G (A Child: Scope of Fact-finding), Re

A fact-finding hearing in care proceedings is a core case-management decision. The court must apply the Oxfordshire factors flexibly and ask whether the likely result of investigating a disputed past event will materially assist the welfare and care-planning decision for the child.

Final decisions about risk must rest on proved facts, not suspicion. However, that does not require determination of every disputed historic allegation. A court may decline a lengthy and burdensome inquiry where present, established evidence provides a sufficient factual basis to assess the type, likelihood, gravity and management of future risk, and where the proposed finding would not realistically alter the available care plan.

In care proceedings concerning X, the local authority and children’s guardian sought a fact-finding hearing into the death, more than six years earlier, of X’s half-brother Z. They alleged that the mother had caused Z’s fatal head injuries by shaking and/or impact when she was herself aged 16.

The Family Court declined to direct the hearing. It held that a determination about Z’s death would not materially alter the assessment of current risk or future care planning for X, which could instead proceed on the evidence of the mother’s present characteristics, parenting and support needs.

The local authority and guardian appealed. The central issue was whether the judge was wrong to conclude that a fact-finding hearing was unnecessary to make a lawful and effective assessment of the risk of harm to X.

1. Appeals dismissed by a majority. Peter Jackson LJ, with whom Bean LJ agreed, held that the judge had identified and applied the correct case-management question: whether a finding about Z’s death would realistically be likely to have a material effect on the orders and care planning for X.

2. A decision about the scope of fact-finding requires a practical projection of the likely outcomes if the direction is made or refused. The judge may take a fair, high-level view of the evidence and its possible inferences for that limited purpose. That does not turn the case-management exercise into an impermissible mini-trial.

3. The final assessment of risk must be based on proved facts and not on suspicion. But the judge had not treated an unproved allegation about Z as a fact. He took the local authority’s case at its realistic highest to decide whether an investigation was necessary. The established evidence about the mother’s emotional volatility, impulsivity, mental health, substance use, current parenting and available support could provide a lawful factual basis for assessing risks to X.

4. The court was entitled to conclude that the four risk questions could be answered without determining responsibility for Z’s death. The potential harm included very serious physical injury; its likelihood could be assessed from present evidence; its consequences could be of maximum severity; and management depended upon insight, support and safeguards. A finding concerning a momentary loss of control years earlier would not materially change that exercise or the care plan.

5. The judge was also entitled to weigh the anticipated delay, cost, impact on the mother and consequential impact on X, the passage of time, and the limited likely evidential product. His informed balancing exercise disclosed no error justifying appellate intervention.

6. Baker LJ dissented. He would have allowed the appeals and directed a fact-finding hearing before another judge. In his view, whether the mother caused Z’s fatal injuries was central to the type and likelihood of future harm and was necessary for a safe welfare assessment.

• Court of Appeal (Civil Division) — dismissed the local authority’s and children’s guardian’s appeals and upheld the refusal to direct a fact-finding hearing: [2025] EWCA Civ 1044.
• Family Court at West London — HHJ Willans, sitting as a Deputy High Court Judge, refused to direct a fact-finding hearing into Z’s death in ongoing care proceedings concerning X.