Case Law Update: Is a Separate Fact Find Necessary



Melissa Vaughan is a member of Oriel Chambers family team.

Here Melissa provides a case law update on whether the courts should consider ordering separate fact findings hearings.

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Melissa is currently in the middle of a seventeen-day fact finding hearing however, this case should be at the forefront of practitioner’s minds when considering the need for potential separate lengthy fact finds when the issues are relatively narrow.

In Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) Lieven J was considering the listing of a hearing in care proceedings.  The local authority and guardian requested a five-day final hearing while the parents sought a separate 20-day fact-finding hearing.

In this case, there was an eleven-year-old child who died.  The threshold allegations went "way beyond" the child's death and extended to drug use by the parents, emotional harm and failing to meet the needs of the children including a lack of supervision, domestic abuse and neglect.  The child who died had cerebral palsy, could not walk, move, hold his body weight and was non-verbal.  There was no dispute that the child died from drowning in the bath.  

The issue on the parental evidence was described by Lieven J in this way:

"It is apparent from this account that there are only two areas of factual dispute between the parents: what precisely DE said to the Mother in the kitchen before he went out, and who left the taps on. The police have now decided not to charge either parent with murder or manslaughter, but a decision has not yet been made as to whether they will be charged with drug related offences."

The issue of the child's death was live and before the court.  The local authority and guardian argued that it could be determined in a five-day composite final hearing but the parents sought a 20-day fact-finding hearing with multiple witnesses.

In setting out the courts approach, Lieven J recorded that there was a broad discretion in relation to case management decisions.  The starting point was rule 1.1 of the FPR.  The Court of Appeal in Re H-D-H (Children) [2021] EWCA Civ 1192, [2021] 4 WLR 106 had confirmed the continued applicability of the principles set out by Mr Justice McFarlane in A County Council v DP [2005] EWHC 1593 (Fam), [2005] 2 FLR 1031, in particular

"24. The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

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.

25. I am well familiar with the concept of 'necessity', arising as it does from ECHR Art 8 and, indeed, from the pre Human Rights Act 1998 case law to which I have been referred. It is rightly at the core of Mr Tolson's submissions in this case and, without overtly labouring the issue by including substantial descriptive text in this judgment, it is at the forefront of my consideration of the point. Amongst the pertinent questions are: Is there a pressing need for such a hearing? Is the proposed fact finding hearing solely, as Mr Tolson puts it, 'to seek findings against the father on criminal matters for their own sake?' Is the process, which will be costly and time consuming, with potentially serious consequences for the father if it goes against him, proportionate to any identified need?"

Lieven J held that in the case before him, delay in planning for the children was a particularly substantial factor.  The welfare of the children was not paramount in this consideration.  The impact on court resources and other cases is a relevant consideration but the true question is whether a fact-finding hearing was necessary:

"As the President of the Family Division set out in The Road Ahead (both 2020 and Addendum in 2021), in current circumstances the Family Courts do not have the resources to undertake hearings which do not meet the test of strict necessity. It is therefore essential that this test is properly applied, with appropriate scrutiny by the Court, even if the parties themselves do not argue against a fact-finding hearing. The Court must be careful to ensure that there is a proportionate and effective use of court time. It is well known that the family justice system has come under very severe pressure during the Covid pandemic.  Delays in the hearing of cases have become very much more lengthy and only through more rigorous case management will the delays be materially reduced.

The outcome in the present case is in my view clear cut. The factual dispute between the parents in relation to the child's death is a very narrow one, namely what DE said in the kitchen to the mother and who left the taps on. Only the parents were witnesses to these two events, save possibly for A, and none of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct, and thus best, evidence of the mother and DE's immediate responses at the time of the incident."

The court did not allow the 20-day fact find and a composite final hearing took place.

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