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Evidence, Practice and Procedure: Contact, appeals and death by kindness

Date:22 FEB 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsIn Re H (A Child) [2013] EWCA Civ 72 three senior judges in the Court of Appeal handed down a reserved judgement in a case concerning an 8 year old boy who was said by his mother (M) not to want to see his father (though he shows signs of enthusiasm to see him). M is making formal complaint to the local authority over a social worker who seems to have questioned her version of events [16]-[18].

There was already contact subject to conditions ordered and directed by three district judges. The case, which had started in Brentford County Court in the summer of 2011, was listed by order in July 2012 for a two and a half day (sic) final hearing in April 2013. The father applied for interim contact before that. At another interim hearing the case was released to the circuit judge. He heard submissions for a day [31]: that is, no evidence was heard. The judge relaxed restrictions on contact. The mother appealed on the basis that the judge should have conducted a fact finding hearing - ie heard evidence - before relaxing the restrictions; and that the judge's decision rendered the final hearing redundant. The Court of Appeal gave the mother permission to appeal but disallowed her appeal.

Black LJ asserted that the Court of Appeal would support ‘robust but fair case management decisions', and they will only intervene in limited circumstances where judge erred in principle or took into account irrelevant matters (Re TG (A Child) [2013] EWCA Civ 5; and see G v G (Minors: Custody Appeal) [1985] FLR 894, HL). The same is true of ‘welfare decisions' of the judge.

It is easy for a commentary to pick holes where not all the facts can be related by a judgement; but of the four or five district judge's appointments, it is fair to ask how many recorded that this was a contact dispute, and that the overriding objective turns on questions of proportionality, allotting to cases an ‘appropriate share of the court's resource' and having cases dealt with ‘expeditiously' (Family Procedure Rules 2010 r 1.1). If the parties lose control of a case, only judges can bring it back. FPR 2010 r 1.4 the case management duties on the court: courts must (obligatory) actively manage cases (r 1.4(1)); and that includes the list in r 4(2). How many of the four judges (below the Court of Appeal) complied with this duty: ticked off each item (where relevant) and made findings if any were in issue (the Court of Appeal judgement does not record if this was done). Was the 2 1/2 days ‘timetabled' in the sense of each witness and opening and submissions timed. Were the issues defined and the question asked: does this case justify this much of the court's time?

As is well known the Government propose that care cases should all be wrapped up in six months. Private law cases will become the poorer and poorer relation; and they will struggle ever to be heard unless case management judges bear in mind another of Lord Hoffman's comments in Piglowska v Piglowski ([1999] 1 WLR 1360, [1999] 2 FLR 763 at 785 (oft-cited  by Black LJ):

... there is the principle of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute. In a case such as the present, the legal system provides for the possibility of three successive appeals from the decision at first instance.... This cannot be right. To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness.

This was said of appeals; but if the same was said of contact disputes which have four judges allotted to them and (assuming half a day for all the district judge's appointments) four days of hearing, then surely death by Lord Hoffman's kindness looms? 

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Appeals is dealt with in Chapter 8, Case Management is dealt with in Chapter 5. 

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.