Re L (Fact-Finding Hearing: Fairness) 2022 EWCA Civ 169

Appeal before: Lord Justice Baker and Lord Justice Snowden

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Background Summary

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· This was a public law case concerning the welfare of L, a little girl aged 2 years.

· L has 2 older maternal siblings (different fathers). The authority got involved several years ago due to an altercation between one of those fathers and L’s father, resulting in L’s father getting a conviction of assault. That put the family on the child protection radar and triggered further allegations surrounding the family of cannabis misuse, anti-social behaviour and domestic abuse.

· Care proceedings were issued as a result of an initial assessment stating that L should live with her parents under an interim care order.

· At the time there were live private law proceedings in respect of the other two children (who, at that point, were each living with their respective father).

· The care proceedings were consolidated with the private law proceedings and L was permitted to remain in the care of her parents under an interim supervision order.

· Proceedings reached the point of an Issues Resolution Hearing [IRH] whereby the local authority proposed that L remain living with her parents but under no order. A refined threshold document was prepared and all parties agreed that irrespective of the local authority’s care plan the court should proceed to determine the allegations.

· The matter was listed for hearing and on day one the Recorder heard legal argument as to the necessity or otherwise to engage in a fact-finding hearing. The court determined that such a hearing was required and proceeded to hear 3 days of evidence. Within closing submissions the learned Judge heard argument on (a) absence of key witnesses and (b) weight to be attached to contemporaneous records.

· The Judge made the findings sought but also made additional findings.

Issues on Appeal

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· The parents of L sought permission to appeal and the same was granted on two grounds; (a) the Recorder was wrong to make findings that fell outside of the scope of the final threshold document and (b) the Recorder was wrong to find threshold made

out due to absence of evidence demonstrating a link between the events and L suffering, or being likely to suffer, significant harm at the time proceedings commenced.

Outcome of the Appeal

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· The appeal was dismissed. The Court of Appeal was satisfied that the Recorder had good reason to depart from the local authority threshold document noting that his findings were securely founded in the evidence and the fairness of the process had not been compromised. The judge was entitled to consider the totality of the evidence which included hearsay evidence.

Case Law referenced

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· Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10: Wall LJ stated that if a Judge were to ‘go off piste’ and make findings that are not contained in the threshold / findings document ‘then the Judge must be astute to ensure that (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised.’

· Re A (Applications for Care and Placement Orders: Local Authority Failings] [2015] EWFC 11: Sir James Munby P highlights the potential evidential hurdles of attempting to establish facts based on hearsay evidence.

· Re W (A Child) [2016] EWCA Civ 1140: MacFarlane LJ reminds us that there is likely to be a problem if the Judge goes outside of the ‘known parameters’ of the case

· Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947: Peter Jackson LJ brings Re G and Re W into sharp focus in his usual courteously blunt way, “Judges are entitled, where the evidence justifies it, to make findings of fact that have not been sought by the parties, but they should be cautious when considering doing so.”

Takeaway points

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· Threshold document: Ensure that there is a properly pleaded threshold at the earliest opportunity.

· Witness requirements: Identify your witnesses at an early stage. IF you are seeking to challenge an allegation you must say so and if relevant, request that witness is made available for challenge: ‘all of the legal representatives recognised that it was for the court to determine what order should be made if the s31 threshold was crossed. For those reasons, they ought to have identified at the earlier case management conference all relevant witnesses who they might wish to cross examine.’ (para 88)

· Availability of the witness: IF the witness is not available you must consider making an application to adjourn and if you decide not to then you must be alive to the consequence: ‘further if a relevant witness was not available it was open to a party to apply to adjourn the final hearing. No such application was made. In those circumstances, it is difficult for the appellant to complain that the recorder went ahead and reached a decision on the evidence put before him.’ (para 89)

· Scope of Findings, ‘off piste v outside of the parameters’: you need to always keep a close focus on where the evidence sits within the framework of the case as it appears ‘on paper’ versus how it comes across ‘live in evidence’. You need to be agile during a hearing. If, evidence is being heard that goes outside of the framework known on the papers then pause. Request a short break to consider matters. ‘It is almost invariably the case that the evidence will develop and expand during a contested hearing, often in ways which could not be fully predicated at the outset of the hearing, particularly where, as here, there are several parties pursing his or her own case and seeking to draw out different points from the evidence.’ (para 71).

That time allows you to think about whether (a) you have the most reliable / total evidence on this ‘new issue’ and (b) exploring how it’s to be treated affording fairness to all parties. This will be a judgement call specific to the circumstances of the case. BUT you must raise it with your Judge.

The Court of Appeal is unlikely to have any sympathy with an argument of ‘unfairness’ if you have not been keeping a close eye (and managing) whether the issue is ‘off piste’ to the extent that you cannot get back on track. ‘As Snowden LJ observed in the course of the hearing, the greater the extent of the disparity, the greater the need for procedural safeguards.’ (para 70)

Written by Lisa Edmunds, CEO, Senior Consultant Barrister and Arbitrator

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