SP v DM

A fact-finding judge may conclude that an allegation is proved, unproved, or false where the evidence permits. The court is not confined to a binary proved-or-unproved conclusion.

The court has an independent protective duty towards vulnerable parties. That duty does not automatically require an adjournment or alternative questioning where the party wishes to proceed, is medically able to participate, and appropriate participation directions are established and reviewed. In children proceedings, case management must remain proportionate and relevant. The court may select the allegations requiring determination, concentrating on those material to the child’s welfare and risk.

The mother appealed against a child arrangements order made by Recorder Wood KC following a six-day fact-finding hearing concerning allegations about the father’s conduct towards the child and the mother. The appeal challenged the conduct of the hearing while the mother was heavily pregnant, the arrangements for her evidence, the alleged absence of a ground rules hearing, and the restriction of allegations in the schedule.

Permission had been granted on limited grounds by Mostyn J, including whether the court had an independent duty to adjourn or adopt alternative questioning despite the mother’s wish, expressed through counsel, to continue. The central issues were whether the hearing was unfair and whether the Recorder had failed in her protective and case-management duties.

1. Appeal dismissed. The fact-finding hearing was conducted fairly. The Recorder had made and reviewed participation directions, allowed breaks, monitored the mother’s condition, and followed the medical advice available to the court.
2. The court possesses an independent inquisitorial protective duty towards a vulnerable party. That duty may require an adjournment where the party is plainly unable to do justice to the case or is physically or psychologically unfit to continue. It did not require an adjournment here. The mother wished to proceed, repeatedly confirmed that she was able to do so, had medical clearance to participate, and was supported by experienced lawyers.
3. There had been a ground rules hearing within the meaning of Practice Direction 3AA. It need not be a separate hearing. The participation directions were properly reconsidered at the start of the fact-finding hearing. The complaint that no ground rules hearing had occurred was therefore unsustainable.
4. The court’s duty to consider the form of a vulnerable person’s evidence did not mean that the court had to impose an alternative form of questioning where none was requested and where the mother wished to give evidence in court. In any event, recorded questions and answers were used for the final part of her evidence.
5. A fact-finding judge may find an allegation proved, unproved, or false. The judge is not restricted to saying only that an allegation was proved or unproved. Nor is a specific allegation of fabrication required where the evidence, including the testing of the parties’ accounts, makes falsity apparent and the issue is central to the case.
6. Case management in children proceedings must be proportionate and relevant. The court is not required to determine every allegation advanced by a party. It may select allegations material to the child’s welfare and risk, rather than permit an unrestricted examination of the parties’ relationship.
7. The stay was removed. Contact was to resume under the Recorder’s order, beginning with one-hour contact on Saturdays and Mondays and thereafter extending in accordance with that order, subject to any necessary urgent variation because the child had started nursery.

• High Court (Family Division): appeal against the order of Recorder Wood KC dated 22 December 2022 dismissed. The stay was removed and contact was directed to resume in modified stages.
• Mostyn J: permission to appeal was granted on limited grounds; other grounds were refused or certified as totally without merit. The interim stay was continued pending the appeal.
• Recorder Wood KC: made a child arrangements order following a fact-finding hearing and found the mother’s allegation that the father had behaved inappropriately towards the child to be untrue.