Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Court of Appeal; Longmore and Wilson LJJ; 10 September 2008)
A fact-finding hearing had been ordered into the alleged sexual abuse of four children by their elder sibling. There was a family history of making and encouraging false accusations of sexual abuse. The local authority believed that the mother had encouraged one of the children to embellish her account of abuse, and another to make a false allegation of sexual abuse. The local authority also suspected that the mother had put pressure on another child to retract her claims against the sibling. The three younger children were expressing a desire to return to mother's care. Shortly before the hearing, the mother stated that she believed that the children had been sexually abused by the sibling, that she accepted that she had failed to protect the children, and that the threshold criteria had been established. The eldest of the children alleging abuse attended the hearing, expecting to give oral evidence in some fashion (she had expressed a preference for video link). On the first day of the fact-finding hearing, the judge decided not to proceed on the basis that the hearing was no longer necessary. The mother subsequently expressed doubts as to whether the abuse had taken place. The local authority appealed the decision not to hold the fact-finding hearing.
The appeal was allowed. A judge who was considering whether to proceed with a fact-finding hearing already ordered had to weigh the previous decision that the exercise should be undertaken, and ask whether any circumstances freshly discovered should lead to a departure from the chosen forensic course. The judge should also weigh the costs already incurred in the assembly of the case on all sides and the degree to which a refusal to conduct the hearing at that stage would waste costs. Further the judge should weigh any special features such as, in this case, the fact that a child witness was in court and expecting to give evidence. A sudden decision to abort the hearing in circumstances in which, later, the findings not then made might after all be considered necessary, was to be avoided at all costs. The possibility of criminal proceedings against the sibling should not have helped to dissuade the judge from conducting the fact-finding hearing. It was not preferable, as suggested by the judge, for therapists to reach their own conclusions; professionals needed not just firm ground but the same ground, to operate on. The fact that the court was entitled to conclude that there was power to make a care order without giving any consideration to certain material in no way supported the conclusion that such material did not need to be considered before a decision was reached as to the optimum outcome for the children.