Re H-W (Care proceedings: Further fact-finding hearing)

A court deciding whether to direct a fact-finding hearing in care proceedings must conduct a flexible proportionality analysis. The central question is whether the investigation is right and necessary to determine the welfare issues justly. The child’s interests, delay, cost, evidential value, relevance to care plans, impact on the parties, prospects of a fair trial and the overall justice of the case are relevant.

At the case-management stage, the apparent quality of the evidence will rarely carry substantial weight unless it is clearly particularly strong or weak without detailed assessment. The court must avoid a mini-trial because findings can be made only on the totality of the evidence, which may be incomplete at that stage.

Long-running care proceedings concerned four children living with their mother. Earlier findings established that the mother and her partner, F3, had failed to protect the children from sexual abuse. Following earlier appeals, the Supreme Court remitted the welfare decision for rehearing.

Before that rehearing, another child, Y, alleged that F3 had sexually abused her several years earlier. The local authority applied for a further fact-finding hearing. HHJ Richard Clarke refused the application after considering the delay, procedural complexity and his assessment that the allegations had low prospects of being proved. He had not viewed or read the record of Y’s police interview.

The local authority appealed. The central issue was whether the judge’s refusal fell outside the permissible ambit of his case-management discretion.

1. Appeal allowed. The refusal to direct a further fact-finding hearing was plainly wrong and outside the generous ambit of the judge’s discretion. The proceedings were remitted to the Family Division Liaison Judge for directions concerning allocation and further progress.

2. A decision whether to hold a fact-finding hearing in proceedings under Part IV of the Children Act 1989 requires a proportionality analysis applying Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam) and Re H-D-H (Children), Re C (A Child) [2021] EWCA Civ 1192. The factors must be applied flexibly in the light of the overriding objective. The broad question is whether the investigation is right and necessary to deal justly with the welfare issues.

3. The magnetic factors were the necessity of investigating Y’s allegations and the relevance of the potential findings to the children’s future care plans. The principal welfare issue was whether the mother and F3 could protect the children from future sexual abuse. If Y’s allegations were proved, the care plans would be fundamentally different and F3 could not perform a protective role.

4. The apparent quality of the evidence may be considered at the case-management stage, but it will rarely be a powerful factor unless the evidence is clearly particularly strong or weak without detailed assessment. A mini-trial is wrong in principle and wasteful because findings depend on the totality of the evidence, which may not yet have been filed.

5. The judge was not entitled to assess the prospects of proof as low without considering the record of Y’s police interview and the other available statements. At this preliminary stage, little or no weight should have been attached to the historic nature of the allegations, the apparent absence of supporting medical evidence, the absence of allegations in earlier proceedings, or the lack of support from Y’s siblings. Those matters were relevant to the eventual fact-finding hearing.

6. The judge therefore took irrelevant matters into account and failed to give proper weight to relevant matters. A further fact-finding hearing concerning Y’s allegations against F3 was required. The Court of Appeal expressed no view on the truth of the allegations or the ultimate findings.

1. Court of Appeal (Civil Division): The local authority’s appeal was allowed. The refusal to direct a further fact-finding hearing was set aside, and the proceedings were remitted for directions concerning allocation and further progress: [2023] EWCA Civ 149.

2. Family Court at Watford: HHJ Richard Clarke refused the local authority permission to pursue further findings concerning Y’s allegations against F3.

3. Supreme Court: In an earlier appeal within the care proceedings, the court unanimously allowed the parents’ appeals and remitted the final welfare decision for rehearing: [2022] UKSC 17.

4. Court of Appeal: In that earlier appeal, the court had dismissed the mother’s appeal by a majority: [2021] EWCA Civ 1451.