independent Cafcass officer, may provide a fair and proportionate alternative to oral evidence from the parents.

The Mother appealed from a decision of the Family Court at Stoke-on-Trent, made by lay magistrates on 18 October 2022 in proceedings concerning arrangements for an eight-year-old child. The magistrates directed that the final hearing proceed without either parent being cross-examined. The Mother argued that this was procedurally unfair, that the court had insufficiently addressed disputed factual matters, and that it had prejudged the evidence of the Cafcass officer.

The appeal concerned the scope of the court’s power to control evidence and the circumstances in which an appellate court may interfere with a case-management decision. The central issue was whether the magistrates’ decision was wrong or unjust because of a serious procedural or other irregularity.

1. Appeal dismissed. The magistrates’ decision fell within their case-management powers and discretion.
2. FPR 22.1 permits the court to limit cross-examination and, read with FPR 22.6, includes power to prevent cross-examination altogether. There is no general entitlement to cross-examine. The court may decide that written evidence and questioning of another material witness provide a fairer and more proportionate means of determining the issues.
3. Under FPR 30.12(3), the appeal test was whether the decision was wrong or unjust because of a serious procedural or other irregularity. The approach in Re TG (A Child) was relevant, subject to the later clarification in Re P that the test is whether the decision was wrong rather than plainly wrong.
4. The magistrates had the parties’ written statements and could permit counsel to cross-examine the Cafcass officer. They were entitled to conclude that oral evidence from the parents would not materially assist. Disputes concerning historic care, alleged controlling behaviour, school choice and extra-curricular activities could be assessed from the written evidence or by submissions, and were not necessarily central to the child’s future welfare.
5. The magistrates had not prejudged the case or acted contrary to natural justice. Their decision to obtain the Cafcass officer’s view about the glasses issue was a proportionate means of assessing its relevance to the child’s welfare, while the officer remained available for cross-examination.
6. The procedure adopted was for the tribunal to determine, subject to basic principles of natural justice and, where applicable, Article 6. The judge also observed that a lower court adjourning a final hearing for an interlocutory appeal should consider whether continuing to judgment would be more effective and proportionate.

• High Court (Family Division): appeal from the Family Court at Stoke-on-Trent, decided by lay magistrates on 18 October 2022. Appeal dismissed.