GM & Anor v EB & Anor (Rules of Evidence)

In family proceedings, fairness requires each party to know the case and evidence relied on against them and to have a proper opportunity to answer it. This ordinarily requires directions for witness statements dealing with factual issues before the final hearing, served in sufficient time. A serious allegation introduced at the hearing, without adequate notice or opportunity to adduce evidence in response, may render the proceedings unfair, particularly where the finding materially affects the outcome. The court must apply the evidential requirements of the Family Procedure Rules 2010 to represented and unrepresented parties alike. A decision arising from an unfair hearing cannot stand. Lack of access to the hearing bundle may further breach natural justice and the requirements of Art 6 of the ECHR.

The appellants, a paternal grandfather and step-grandmother, appealed against an order made by Her Honour Judge Walker on 4 October 2023 concerning indirect contact with their six-year-old grandson. The judge had rejected the CAFCASS recommendation for reintroduced direct contact and ordered monthly indirect contact by photographs, cards, presents and letters.

The appeal challenged both the fairness of the final hearing and the judge’s welfare analysis. Shortly before and at the hearing, the mother relied on an unverified document containing a serious allegation that the paternal grandfather had assisted a breach of bail conditions. The appellants received the document only at court, without its exhibits, had limited time to consider it, and were not given an opportunity to file evidence in response. They also said they had not received the court bundle. The central issue was whether the proceedings, viewed as a whole, had been fair.

1. Appeal allowed. The order dated 4 October 2023 was set aside. The matter was remitted to a different judge of Circuit judge level for rehearing.
2. The court’s power under FPR 2010 r.22.1 to control evidence is subject to the overriding requirement of fairness in FPR 2010 r.1.1, informed by natural justice and Art 6 of the ECHR. Although r.22.5(1) gives the court discretion concerning service of witness statements, the court will ordinarily direct statements of the oral evidence on factual issues to be decided at the final hearing, allowing proper time to understand and answer the evidence.
3. At the final hearing, the mother’s document of 30 September 2023 had not been directed, had been filed contrary to the case management order, contained no statement of truth, and was served on the appellants only at court. The appellants were given approximately 20 minutes to consider it, without the exhibits, before the paternal grandfather was cross-examined on it.
4. The allegation that the paternal grandfather had assisted a breach of bail conditions was serious and disputed. It had not previously been raised in these proceedings. The appellants had no proper opportunity to file evidence in answer to it. The judge’s finding that the allegation was true informed wider findings that the appellants were willing to lie and that the mother’s perception of them was justified. Those findings materially influenced the welfare conclusion. The unfairness therefore affected the proceedings as a whole.
5. The absence of a hearing bundle also breached natural justice and Art 6, since the appellants were not given the same material as the court and other parties. Grounds 3 to 9, concerning the welfare analysis, were not determined because the matter required rehearing.

1. High Court (Family Division) The appeal from the order of Her Honour Judge Walker dated 4 October 2023 was allowed. The order was set aside and the application was remitted to a different judge of Circuit judge level.
2. Family Court, Coventry Her Honour Judge Walker ordered monthly indirect contact between the appellants and P by photographs, cards, presents and letters, rejecting the CAFCASS recommendation for reintroduced direct contact.