Re T (a child)
| Jurisdiction | England & Wales |
| Judge | KITCHIN LJ,THE SENIOR PRESIDENT OF TRIBUNALS |
| Judgment Date | 06 December 2016 |
| Court | Court of Appeal (Civil Division) |
Practice and procedure – Case management directions – Fact-finding hearing abandoned – Whether fact-finding hearing necessary, proportionate and fair – Factors to consider under PD 12J – Distinction between collective and individual proportionality.
The Polish parents and the child were all living in England when the father applied for contact with the child in April 2013. The mother resisted the application, alleging sexual, physical and emotional abuse perpetrated against her by the father from when she was 12 to 18. She also alleged that the child had been present during some of the physical abuse and that the father had physically abused the child. The father denied the allegations and was seeking unsupervised contact. Because of the seriousness of the allegations, the court gave directions for special measures to be put in place in order to hear the mother’s oral evidence. Five separate attempts were made to hold a finding of fact hearing, but for various reasons the hearing was not able to go ahead. The mother was now married to another man, with whom she was about to have a baby. She wanted to relocate to Poland with the child, now aged 7.
In August 2016 the mother failed to attend the sixth attempted fact finding hearing because she and the child had remained in Poland beyond the holiday period approved by the court; apparently (a) complications had arisen during the mother’s pregnancy and (b) the child was ill with shingles. The child’s guardian was recommending an increase in the child’s contact with the father, but on the basis that her position as to the nature and extent of that contact was dependent on the findings that the court still had yet to make.
The judge ordered the mother to return the child to the UK, or to ensure that the child was returned to the UK in the care of the mother’s husband, and ruled that despite the mother’s allegations, it was no longer necessary or proportionate for there to be a fact-finding hearing before the welfare issues were determined. The judge canvassed the possibility that the child would have to be placed in foster care if no adult would be remaining in England with the child. The mother appealed.
Held – (1) In relation to necessity, the judge had failed to consider why the court had previously thought it necessary on more than one occasion to order a fact-finding hearing and had failed to consider all the factors in the case, having regard to the guidance given in PD 12J. The patent factors in play
included: whether the mother’s allegations were the basis for her position in relation to the father’s contact; whether the mother’s position as to contact was genuine; and whether any one or more of the allegations, if found to be true, would represent the existence of a direct risk to the child or of an indirect risk arising out of the impact of any continuing contact between father and son on the mother’s care for the child. The underlying welfare analysis necessitated determination of the truth of the allegations in order to draw appropriate inferences from them (see [13], [15], below).
(2) A more proportionate and fairer way of dealing with the case management issue would have been to adjourn the finding of fact hearing to a new date when the welfare disposal would also be undertaken. The mother could have been warned on the face of the adjournment order that the finding of fact hearing (and the welfare hearing) would not be adjourned again and that inferences might be drawn from her failure to attend. Retaining the finding of fact direction and making effective orders for the final hearing would not have delayed the case any longer than any appropriate hearing which permitted the mother to participate in the welfare determination (see [17], [18], below).
(3) Further, the judge had failed to deal with both collective and individual proportionality. The former was about the effective and efficient administration of justice (ie all of those cases waiting to be heard in the justice system), whereas the latter was about justice in the individual case. There had been no consideration of estimated lengths of hearing, waiting times or options for more effective disposal of the individual case, for example by video hearing. A judge was entitled to be informed by these, among other matters, when considering the overriding objective in FPR rule 1.1 (see [19], below).
Statutory provisions referred to
Family Procedure Rules 2010, SI 2010/2955, r 1.1, r 1.4, r 1.4(2)(m), PD...
To continue reading
Request your trial
-
Table of Cases
...2 FCR 173 39 T & M (Adoption), Re [2010] EWHC 964 (Fam), [2011] 1 FLR 1487, [2011] Fam Law 337 6 T (A Child), Re [2016] EWCA Civ 1210, [2017] 1 FCR 428, [2016] All ER (D) 48 (Dec) 86 Table of Cases xxix T (Adoption: Contact), Re [2010] EWCA Civ 1527, [2011] 1 FLR 1805, [2011] Fam Law 223, [......