Finding of Fact Hearings: Refocussing on the “Oxfordshire test” and case management 

Over the summer, Lord Justice Jackson gave the leading judgment in the Court of Appeal in H-D-H (Children) [2021] EWCA Civ 1192. The Appeal Court considered 2 appeals sequentially, each appealing case management decisions to not investigate allegations via a finding of fact hearing.  

The first of the appeals known as “H-D-H” appealed a case management decision of a circuit judge whom determined that a finding of fact hearing was not necessary or proportionate. The appeal court found that the circuit judge applied the Oxfordshire considerations, weighed all the relevant factors in order to reach a decision that was open to her.   

The second appeal, known as “C” was an appeal of a case management decision by a circuit judge determining that a finding of fact hearing was no longer necessary as consequence of unforeseen factors, despite having previously determined that it was necessary. The dominant feature of the reasoning being the impact of delay. The grounds of appeal were that the Judge was wrong to decide that the injuries sustained by the child in the mother and baby placement should not be litigated given their serious and significant nature, their importance for future risk assessments in respect of the mother and/or Mr I, and their importance for J’s life story work.

The Court of Appeal considered that the judge was entitled to review matters when events conspired to delay the fact finding hearing, however, the overall approach was too narrow. The judge set the matter up for a 5-day final hearing. Having dispensed with the need for a fact find, the lower judge must have reached the assumption that the mother would not succeed in seeking the child returned to her care, because the court could simply could not have considered returning the child to mother’s care when he suffered such serious injuries in her care without determining the mother’s culpability or otherwise. Additionally, the child was injured when under the supervision of a professional foster carer. It is unsatisfactory from the point of view of the public interest, and potentially unjust to both Mr I and the mother, that these unproven allegations should hang over them both indefinitely when it is at least highly possible that they could be satisfactorily clarified. The Court of Appeal that these two matters were sufficient to identify that the judge’s decision was too narrow and wrong. The appeal was allowed.   

In this decision, Lord Justice Jackson helpfully refocuses the mind on the “Oxford test” when it comes to considering the necessity of a finding of fact hearing.  At paragraph 3 we are reminded:  

Decisions about the scope of fact-finding are core case management decisions with particular consequences for the length and cost of proceedings, the impact of the litigation on parties and others, and the allocation of court time. They arise in private law proceedings, including when a court is considering whether there should be a fact- finding hearing in relation to any disputed allegation of domestic abuse under PD12J, and in public law proceedings when the court is considering whether it should investigate a fact alleged as forming part of the threshold or as being relevant to the welfare decision. I will outline the statutory framework, administrative guidance, and the caselaw.  

We are reminded of the statutory provisions which place a responsibility on the case management judge to robustly manage the issues in the case in the Children Act 1989, Children and Families Act 2014, and the Family Procedure Rules 2010. Further, we are taken back to the recent publications of “The Road Ahead” published in Jun 2020 and June 2021, the View from the President’s Chambers’ (July 2021), and, Public Law Working Group. We are reminded that the principles in these publications must feature at the front of the mind of practitioners when appearing in the family court.   

However, most importantly, Lord Justice Jackson takes us back to Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031.  In “Oxfordshire” McFarlane J held that whether or not a particular fact-finding exercise is conducted is a question for the court’s discretion and is not a matter of lawfulness (paragraph 17).  He went on to identify factors that are likely to be relevant to the application of discretion. That list of factors is: 

a) The interests of the child (which are relevant but not paramount);

b) The time that the investigation will take; 

c) The likely cost to public funds; 

d) The evidential result; 

e) The necessity or otherwise of the investigation; 

f) The relevance of the potential result of the investigation to the future care plans for the child; 

g) The impact of any fact finding process upon the other parties;

h) The prospects of a fair trial on the issue;

i) The justice of the case.”  

 In this judgement that refocuses the mind on Oxfordshire, Lord Justice Jackson gives us a number of additional take away points: 

a) Every fact-finding hearing must produce something of importance for the welfare decision (paragraph 21)

b) The shorthand of necessity does not translate into an obligation to conclude every case as quickly as possible, regardless of other factors (paragraph 21)

c) Sometimes, findings that cross the threshold at a minimum level will not reflect the reality.  (paragraph 21) 

c) The factors in Oxfordshire should be approached flexibly (paragraph. 22) 

  •  When considering the welfare of the child, the significance to the individual child of knowing the truth can be considered, as can the effect on the child’s welfare of an allegation being investigated or not. 
  • The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases. 
  • The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument. 
  • The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered. 
  • The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met. 
  • The impact of any fact finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children. 
  • The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date. 
  • The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.  

 Lord Justice Jackson leaves us with the following: 

  1. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise. 
  2. It is important for us to affirm that fundamental legal principles do not change in response to workload. At various points in the cases under appeal it has been said that there needs to be ‘a culture shift’ on the part of professionals away from the ‘leave no stone unturned philosophy’. But the proper approach has never been to leave no stone unturned. The desired shift in professional practice can be achieved by paying fresh attention to the fundamental principles of good case management. 

 A link to the judgement can be found at:  https://www.judiciary.uk/wp-content/uploads/2021/07/H-D-H-Children-judgment.pdf  

Written by Senior Consultant Barrister, Kerri O’Neill

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