P And E (Care Proceedings: Whether to Hold Fact-Finding Hearing), Re

Whether to hold a fact-finding hearing in care proceedings is a flexible, case-specific case-management decision governed by the overriding objective. The relevant factors do not carry equal weight. The necessity of an investigation and the relevance of its possible outcome to future care plans are usually particularly important. A hearing is necessary where, without findings about serious injuries, future risks and safeguards cannot be reliably assessed, even if the parents have positive parenting assessments and cooperate with professionals. Delay, cost and the harm caused by separation must be weighed, but cannot justify dispensing with an investigation needed for safe care planning. At the case-management stage, the court should not predict an overwhelmingly likely factual outcome from incomplete evidence. Appellate intervention remains limited, but is justified for an error of principle or material omission.

The local authority and the children’s guardian appealed from a decision of HH Judge Gillespie in the Family Court at Nottingham in care proceedings concerning two children, including an infant who had sustained fractures and subconjunctival haemorrhages. The judge concluded that a fact-finding hearing was neither necessary nor proportionate, declined to determine the threshold criteria and directed planning for the children’s return to their parents.

The appellants argued that the judge had focused impermissibly on a comparable first-instance decision and had failed to assess how findings about the injuries would affect future risk and care planning. The central issue was whether the proceedings could fairly and safely be determined without a fact-finding hearing.

The appeals were allowed. The order of 6 March 2024 was set aside. The fact-finding hearing was directed to proceed, and the proceedings were remitted for urgent case management directions.

1. The decision whether to hold a fact-finding hearing is a case-management decision. The Court of Appeal may interfere only for an error of principle, reliance on irrelevant matters, failure to consider relevant matters, or a decision plainly outside the generous ambit of discretion. The judge crossed that high threshold.
2. The governing approach is the flexible, fact-sensitive framework identified in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam) and considered, approved and amplified in Re H-D-H (Children) [2021] EWCA Civ 1192. The factors include the child’s interests, time, cost, evidential result, necessity, relevance to future care plans, impact on the parties, prospects of a fair trial and the justice of the case. Necessity and relevance to future care plans are not merely items in an equal-weight checklist.
3. The judge wrongly compared the case closely with Derbyshire County Council v AA and Others [2022] EWHC 3404 (Fam). There were material differences. The injuries here appeared to involve at least two mechanisms, there was evidence capable of supporting deliberate infliction, and the children had not remained safely in their parents’ unsupervised care after the injuries were discovered. A judge at a case-management hearing was not in a position to conclude that a particular, less serious factual outcome was overwhelmingly likely. As explained in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838, the evidence normally required an overview at the fact-finding hearing.
4. The positive parenting assessment did not justify dispensing with the hearing. Its central conclusion was that, without findings about how the injuries occurred, the assessor could not safely recommend how future risk should be managed. Without findings, the extent of the risk and appropriate safeguards remained unknown.
5. This was not properly characterised as a single-issue case. Although the alleged threshold events might concern one occasion, the welfare assessment had to consider the wider evidence about the family, parental capacity and relevant risk factors. Those factors, identified by reference to Re BR (Proof of Facts) [2015] EWFC 41, might not independently establish the threshold under section 31 of the Children Act 1989 but remained relevant to the orders required after findings.
6. The harmful effects of delay, separation and litigation costs were important. However, the necessity of understanding future risk and the relevance of findings to care planning were decisive. The court gave no indication of the eventual factual or welfare outcome.

Lewis LJ and Whipple LJ agreed with Baker LJ.

1. Court of Appeal (Civil Division) allowed the appeals, set aside the order of 6 March 2024, directed that the fact-finding hearing proceed and remitted the proceedings for urgent case management directions: [2024] EWCA Civ 403.
2. Family Court at Nottingham HH Judge Gillespie decided in care proceedings NG23C50153 that a fact-finding hearing was unnecessary and disproportionate, declined to determine the threshold criteria and made directions concerning rehabilitation and child-in-need planning.